7th Circuit affirms convictions in heroin conspiracy

A couple convicted in a heroin conspiracy will not have their convictions overturned after the 7th Circuit Court of Appeals determined the district court did not err in its rulings on the composition of the jury, jury instructions or sentencing decisions.

While living in Illinois in 2010, Antwon Willis, who lived with his girlfriend Ericka Simmons, actively sold heroin and was eventually arrested after law enforcement used a confidential informant to purchase 50 grams of heroin from him. Several heroin users from Michigan City also testified to purchasing heroin from Simmons by texting Willis to ask for the drugs, then receiving instructions from to meet Simmons in a parking lot.

Additionally, Brittany LeMond and Derrick Penwell testified that they bought drugs from the couple by wiring money when they were working out-of-state. Willis instructed the couple to wire a total $18,485 in Simmons’ name in exchange for heroin to be sent to them through the mail. The total amount of heroin mailed “easily exceeded” 100 grams.

Willis was arrested in 2014 for his connection to an influx in heroin-related drug activity. A search of his home revealed various drug paraphernalia and a gun, and he was charged in the U.S. District Court for the Northern District of Indiana with conspiracy to distribute heroin and three counts of distribution.

Willis’ co-defendants in the federal indictment pleaded out, and a grand jury later returned a superseding indictment that named only Willis and Simmons and charged them with one count of conspiracy and five counts of distribution. The distribution counts were dismissed on the grounds that they related to Illinois drug transactions, so the couple proceeded to trial on only the conspiracy count.

Willis’ attorney then moved to adjourn the trial for a new jury panel to be drawn when only one of the 48 potential jurors appeared to be black, but the court denied that request. The trial proceeded and Willis argued that he should be acquitted because the government had failed to prove a conspiracy.

The government, however, claimed Willis knew the witnesses against him were reselling some of the heroin, so a jury could conclude they were co-conspirators. Further, the government argued the indictment could proceed on a narrower theory that Willis had conspired with Simmons. The court agreed and instructed the jury that, “If you find there were two or more conspiracies and a particular defendant was a member of one or more of these conspiracies, you may find that defendant guilty of Count 1 if you further find that this proven conspiracy was included within the conspiracy alleged in Count 1.”

Simmons and Willis were also charged with conspiring to sell at least 100 grams of heroin. Both were found guilty as charged, and Simmons’ sentence was enhanced for possessing a gun during a drug trafficking offense based on the weapon that was recovered from their Illinois home.

On appeal, the couple first argued they were entitled to a new trial because black people were underrepresented on their jury. But in a Friday opinion, 7th Circuit Court of Appeals Judge Daniel Manion said the methodology for selecting the jury venire in the South Bend Division – pulling from individuals registered to vote – has been previously upheld.

Willis and Simmons also argued there was a fatal variance between the conspiracy charged in the indictment and the government’s proof at trial because the indictment only charged them with conspiring with “others,” not each other. But a reading of the indictment – which alleged “Antwon Willis…and Ericka Smith…conspired…with other persons” – can be understood as including a conspiracy with each other, Manion said.

Individually, Simmons argued on appeal the court erred in instructing the jury on the quantity of drugs involved in the conspiracy, but Manion said the instruction “expressly limited a defendant’s responsibility to quantities reasonably foreseeable to the defendant while a member of the conspiracy.” The judge also rejected Simmons’ challenge to her sentencing enhancement, finding the evidence was sufficient to establish possession of the gun.

The cases are United States of America v. Antwon Willis and Ericka Simmons, 16-2342 and 16-2375.