NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 9, 2010
Decided November 16, 2010
Before
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐2558
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 07‐10114‐001
MOZEL PALMER, Michael M. Mihm,
Defendant‐Appellant. Judge.
O R D E R
Mozel Palmer was convicted after a jury trial of a year‐long conspiracy to possess and
distribute powder and crack cocaine,
21 U.S.C. §§ 846, 841(a)(1), and possession with intent to
distribute cocaine on or about October 10, 2006,
id. § 841(a)(1). The conspiracy began to unravel
on October 10th when, in the early hours of the morning, police received a tip about drugs in
a motel room in Bloomington, Illinois. Officers found Kourtney Rottunda, one of Palmer’s co‐
conspirators, living there. She consented to a search that uncovered 144 grams of crack and 604
grams of powder cocaine, as well as firearms and drug paraphernalia. Rottunda agreed to
cooperate. She testified at Palmer’s trial that the drugs had been purchased by Palmer and
Michael Sullivan in Chicago the previous day. After returning to Bloomington late in the
evening of October 9th, she continued, both Palmer and Sullivan met her at the motel room to
divide and package the drugs for further sale.
No. 09‐2558 Page 2
Sullivan, who eventually pled guilty and also testified against Palmer, confirmed that,
hours before the raid on the motel room, he and Palmer had returned to Bloomington with
cocaine they had just bought in Chicago. Each of them had taken a share of the drugs to sell,
Sullivan explained, but in addition he kept a communal share of drugs “on front” at the motel
room; “at any time,” he said, the other conspirators could stop by to replenish their allotment,
and in the past Palmer had taken advantage of that option. During 2006, Sullivan continued,
he and Palmer had made at least 30 trips to Chicago to buy crack and/or powder cocaine.
According to Sullivan, there were other trips to Chicago that year that Palmer did not make
himself, but even when he did not go along, he still contributed money and shared in the drugs.
Palmer denied any involvement in the drug conspiracy. He insisted that he had traveled
to Chicago with Sullivan merely to shop for clothing. And he said he never stopped by the
motel room, which he thought Sullivan and Rottunda were using for prostitution. The jury did
not buy Palmer’s story and instead found him guilty of both conspiracy and possession with
intent to distribute.
Palmer’s attorney filed a motion to withdraw and a brief pursuant to Anders v. California,
386 U.S. 737 (1967), arguing that Palmer had no non‐frivolous grounds for challenging his
convictions or his sentence. We ordered the lawyer to submit a second brief, see United States
v. Palmer,
600 F.3d 897 (7th Cir. 2010), and the lawyer, serving by appointment of the court, has
done so. Palmer did not respond to the Anders brief, and under these circumstances, we deem
waived any issues that Palmer or his counsel could have raised but that were not raised by
counsel in the second brief. Cf. United States v. Wagner,
103 F.3d 551, 553 (7th Cir. 1996)
(appellate court confines its review to issues raised by facially adequate Anders brief).
On appeal Palmer does not challenge the conspiracy conviction or his sentence; he
argues only that the government failed to prove that he possessed cocaine with intent to
distribute on or about October 10, 2006. His argument fails for two independent reasons. First,
reasonable jurors could have believed Rottunda’s testimony that Palmer and Sullivan had
brought a large amount of cocaine to the motel room hours before it was raided by police. In
that case, Palmer would have been in joint and actual possession of the cocaine in question
within the time charged in the indictment. Second, even if the jury had discounted Rottunda’s
testimony and concluded that Palmer was not in actual possession of the cocaine in the motel
room that night, the district court properly instructed the jury that Palmer was liable for all
foreseeable crimes committed in furtherance of the conspiracy. See Pinkerton v. United States,
328 U.S. 640, 646‐48 (1946); United States v. Haynes,
582 F.3d 686, 707 (7th Cir. 2009); United
States v. Stotts,
323 F.3d 520, 523 (7th Cir. 2003). And reasonable jurors could have found that
Sullivan kept the communal share of cocaine in furtherance of his year‐long conspiracy with
Palmer and others to purchase drugs in Chicago for sale in central Illinois. In that case, too,
No. 09‐2558 Page 3
Palmer would have been properly convicted on the charge of possession with intent to
distribute.
AFFIRMED.
