Court: Court of Appeals for the Seventh Circuit; February 18, 1994; Federal Appellate Court
The case involves eight appellants convicted of conspiracy under 21 U.S.C. § 846 and various counts related to drug crimes under 21 U.S.C. § 843, with appeals consolidated for decision. Between 1985 and 1989, David Avery operated a significant cocaine distribution network in Chicago, initially partnering with John Cappas before becoming rivals. Avery developed connections with suppliers, including Ilmi Fejzoski, and the other appellants also participated in the drug distribution framework.
James Abney began purchasing cocaine from Avery in late 1987 or early 1988, typically acquiring half-kilogram quantities on credit for resale, returning profits to Avery before obtaining more drugs. He engaged in approximately twenty-four transactions, supported by recorded phone conversations. James Brennan's involvement began in 1986 with smaller purchases, escalating to kilograms every few weeks, often in Avery's presence during resale activities. The document details the roles and activities of the appellants within the broader conspiracy orchestrated by Avery.
Brennan played a multifaceted role in drug distribution, assisting Avery in cocaine packaging and rerocking since 1988. He managed Avery's portable phone subscription, with Avery reimbursing him for the bills, and stored cocaine while police searched Avery's residence. Brennan also participated in a failed attempt to purchase ten kilograms of cocaine from James Kolalis. The government presented nine taped calls between Brennan and Avery concerning cocaine transactions.
Avery's relationship with Demopoulos began in 1986, initially selling him small quantities of cocaine, escalating to approximately 100 transactions involving amounts from one-eighth to eight ounces. After Demopoulos fell behind on payments, Avery required cash for all future sales. Two transactions included Demopoulos and Cheryl Evans, who paid Avery with checks.
The government introduced seven taped calls between Avery and Demopoulos, evidencing Demopoulos's involvement in resale, as Avery interpreted some conversations as references to Demopoulos's customers.
Avery met Havelka and Kozinski through a drug customer in 1986, with their purchases continuing until 1989, amounting to around 100 transactions. Havelka typically bought one to two ounces, while Kozinski purchased between one-eighth and three ounces. Similar to Demopoulos, Avery initially fronted cocaine but shifted to cash-only transactions due to overdue accounts.
Witness William Littlejohn testified to observing Avery's transactions with Havelka and Kozinski, noting Havelka's inability to pay during a sale. On March 16, 1990, DEA agents arrested Havelka and found drug paraphernalia and inositol powder in their shared residence with Kozinski. The government also introduced multiple taped conversations between Avery, Havelka, and Kozinski related to cocaine sales, with evidence suggesting Kozinski discussed her own customers during some calls.
E. Mark Morgan engaged in multiple cocaine transactions with Avery, purchasing the drug on at least five occasions, with the quantities ranging from one to three ounces. Witness testimony indicated that during two deliveries in June or July 1989, Morgan received between two to three ounces. Recorded phone conversations presented at trial revealed Morgan's involvement in resale, referencing his 'guys' planning to go to San Diego for business. He expressed concerns about the quality of cocaine, indicating some was 'all filler,' and subsequently communicated a need to purchase more cocaine, leading to another delivery of two ounces from Avery.
Jeannette Martinez, the girlfriend of major cocaine supplier Michael Pardo, assisted Avery by procuring and delivering cocaine when Pardo was incapacitated. She supplied Avery with one kilogram and helped package and deliver smaller amounts.
Ilmi Fejzoski was identified as a supplier to Avery, with Avery testifying to at least five transactions involving kilogram quantities. Notably, during one transaction, Avery paid Fejzoski for three kilograms while his girlfriend, Gina Jensen, was present.
Avery was arrested in October 1989, agreed to plead guilty, and cooperated with authorities, resulting in a Grand Jury indictment of twenty-nine defendants, including eight appellants. The defendants were divided into four trial groups. Kozinski, Havelka, Abney, Brennan, and Demopoulos were tried together; Morgan and Fejzoski had separate bench trials, while Martinez was tried alongside co-defendant Effran Herrera-Soto.
The appellants filed a consolidated brief raising common issues, while individual briefs were submitted for unique appeals, totaling over twenty distinct issues. In their joint trial, the five appellants sought to call witnesses to impeach the testimonies of Avery and his partner, Sam Musillami. However, Judge Plunkett ruled that the proposed testimony was inadmissible as it pertained to collateral matters and was excluded as extrinsic evidence.
The appellants contend that witness testimony they sought to introduce would serve as impeachment by contradiction regarding the conspiracy charge in the indictment, asserting that the accounts differ from those presented by government witnesses. Impeachment by contradiction is permissible when evidence demonstrates that a witness's testimony is incorrect, but it cannot pertain to collateral or irrelevant matters. A matter is considered collateral if it cannot be admitted for any purpose other than contradiction, and the determination of what constitutes a collateral matter is at the trial court's discretion. The appellants' challenge to the district court's rulings on the admissibility of testimony is assessed under an abuse of discretion standard.
Regarding Nick Mathews' testimony, the court ruled it collateral when defense counsel sought to introduce evidence that Mathews paid government witness Musillami $3,000, which contradicted Musillami’s uncertainty about the payment. The court found no justification for the testimony beyond contradiction and deemed it irrelevant to the drug conspiracy case, as it did not impact any material facts.
Similarly, for Thomas Briscoe’s testimony, which aimed to contradict Musillami's timeline of cocaine purchases from Avery, the court again ruled it collateral. The timing of purchases by a non-defendant was found irrelevant to the appellants' guilt or innocence. The defense failed to provide reasoning for its relevance, leading to the conclusion that the exclusion of both testimonies was a correct exercise of the district court's discretion.
Avery testified about a falling out with his former partner, John Cappas, which occurred during a drug debt collection involving a female customer. Avery claimed Cappas threatened the customer with a gun, leading to their arrests and the end of their business relationship. The defense sought to call Janet Harris, the customer, to testify that Avery was the one who threatened her, but the district court ruled her testimony irrelevant and collateral, as it did not significantly challenge Avery's credibility or relate to the business operations in question. The court emphasized that the events surrounding the Avery-Cappas relationship were merely background and did not pertain to the indictment's charges.
Additionally, the appellants argued that the buyer-seller defense should prevent conviction under 21 U.S.C. Sec. 843(b) for using a telephone to facilitate cocaine distribution, claiming their phone use was for personal purchase. The district court instructed the jury that facilitating drug distribution through telephone use does not depend on the intent or subsequent actions regarding the cocaine. The statute criminalizes the facilitation of distribution regardless of the buyer's status, affirming that engaging in any communication to ease distribution constitutes a violation. The court upheld the notion that the buyer-seller defense does not apply in this context, asserting that liability arises solely from the act of facilitating distribution.
Carol Kozinski presents three arguments for reversing her conviction. She claims the government did not provide sufficient evidence of her involvement in a conspiracy, contends that witness David Avery should not have been allowed to testify about telephone conversations he participated in, and insists she should have received jury instructions that buyer-seller status could serve as a defense to the telephone charges.
To establish conspiracy guilt, the government must demonstrate that the defendant was aware of the conspiracy and intended to join it. A jury verdict will only be overturned if no rational juror could have found all necessary elements of the crime beyond a reasonable doubt, considering evidence favoring the prosecution. Circumstantial evidence can suffice to prove a conspiracy.
A mere buyer-seller relationship does not constitute a conspiracy; there must be an agreement to commit an additional crime beyond the sale itself. If the arrangement only involves selling and buying drugs for personal use, no conspiracy exists, even if the buyer later resells the drugs, unless the resale was part of the original agreement. Conversely, if the buyer intends to distribute the drugs, a conspiracy is present.
The circuit lacks clear standards on evidence needed to prove a distribution agreement. Factors indicating a conspiracy include cooperative relationships, low transaction costs, large quantities of drugs, prolonged cooperation, and standardized transactions. If one party sells drugs to another who then distributes them, and the seller is aware of and benefits from the distribution, this may suggest a limited agreement to distribute.
Evidence presented at trial established a sufficient basis for the jury to conclude that Kozinski was a co-conspirator with Avery in drug distribution. Taped conversations revealed Kozinski's concerns about communication with Avery, suggesting she had customers awaiting cocaine supplies. Avery interpreted Kozinski's remarks as indicating she was reassuring a customer, supporting the inference of her role as a distributor. The financing arrangement, where Avery provided cocaine to Kozinski on credit, indicated a business relationship where he had a financial stake in her sales. The frequency and quantity of transactions—30 to 40 sales ranging from one-eighth ounce to three ounces, including during Kozinski's pregnancy—further suggested the drugs were intended for resale rather than personal use.
Kozinski's interactions with Avery, characterized by standardized requests for quantities and coded communication, along with evidence from a search of her residence that uncovered drug paraphernalia, reinforced the notion of a long-term, cooperative business relationship. This evidence strongly indicated that both parties were joint venturers in the drug trade.
Kozinski contested the admission of Avery's testimony regarding the context of their conversations, arguing that it constituted impermissible opinion testimony under Federal Rule of Evidence 701. The district court overruled this objection, and appellate review indicated no abuse of discretion, as Avery's insights stemmed from his direct involvement in the conversations. This precedent aligns with prior cases where witness interpretations of communications were deemed valid for jury consideration.
Avery's testimony about his mental processes during conversations is deemed competent and relevant, allowing the jury to assess the credibility of both his and Kozinski's interpretations. The district court's decision to permit this testimony is upheld. Kozinski's argument for a 'buyer-seller' defense regarding telephone charges is rejected based on previous rulings.
Havelka's challenge to the denial of his Motion to Suppress physical evidence and his sentence computation is noted. He was arrested at home by federal and state agents under a valid warrant, during which he gave written consent for a search. However, there were conflicting accounts of the events leading to this consent. The agents stated they acted professionally, while Havelka claimed coercion through threats, including Agent Lane allegedly pointing a gun at him. Despite these claims, he acknowledged that no physical abuse occurred and that all agents except Lane were polite.
The district court found the agents' account credible and ruled the consent voluntary, a determination that is upheld unless clearly erroneous. The court's assessment of consent voluntariness considers the totality of circumstances, including the defendant's age, education, rights advisement, duration of detention, and any potential coercive factors.
Havelka had the mental capacity to consent, as he was not physically or mentally coerced during a brief detention before consenting. He was informed of his Miranda rights and the option to refuse consent, and his nervousness had subsided by the time he agreed. The agents did not repeatedly pressure him, and Havelka indicated he had nothing to hide, supporting the district court's ruling of voluntariness. Havelka challenged his sentence computation under the Sentencing Guidelines, specifically arguing the court overestimated the cocaine attributed to him. The district court determined the amount based on co-conspirator Avery's testimony that Havelka purchased cocaine at least fifty times, conservatively estimating each transaction at half an ounce, totaling twenty-five ounces. Havelka's claim that he purchased only twenty-five times and smaller quantities lacked evidential support. Furthermore, he erroneously asserted that the court attributed transactions from another individual, Kozinski, to him, which the record refutes. Lastly, Havelka's argument regarding a denial of an 'Acceptance of Responsibility' reduction was incorrect, as the court had already granted him this reduction. The district court's determinations on both the cocaine amount and the acceptance of responsibility were thus upheld as not clearly erroneous.
Havelka argued for a downward adjustment in his Offense Level, claiming he was a 'minor participant' and an addict within the organization. However, he was found to be a significant distributor of cocaine, having purchased substantial amounts from Avery on numerous occasions, thereby playing a crucial role in the conspiracy. The district court's conclusion that Havelka was not a minor participant was upheld.
Havelka also contested the district court's calculation of his Criminal History under the Sentencing Guidelines. He received three Criminal History points: one for a prior sentence of supervision and two for committing federal drug offenses while under that supervision, classifying him in History Category II. Despite his arguments, the district court sentenced him to 60 months of imprisonment, within the guideline range of 57-71 months based on an Offense Level of 24.
The Sentencing Guidelines define a 'prior sentence' as any sentence resulting from an adjudication of guilt. Havelka had a prior charge in Illinois that led to an order of supervision but no evidence of a guilty plea or a finding of guilt was presented. The Illinois statute allows for deferred prosecution without a finding of guilt, indicating that Havelka's supervision did not constitute a 'prior sentence' under the guidelines. Therefore, the district court erred by assigning Criminal History points, and Havelka should have been classified in History Category I.
Despite this error, a remand for resentencing was deemed unnecessary as the error was classified as harmless. The district court was required to impose a minimum sentence of 60 months based on Havelka's involvement with 700 grams of cocaine, consistent with statutory requirements.
A defendant convicted of possessing 500 grams or more of cocaine faces a minimum sentence of five years in prison, per 18 U.S.C. Sec. 841(b)(1)(B). Even with a History Category of I, which typically suggests a sentence range of 51-63 months, the district court is mandated to impose a five-year sentence. The case involves Demopoulos, who contends that the trial evidence was insufficient to prove his involvement in the Avery drug conspiracy. However, evidence presented at trial revealed that Demopoulos made approximately 100 cocaine purchases from Avery, often buying eight ounces at a time. Although Avery initially fronted cocaine to Demopoulos, he stopped when payments were missed. The price per ounce decreased with larger orders, indicating a commercial relationship.
Avery's testimony and recorded phone conversations indicated that Demopoulos intended to resell the cocaine. Demopoulos frequently used checks from Cheryl Evans, an acquaintance, to pay Avery. During phone calls, Demopoulos expressed urgency in obtaining cocaine for his customers, and Avery's responses suggested he understood Demopoulos was discussing payment from his own customers. The jury had ample evidence to determine that Demopoulos and Avery were engaged in a conspiracy to distribute cocaine, supported by Demopoulos's numerous transactions, bulk purchasing, and the structure of their payment arrangements. Demopoulos also claims that he was denied effective legal counsel during the trial.
Demopoulos asserts that his attorney provided ineffective assistance by calling Cheryl Evans as a defense witness, as her testimony supported a key part of Avery's testimony regarding checks given for cocaine purchases. The prosecution argued that Evans was a resale customer of Demopoulos, while Evans' testimony aimed to clarify that the checks were loans rather than payment for drugs. The jury, however, either rejected Evans' testimony or favored Avery's account, leading Demopoulos to claim that calling Evans harmed his defense. To prove ineffective assistance of counsel, Demopoulos must demonstrate (1) that his attorney's performance was below an objective standard of reasonableness and (2) that there was a reasonable probability that the outcome would differ but for those errors, as established in Strickland v. Washington. The standard requires a presumption that counsel's actions fall within a reasonable range of professional assistance, especially concerning strategic decisions like calling witnesses. The court found that the attorney's choice to call Evans was justified to counter Avery's claims, which were pivotal to the prosecution's conspiracy argument. Thus, the decision was deemed competent, regardless of the jury's belief in Evans' testimony.
Separately, Brennan contends that he was improperly sentenced under the Guidelines due to an inflated cocaine quantity not supported by evidence. The court is mandated to consider only the amount of cocaine Brennan was directly involved with or could foreseeably be linked to in drug conspiracy cases. The court determined Brennan was responsible for at least fifteen kilograms of cocaine, based on his admission of involvement with two to three and a half kilograms and an additional ten kilograms from a joint purchase attempt with Avery.
The court determined that the total amount of cocaine attributable to Brennan exceeded fifteen kilograms, supported by evidence of his involvement in a failed attempt to purchase ten kilograms in 1988 with Avery. Brennan was driving while Avery carried $175,000 for the transaction, and despite not completing the purchase, their discussions afterward indicated conspiratorial involvement. Brennan admitted to handling two to three and one-half kilograms, contributing to a total of at least twelve kilograms. Testimony indicated Brennan was rerocking cocaine at a rate of one kilogram per month and purchasing half a kilogram every two to three weeks, further supporting the court's conclusion.
Brennan also challenged the denial of his motion to sever his trial from other defendants, arguing that their buyer-seller defense undermined his position as a supplier/distributor, creating unfairness. However, his argument was weak and vague, lacking specific actions by the court that contributed to unfairness. The court cited the Supreme Court ruling in Zafiro v. United States, which stated that antagonistic defenses alone do not warrant severance. Thus, the district court was found to have acted within its discretion in denying the motion for severance. Additionally, F. Mark Morgan was convicted of conspiracy to distribute cocaine and related charges after a bench trial, with challenges to his conviction and sentence addressed subsequently.
Morgan challenged the sufficiency of evidence for his conspiracy conviction, asserting that the government did not present adequate proof. The government relied on witness Avery's testimony and recorded phone calls between him and Morgan, while Morgan countered with his own testimony and other evidence. The district court evaluated the credibility of both parties and deemed the government's evidence credible, rejecting Morgan's claims.
The evidence illustrated a continuous relationship where Morgan received cocaine from Avery, often on credit, for distribution. In a recorded call, Morgan discussed the need for significant transactions due to his customers' impending departure and expressed dissatisfaction with a previous cocaine delivery, indicating quality issues. Testimonies revealed Morgan purchased cocaine in ounce quantities and received multiple deliveries from Avery, who frequently extended credit.
The district court inferred from their interactions that a conspiracy existed, leading to Morgan's conviction. The court determined that a rational fact-finder could conclude Morgan knowingly participated in a conspiracy to distribute cocaine. Both parties benefited from their arrangement, which supported the notion of a cooperative effort towards a shared goal of distribution.
Morgan also contested the district court's calculation of the cocaine quantity for sentencing, claiming it was based on an erroneous assessment, but such determinations would only be overturned if found clearly erroneous. The court affirmed Morgan's conspiracy conviction.
Avery, Morgan's co-conspirator, testified about his cocaine dealings with Morgan in 1989, indicating they occurred twice a month for approximately nine months. The district court conservatively concluded that Morgan engaged in five transactions over two and a half months, attributing one ounce of cocaine per transaction despite evidence suggesting he purchased two to three ounces. Thus, Morgan was sentenced based on five ounces. The court found adequate evidence for these findings, which were considered conservative estimates, leading to the conclusion that the district court's determinations were not clearly erroneous.
Morgan claimed ineffective assistance of counsel, citing six alleged errors: failure to subpoena telephone records, submission of a short post-trial motion, not calling his drug counselor as a witness, failing to subpoena Michael Torres, not pointing out inconsistencies in Avery's testimony, and delivering a disorganized closing argument. Under the Strickland v. Washington standard for ineffective assistance claims, Morgan did not demonstrate prejudice from the first four errors. The telephone records were voluntarily provided, the short post-trial motion was later supplemented satisfactorily, the drug counselor's testimony was inadmissible hearsay, and Torres' potential testimony would not have altered the trial's outcome due to existing evidence against Morgan, including incriminating phone conversations with Avery.
The remaining two errors regarding cross-examination of Avery required more scrutiny; however, the overall conclusion was that Morgan's counsel did not perform ineffectively in a manner that affected the trial's result.
Counsel's cross-examination revealed numerous inconsistencies and was comparable in depth to the direct testimony. Any failure to uncover additional prior inconsistent statements was attributed to trial strategy, which warrants "enormous deference" and does not indicate constitutionally deficient performance, as supported by United States v. Hirschberg. Morgan's assertion that his counsel's closing argument was disorganized and ineffective is unfounded. He misinterpreted a statement regarding the credibility of government witnesses, which was meant as hyperbole to emphasize their unlikelihood of truthfulness. Another remark about the absence of visual aids was merely an introduction to a detailed discussion and reflected thorough preparation, not disorganization. Counsel effectively highlighted weaknesses in the prosecution's case and provided strong arguments for Morgan's defense as an addict rather than a distributor, leading to the conclusion that Morgan received effective assistance of counsel.
Additionally, while the appeal was pending, Morgan sought a new trial based on newly discovered evidence from a witness, James Doorn, who claimed to have seen Avery deliver cocaine to Morgan. Doorn's testimony suggested that Morgan was a minor player, which he claimed to have shared with prosecutors before the trial. Morgan's motion for a new trial under Federal Rule of Criminal Procedure 33 was denied by the district court, as he failed to demonstrate that the evidence came to his knowledge only after the trial.
A new trial may be granted if new evidence meets four criteria: it could not have been discovered sooner with due diligence, is material rather than merely impeaching or cumulative, and would likely lead to acquittal in a new trial. The trial court has discretion in deciding whether to grant a new trial, and its decision is only reversed if an abuse of discretion is found. In this case, the district court ruled that the new evidence presented was merely cumulative and would not have changed the outcome. Judge Plunkett, who presided over the original trial, found Morgan's defense to be incredible and gave more weight to the testimonies of Avery and Musillami, along with incriminating phone conversations. Morgan’s claim that the government suppressed exculpatory evidence from Doorn was addressed by the district court, which assumed the evidence was suppressed but found it not material to the trial's outcome. For a Brady challenge, suppressed evidence must show a reasonable probability of changing the trial's result. The district court concluded that Doorn’s testimony would not have affected the trial's outcome and found Morgan's defense incredible, with no support from Doorn's evidence. Morgan argued that Doorn's testimony would have corroborated his defense and impeached Avery, but the court found no merit in these claims.
Doorn's testimony regarding Morgan's initial status as a "new guy" in cocaine purchases does not weaken other evidence indicating Morgan's significant involvement with Avery. Doorn also testified to two instances of Morgan purchasing small amounts of cocaine, which adds little to the existing evidence and is unlikely to support Morgan's defense. Consequently, the district court found that the allegedly suppressed evidence was not material and could not substantiate a Brady violation. Morgan's claim that the evidence could impeach Avery is also deemed unpersuasive, as it is considered cumulative impeachment. The district court noted that Avery had already been thoroughly impeached, relying on corroborative testimonies, including that of Musillami and Morgan's own statements. As such, the suppression of additional impeachment evidence does not warrant a Brady violation, and the district court acted within its discretion in denying Morgan a new trial or acquittal.
In the case of Martinez, convicted of conspiracy and drug-related telephone offenses, the key evidence included testimonies from her cousin Acuna and Avery, who provided differing accounts of the amount of cocaine delivered by Martinez (eleven grams versus one kilogram). The jury found Martinez guilty based on Avery's testimony, which the district court deemed credible. Martinez contended she needed a special verdict form to address the differing amounts of cocaine, arguing it would impact her sentencing. However, the court determined that the jury's role was limited to assessing guilt or innocence, not the specific quantity involved, aligning with precedent that the jury does not decide sentencing factors.
The quantity of drugs is not a factor in determining conspiracy charges; therefore, juries do not need to consider it. The judge, post-conviction, assesses the drug amount by a preponderance of the evidence for sentencing purposes. Even if a jury finds a defendant possessed a lesser quantity, the judge can impose a sentence based on a larger amount. In this case, Martinez's argument that conspiracy to possess different quantities constitutes distinct crimes is incorrect; both scenarios fall under the same statute (21 U.S.C. Sec. 846) and are treated differently only in sentencing. Consequently, she was not entitled to a special jury verdict regarding the drug amount.
Fejzoski, convicted of conspiracy, challenges the district court's determination attributing seven kilograms of cocaine to him, asserting that three kilograms should not count based on witness testimony. Appellate review of factual determinations is for clear error, and credibility assessments lie with the trial judge. The court found the witness's account credible and complete, thus upholding the district's finding. Fejzoski also sought a sentence reduction for "Acceptance of Responsibility," which was denied. His argument that he accepted responsibility by contesting only the drug amount was deemed ineffective, as true acceptance would involve addressing the extent of his involvement during sentencing, not a full trial.
Fejzoski has not accepted full responsibility for his role in the Avery conspiracy, acknowledging only a fraction of his actions related to his conviction. The district court's ruling denying him a sentence reduction based on this limited acceptance of responsibility was deemed correct, as supported by precedent (e.g., United States v. Williams). The court affirmed the convictions and sentences of the appellants, who faced charges for conspiracy and distribution of cocaine under 21 U.S.C. Sec. 841(a)(1) and Sec. 846, specifically citing their use of telephones to facilitate drug-related offenses. Clarifications were made regarding the names of involved parties, and it was noted that Fejzoski had also pleaded guilty to related charges in Illinois. The court referenced additional cases, emphasizing the irrelevance of drug quantity alone in establishing conspiracy and reaffirming the applicability of prior sentencing under guidelines. Morgan's argument concerning a stipulation about phone conversation transcripts was rejected, as the court had not relied on the contested content. Further, arguments regarding lesser included offenses were dismissed, as the nature and quantity of substances pertained only to sentencing, not to the classification of charges. Overall, the court upheld its decisions against the appellants.
