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The 7th Circuit Court of Appeals has affirmed convictions and sentences in a wide-ranging challenge to rulings in a drug conspiracy case, affirming against the 10 defendants in all instances except one sentencing challenge. That one reversal prompted a dissent.
Senior Judge David Hamilton wrote the 90-page opinion Thursday for the 7th Circuit majority, which also included Senior Judge Diane Wood.
The case originally began with 14 defendants, who were charged and convicted of conspiracy to transport illegal drugs from Georgia for distribution in Kokomo. Defendant Pierre Riley was the drug source in Georgia, while defendant Reggie Balentine, based in Kokomo, pooled money from his co-conspirators to buy methamphetamine, cocaine and heroin from Riley.
In most instances, Riley and Balentine would arrange for couriers to either drive or travel by bus from Indiana to Georgia with cash to buy the drugs, then bring them back to Indiana.
Balentine would store the drugs in the homes of his associates and at other locations until the substances could be sold. Then, he would distribute the drugs to Michael O’Bannon, Michael Jones, Shaun Myers, Jason Reed, Derrick Owens, Perry Jones and Antwon Abbott.
After law enforcement foiled the drug ring — which included a murder plot — nine of the 14 defendants pleaded guilty. The remaining defendants were convicted at trial and were sentenced to lengthy prison terms.
The 10 defendants who appealed — Riley, Balentine, O’Bannon, Michael Jones, Reed, Myers, Perry Jones, Thomas Jones, Owens and Abbott — raised various challenges to their convictions and sentences, including challenges to pretrial rulings, jury selection, the admission of evidence and sufficiency of the evidence. But the 7th Circuit affirmed in full in all instances except one, remanding Thomas Jones’ case for resentencing.
The appellate court began its analysis with the defendant-appellants’ pretrial challenges. Specifically, the Indiana Southern District Court had denied two motions to suppress, one seeking to suppress evidence obtained through a wiretap and the second seeking to suppress evidence seized in the search of a home.
The wiretap challenge came from Michael Jones, Reed, Myers and O’Bannon, who raised their claims under 18 U.S.C. § 2518.
But the 7th Circuit affirmed the denial of the motions to suppress, finding the affidavits supporting the various wiretaps were sufficient to justify their use.
“According to the affidavit, investigators considered other techniques, such as using an undercover agent and applying for a search warrant, but these strategies were deemed to be either unsafe or ineffective,” Hamilton wrote, referencing a February 2018 wiretap affidavit. Likewise, a second wiretap affidavit filed in April of that year “described the same inadequacies of traditional techniques that justified the February wiretap.”
The motion to suppress evidence seized in the search of a home came from Abbott, whose home was searched in April 2018. He also moved for an evidentiary hearing to resolve a dispute about whether the home searched was actually his residence, but that motion was also denied.
As with the wiretap affidavits, the probable cause affidavit supporting the search warrant “offered sufficient facts to infer that the North Philips Street address was in fact Abbott’s residence,” Hamilton wrote. That included facts gathered through surveillance work and from Abbott’s own statements.
As for the actual seizure of evidence, “The affidavit referred to intercepted communications between Abbott and Balentine … in which Abbott ordered drugs. That last communication occurred just ten days before the warrant application.”
Further, “Abbott has not offered reason to think that the district court was misled by information in the agent’s affidavit, nor has he offered a genuine dispute about where he lived and when,” Hamilton wrote. Thus, “The district court did not abuse its discretion by denying Abbott’s motion without an evidentiary hearing.”
Moving to the trial itself, O’Bannon, Michael Jones, Reed and Myers each argued the district court erred in denying a Batson challenge to the government’s use of peremptory strikes to exclude two Black jurors.
Hamilton noted that 43% of eligible Black venire members had been excluded, compared to 13% of white venire members. But, he added, “The statistical evidence is equivocal at best … .”
“Only two strikes are disputed,” he continued. “And … the court properly focused on the credibility of the government’s explanations for those strikes.”
The appellate court agreed with the district court that the government offered race-neutral reasons for striking the two potential jurors in question.
The next issue on appeal was Myers, Reed, Michael Jones and O’Bannon’s challenge to the admission of testimony from a Drug Enforcement Administration agent who offered so-called “dual-role testimony” as both a law enforcement expert and a layman.
While the 7th Circuit noted the district court did not follow the suggested procedure in United States v.Jett, 908 F.3d 252 (7th Cir. 2018), which outlines how courts can address dual-role testimony, “the defendants have not persuaded us that they were prejudiced by the court’s handling of the agent’s testimony. We find no reversible error, though district courts should not use the instruction given in this trial as a model.”
Further, the district court offered to provide an instruction to the jurors to help them distinguish between the DEA agent’s different forms of testimony. The parties agreed to the proposed language of the instruction, “(b)ut the instruction the court actually gave was not what the parties approved.”
“The actual instruction was improvised and confusing,” Hamilton wrote. “Of greatest concern to us, it included an unexpected summary of the court’s findings on the factors used to determine the admissibility of expert testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), phrased as an endorsement of the testimony.
“… This type of explicit judicial endorsement of a witness’s testimony was not appropriate,” the judge continued. “Such an endorsement can be even riskier with dual-role testimony, where there is already a risk that the jury ‘might be smitten by an expert’s ‘aura of special reliability’ and therefore give his factual testimony undue weight.’”
Even so, the defendants did not object to the “improvised changes” at trial, and the 7th Circuit found no plain error.
“As a general rule, district judges should avoid the sort of endorsement of a witness that occurred here. The substance of the challenged testimony here, however, simply was not that important or controversial,” the 7th Circuit held. “… Moreover, the evidence against the defendants was strong, and we are not persuaded that any specific testimony by the agent was so critical as to cause us to question the reliability of the jury’s ultimate verdicts. We decline to reverse on this basis.”
Continuing their challenge to the agent’s testimony, the defendants next argued the government’s questioning of the agent did not distinguish the capacity in which he was testifying. The appellate court, however, said it was “confident that the jury could follow the nature of the agent’s testimony based on the flow of questioning.”
Lastly, the appellate court rejected the defendants’ argument that the district court abused its discretion when it allowed the agent to interpret whole phone conversations, rather than individual words or phrases. And in light of the “considerable evidence” of guilt, any error was harmless.
Next, Michael Jones, Reed and Myers argued the district court should have granted their motions for acquittal for insufficient evidence, specifically as to their convictions of conspiracy to distribute or possess controlled substances, possession with intent to distribute and/or money laundering.
The appellate court rejected each of those challenges, finding “(t)he jury was properly instructed on the difference between a conspiracy and a buyer-seller relationship, and it found all defendants guilty of conspiracy.”
As for Michael Jones’ conviction of possession with intent to distribute, there was no reversible error in the admission of witness testimony that went to an element of the offense. And as for his money laundering conviction, the appellate court determined his sufficiency challenge was waived but would not have succeeded waiver notwithstanding.
The last issue on appeal was sentencing, with six defendants arguing that enhancements were erroneously applied in their cases, two arguing the district court erred in its drug quantity calculations, three claiming the district court erred by relying on “inaccurate or unreliable information” in calculating sentences, one challenging the substantive reasonableness of his sentence and another asking the 7th Circuit to department from controlling Supreme Court precedent.
The only sentencing challenge that succeeded was that of Thomas Jones, who challenged the two-level firearm enhancement to his sentence.
At issue was a January 2018 transaction in which a buyer contacted Michael Jones, Thomas’ uncle, via social media to arrange a meth purchase, brought his wife, who carried a gun for “protection,” to a meeting with Michael, then got into Michael Jones’ vehicle, where Thomas was a passenger. The buyer met up with Thomas later that day to carry out the exchange of money for meth.
“On this record, application of the firearm enhancement to Thomas Jones was clearly erroneous,” Hamilton wrote. “There must be actual possession of a firearm by a co-conspirator for the enhancement to apply on a theory of possession related to jointly undertaken criminal activity.
“… The record here includes no evidence that Michael Jones or even the buyer actually possessed a firearm in connection with the January 2018 transaction,” the judge continued. “The evidence does indicate that the buyer’s wife wore a concealed firearm in that initial meeting, but Thomas Jones is not accountable for that firearm.”
Thus, Thomas’ sentence was vacated and his case was remanded for resenting.
Judge Thomas Kirsch dissented to that ruling, finding no error in the application of the firearm enhancement in Thomas Jones’ case. He looked to United States v. Luster, 480 F.3d 551 (7th Cir. 2007), and to trial testimony.
“The judge found credible the trial testimony of Michael Bradley, a drug dealer who purchased methamphetamine from Michael Jones on several occasions from the fall of 2017 to March 2018,” Kirsch wrote. “Bradley testified that Michael Jones was ‘always’ armed and never left his home without a gun. Bradley further testified that ‘[t]here was never a time that [Michael Jones] didn’t have a gun’ during their drug transactions.
“The majority eschews clear error review to discard the district court’s supported factual findings. But nothing in the record suggests that the district court made a mistake,” the dissent continued. “… The majority might view Bradley’s testimony differently than the district judge, but our ‘task on appeal is not to see whether there is any view of the evidence that might undercut the district court’s finding; it is to see whether there is any evidence in the record to support the finding.’
“… Because the majority holds that the district judge clearly erred at step one (of Luster), it does not address whether Michael Jones’s gun possession was reasonably foreseeable to Thomas Jones. Clearly, it was,” Kirsch concluded. “… In sum, I respectfully dissent from the majority’s holding that the district court clearly erred in applying the firearm enhancement based on Michael Jones’s possession at the January 2018 transaction.”
The dissent added, “But this holding does not bar application of the enhancement for a different reason on remand.”
The majority responded to the dissent in a footnote, writing, “We do not read Luster to hold that a co-conspirator’s habit of carrying a gun is enough to establish that he actually possessed a firearm during the jointly undertaken criminal activity.”
As for the remaining sentencing challenges, the 7th Circuit found no reversible error at the district court.
The case is United States of America v. Thomas Jones, et al., 20-1405, 20-1442, 20-2112, 20-2304, 20-2420, 20-2458, 20-2462, 20-2498, 20-2499, 20-3266, 21-1002.
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