7th Circuit: cousins conspired to sell heroin; another gets new trial

The 7th Circuit Court of Appeals said two cousins conspired to distribute heroin, despite the claim from the defendants they were running separate heroin businesses.

A third defendant argued he had a buyer-seller relationship and the jury did not consider it; the 7th Circuit agreed and remanded his case for a new trial to include the buyer-seller jury instruction.

Anthony and Brandon Lomax are cousins, and Brandon Lomax and Demond Glover are cousins. They were investigated by the government for conspiracy to distribute heroin, and over a three-month process the government observed them, gathering information. They were arrested, and a grand jury found them each guilty of conspiracy to distribute or possess with intent to distribute 1,000 grams or more of heroin.

Circuit Court Judge Ann Claire Williams wrote the decision in the case. She said evidence was sufficient to find Brandon Lomax and Glover guilty of conspiracy. There were communications between the two, and testimony suggested they shared a supplier, heroin and pooled funds, as well as customers. They also discussed their outstanding debt with a supplier, and Brandon Lomax sent a text to Glover saying he needed to borrow some heroin.

The 7th Circuit did find that the District Court should have instructed the jury on the difference between conspiracy and a buyer-seller relationship. Anthony Lomax bought heroin mostly from Brandon Lomax, and Anthony Lomax tried to get a customer to buy from him instead of his cousin, meaning they may have had a different supplier. Also, there was no evidence of the characteristics that distinguish a buyer-seller relationship from a conspiracy, so a rational jury could have rejected the theory that Anthony Lomax was part of the conspiracy. His case was remanded for a new trial.  

Brandon Lomax also argued his sentence is unconstitutional because his two prior convictions, which enhanced his sentence to life in prison, were not determined beyond a reasonable doubt. However, a sentencing enhancement based on prior conviction is not subject to this requirement, meaning the existence of his prior drug convictions was not a fact the jury was required to find.

Williams said the court found Glover was erroneously designated a career offender, but the error was harmless. The court did not rely on the career offender guideline when sentencing.

The cases are United States of America v. Anthony Lomax, Demond Glover and Brandon Lomax, 14-2811, 14-3189 and 14-3684.