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United States v. Guy J. Westmoreland
Citations: 240 F.3d 618; 2001 U.S. App. LEXIS 2295; 2001 WL 125878Docket: 99-1491, 00-1348
Court: Court of Appeals for the Seventh Circuit; February 15, 2001; Federal Appellate Court
Guy J. Westmoreland was convicted of conspiracy to distribute a controlled substance under 21 U.S.C. § 846 by a jury in the U.S. District Court for the Southern District of Illinois. Westmoreland appealed, raising issues regarding the admission of hearsay statements, the trial judge's factual determinations, and the denial of his motion for a new trial. The Seventh Circuit Court affirmed the conviction but vacated the sentence. The case background reveals that Westmoreland managed a gas station in St. Louis, Missouri, which supplied fuel to Jeffco Trucking, owned by Richard Abeln. In 1997, Westmoreland and Abeln collaborated in a drug distribution operation involving cocaine and marijuana, with Westmoreland overseeing the sales and reimbursement to Abeln for the drugs imported via Abeln's private airplane. The operation took a darker turn when Abeln, unhappy in his marriage, conspired with Westmoreland and another employee, Deandre Lewis, to murder his wife, who was aware of the drug dealings. On December 27, 1997, Abeln's wife was killed during a staged robbery at CRT Aviation, arranged by the conspirators. Following the murder, Abeln confessed to police, implicating Westmoreland in both the drug conspiracy and the murder plan. His confession included detailed accounts of the murder, and evidence indicated Westmoreland had made multiple attempts to contact Abeln during the police investigation. Abeln made incriminating statements to both the police and his acquaintances, including Ryan and his prison cellmate Paul Barnett, which were consistent with his police confession but lacked detail regarding drug quantities. A police investigation led to a search of Jeffco Trucking on January 6, 1998, uncovering approximately 550.9 grams of cocaine in a vehicle primarily driven by Westmoreland. On February 10, 1998, pilot Tony Jestis informed police that he had flown for Abeln but was unaware of the flights' purpose; however, he admitted to occasionally transporting Westmoreland and picking up packages in Texas for him. Westmoreland and Abeln were indicted, but their trials were severed when the government sought the death penalty for Abeln. Westmoreland faced a single count of conspiracy to distribute a controlled substance. He was convicted on August 20, 1998, with the court determining he was responsible for 8.5 kilograms of cocaine, warranting a life sentence under the Sentencing Guidelines due to his involvement in the murder of Abeln's wife. Westmoreland appealed, challenging the admission of hearsay statements, the quantity of cocaine attributed to him, the application of the murder cross-reference in sentencing, and alleged violations of his Fifth and Eighth Amendment rights. During the appeal process, Westmoreland learned that Abeln claimed his wife was unaware of the drug conspiracy, which contradicted prior statements. This prompted Westmoreland to seek a new trial based on this new evidence. The appellate court remanded the case to the district court to address his motion for a new trial, which the district court ultimately denied. Westmoreland continues to pursue appeals regarding both the jury verdict and the sentence. Westmoreland's appeal raises four primary issues: (1) the admissibility of hearsay statements made by Abeln and Jestis, (2) the determination of the amount of cocaine relevant for sentencing, (3) the application of the Sentencing Guidelines murder cross-reference (U.S.S.G. sec. 2D1.1(d)), and (4) the denial of his motions for a new trial. Regarding the hearsay statements, they were admitted at trial under Federal Rule of Evidence 804(b)(3) as statements against interest. Westmoreland contests the admissibility of these statements based on Rule 804(b)(3) and the Confrontation Clause of the Sixth Amendment. For the hearsay rule to apply, three conditions must be met: the declarant must be unavailable, the statement must be against their penal interest, and there must be corroborating circumstances that support its reliability. The court must evaluate whether each part of a confession is self-inculpatory, following the precedent set in Williamson v. United States. Even if statements meet Rule 804(b)(3) criteria, they may still violate the Confrontation Clause unless they contain "particularized guarantees of trustworthiness." The court cites Lilly, indicating the inherent unreliability of accomplice confessions, especially when made in the context of police involvement and without adversarial testing. In assessing Abeln's hearsay statements, the court agrees he was unavailable due to his own capital trial. However, there is disagreement over whether his statements were genuinely self-inculpatory and whether they had sufficient guarantees of trustworthiness. Westmoreland specifically disputes several statements made by Abeln, claiming they do not qualify as self-inculpatory, including assertions about Westmoreland's drug connections, distribution activities, and involvement in a murder plot. Abeln's statements, except for one regarding a pick-up truck, were admissible under Rule 804(b)(3) as they demonstrated his knowledge of a drug conspiracy and were against his penal interest. These statements included claims about Westmoreland's drug dealings and a murder involving Abeln's wife. They did not appear to be an attempt to shift blame, as Abeln acknowledged his involvement in serious criminal activity, indicating awareness of substantial potential prison time. The district court did not err in admitting these statements under Rule 804(b)(3). However, for compliance with the Confrontation Clause, hearsay statements not within a firmly rooted exception must possess "particularized guarantees of trustworthiness." Abeln's statements made to police while in custody did not meet this standard, whereas statements made to his son and cellmate did. Although the admission of custodial statements violated Westmoreland's Confrontation Clause rights, the error was deemed harmless. Westmoreland also contested the admission of Jestis' statements, which were found admissible since Jestis was unavailable to testify due to invoking the Fifth Amendment. Nonetheless, Westmoreland argued that Jestis' statements were not against his penal interest, as he claimed ignorance of any unlawful intent regarding his flights. Jestis disclaimed knowledge of Westmoreland's drug distribution, yet his statements were admissible as they were against his self-interest under a conscious avoidance theory, which applies when a defendant is linked to a group while consciously avoiding knowledge of its illegal activities. His admission of association with Westmoreland and Abeln, coupled with his denial of understanding the flight's purpose, could implicate him in the conspiracy. However, the admission of these statements violated the Confrontation Clause since they were made during police interrogation, similar to the analysis applied to Abeln's statements. Jestis' statements were deemed self-exculpatory, as they aimed to shift blame away from himself while potentially harming his associates. Errors related to hearsay statements might not overturn a conviction if they are found to be harmless; factors include the significance of the testimony, whether it was cumulative, if corroborating evidence existed, and the overall strength of the prosecution's case. Here, most contested hearsay did not pertain to Westmoreland's drug conspiracy charges but rather to Abeln's murder, and Westmoreland did not contest their relevance or potential prejudice. Thus, it was unlikely these statements affected the jury's verdict, which focused solely on Westmoreland's involvement in the drug conspiracy. There was substantial evidence of Westmoreland's guilt, including phone records and a conversation expressing concern over drug matters, along with cocaine found in his car. Since the admitted hearsay was largely duplicative of properly admissible statements, any error in admitting it was harmless, affirming Westmoreland's conviction for conspiracy to distribute a controlled substance. Westmoreland challenges his sentence based on two issues: the drug quantity attributed to him and the imposition of a murder cross-reference. He argues both a factual and a constitutional basis for contesting the attribution of 8.5 kilograms of cocaine. Focusing on the factual argument first, under the Sentencing Guidelines, his range would have been 63-78 months if sentenced only for the 550.9 grams of cocaine found in his car. He contends the district court improperly relied on Abeln's hearsay testimony to impose the higher quantity, increasing his range to 121-151 months. The determination of drug quantity is subject to review for clear error. Westmoreland claims the hearsay was untrustworthy, qualifying the court's reliance as clear error. While Abeln's statements are inadmissible evidence under the Lilly standard, the district court can consider a broader range of reliable information for sentencing. The court found that Abeln's hearsay statements, while inadmissible in a jury context, could still be considered for sentencing if they had sufficient indicia of reliability. Abeln's admission of transporting eight kilograms of cocaine, which risked his prosecution and a potential life sentence, was deemed credible. Additionally, Abeln's claims were consistent with other evidence, including his reported earnings and the communications linking Westmoreland to a drug conspiracy involving multiple trips to Texas. Consequently, the court affirmed the attribution of 8.5 kilograms of cocaine to Westmoreland for sentencing purposes, ruling that it did not err in its decision. The district court's determination of drug quantity as a sentencing factor under 21 U.S.C. § 841 is upheld against constitutional scrutiny. Historically, courts have treated drug quantity as a sentencing factor rather than an element of the crime of possession with intent to distribute. This distinction was called into question by Supreme Court cases, particularly Jones v. United States and United States v. Castillo, where the Court classified certain statutory enhancements as elements of the crime rather than mere sentencing factors. However, the court maintained that, despite the implications of Castillo, the precedent established by Jones remained valid, affirming drug quantity's status as a sentencing factor due to the clear separation between the definitions of the offense and the corresponding penalties outlined in § 841. Specifically, § 841(a) defines the unlawful act of possession with intent to distribute, while § 841(b) delineates the penalties based on drug type and quantity, with varying maximum sentences. Following the Supreme Court's ruling in Apprendi v. New Jersey, which mandated that any fact increasing a sentence beyond the statutory maximum must be presented to a jury and proven beyond a reasonable doubt, the previous interpretation of § 841 was challenged. Apprendi emphasized that facts enhancing a sentence, aside from prior convictions, must be included in the indictment and determined by a jury, thereby raising constitutional concerns regarding how drug quantity is treated under the statute. The ruling establishes that following the precedent set by Apprendi, the distinction between the elements of a crime and penalty provisions under 21 U.S.C. § 841 can no longer be used to bypass constitutional concerns regarding drug quantity determinations. If a sentencing judge determines drug quantity instead of a jury, it violates a defendant's rights if the resulting sentence exceeds the lowest statutory maximum, which must be assessed without considering drug quantity unless it is included in the indictment or presented to the jury. For instance, a defendant charged solely with possession with intent to distribute cocaine faces a maximum sentence of 20 years. Many other circuits have aligned with this interpretation, ruling that enhanced penalties under § 841(b)(1)(A) and (B) cannot be applied without a jury finding on drug quantity. The Supreme Court has prompted several circuits to reassess their decisions in light of Apprendi, indicating a potential shift in understanding that drug quantity is not merely a sentencing factor but a necessary element for increased sentencing. This court has followed suit in United States v. Nance, overruling earlier cases that treated drug quantity as a sentencing factor. In evaluating Westmoreland’s appeal regarding the constitutionality of the district court's drug quantity determination, the court applies a plain error standard, which requires the defendant to show that an error occurred, that it was plain, and that it affected substantial rights. Although the government acknowledges that an error occurred and that Apprendi applies to § 841, such concessions do not absolve the court from independently resolving the legal issues, especially given the significance of Apprendi's application within the circuit. The court proceeds to analyze Westmoreland's claim under this framework. Error analysis regarding the drug quantity finding in this case hinges on the Apprendi requirement that drug quantity must be both charged in the indictment and submitted to the jury for enhanced sentencing. The indictment adequately charged drug quantity by setting forth the necessary elements of the offense, allowing Westmoreland to prepare for trial regarding the potential for a life sentence under 21 U.S.C. § 841(b)(1)(A). Although the indictment's language concerning over a year of drug distribution may not be robust, it provides sufficient context to indicate significant quantities of cocaine. Consequently, no error occurred concerning the indictment. However, the jury was not instructed on drug quantity, a critical oversight since the sentencing judge based Westmoreland's sentence on a quantity that exceeded the 20-year maximum under § 841(b)(1)(C). This failure violated Westmoreland's rights and met the first two criteria of plain error analysis, confirming that a plain error existed. To assess whether this error affected Westmoreland's substantial rights, it must be shown that the error influenced the outcome of the proceedings. Although some forfeited errors can be corrected regardless of their impact, this case does not fall into that category. The omission of jury instructions on an essential element is generally not a per se reversible error, but it is typically a significant enough error to warrant reversal. Westmoreland must demonstrate that the error in his trial was prejudicial. He has established that the district court's proceedings would likely have yielded a different outcome had the jury been tasked with determining the drug quantity. The evidence initially presented included approximately 550.9 grams of cocaine found in Westmoreland's vehicle and a confession from Abeln, who stated he imported eight kilograms of cocaine. However, Abeln's confession was inadmissible, meaning the jury only considered the 550.9 grams, which would justify a sentence of five to 40 years, not a life sentence. Although there was additional evidence regarding drug quantity related to Abeln's earnings from drug transactions, the jury received no instructions to derive quantity from this information. The severity of the error is highlighted by the application of the Sentencing Guidelines, which led to a life sentence based on a determination of 8.5 kilograms of cocaine. Had the jury been correctly instructed, it would likely have attributed only the 550.9 grams to Westmoreland, resulting in a significantly lighter sentence. The court's failure to ensure a jury finding on this essential element compromised the fairness and integrity of the trial, particularly since the issue of drug quantity was closely contested and supported by limited evidence. Therefore, the absence of a jury charge on quantity led to an unjustifiably harsher sentence than what would have been imposed had the jury been informed solely of the admissible evidence. A finding against Westmoreland could have led to a maximum sentence of 40 years under section 841(b)(1)(B), and the failure to instruct the jury on this was deemed a clear and reversible error. The application of the Sentencing Guidelines' murder cross-reference (U.S.S.G. sec. 2D1.1(d)) is reviewed for clear error, while constitutional questions are assessed de novo. In this case, there was no clear error in applying the cross-reference to Westmoreland. Sentencing judges are not bound by the Federal Rules of Evidence when determining a sentence, allowing them to rely on hearsay and co-conspirator statements if deemed reliable. The facts used for sentencing must possess sufficient reliability, a standard less stringent than that for admitting hearsay evidence at trial. Westmoreland contested the lower court's consideration of hearsay and circumstantial evidence, arguing it did not establish his involvement in the murder by a preponderance of the evidence. However, consistent statements by Abeln about Westmoreland's involvement, along with Westmoreland's own incriminating statements in taped conversations, were deemed reliable by the district court. Consequently, the court correctly concluded that Westmoreland participated in the murder as part of the drug conspiracy. Furthermore, subjecting Westmoreland to the cross-reference did not violate his constitutional rights, as sentencing judges may consider conduct surrounding the offense regardless of charges or convictions. The Apprendi ruling does not extend to require that all facts increasing a sentence be charged to a jury, and thus the court declined to extend this principle in Westmoreland's case. Apprendi's rule is applicable solely to facts that elevate a defendant's sentence beyond the statutory maximum. Under the Sentencing Guidelines, the cross-reference cannot result in a sentence exceeding the statutory maximum for the charged offense. If the maximum sentence allowed by statute is lower than the minimum guideline range, the guideline sentence defaults to the statutory maximum. In situations where a defendant faces a statutory maximum of 20 years under section 841(b)(1)(C) and a 10-year guideline sentence for a drug charge, the murder cross-reference can only increase the sentence to 20 years, not beyond. Thus, Apprendi does not influence a judge's authority to enhance sentences under U.S.S.G. section 2D1.1(d), as this section cannot impose a sentence exceeding the statutory maximum related to the conviction. Regarding motions for a new trial, the denial is reviewed for abuse of discretion. A new trial is warranted when (a) the court is convinced a key witness's testimony was false, (b) the jury might have reached a different verdict had it known about the false testimony, and (c) the party seeking the new trial was surprised by the false testimony and could not adequately address it during the trial. However, mere speculation does not justify a new trial. In Westmoreland's case, the false testimony from witness Abeln pertained only to the murder of his wife and not to the drug conspiracy. Given the substantial evidence against Westmoreland, including cocaine found in his vehicle, it is likely he would have been convicted regardless of Abeln's testimony. Therefore, the district court did not abuse its discretion in denying Westmoreland's motion for a new trial. The government seeks discretion for either resentencing or retrial. The error related to Westmoreland's conviction involves the admission of hearsay statements, which the court deemed harmless. As a result, only resentencing is warranted, not a retrial. The judgment of conviction is affirmed while the sentence is vacated, and the case is remanded for further proceedings. Key hearsay statements admitted at trial included claims that Westmoreland was involved in the murder of Abeln's wife, participated in drug trafficking, and had financial motives tied to drug debts. The court noted that although the description of the getaway vehicle was inadmissible hearsay, its admission was considered a minor detail and harmless error. The government's argument regarding Westmoreland's Confrontation Clause claim was countered by the court, which stated that he did not waive the argument. The court referenced a precedent indicating the importance of direct witness testimony, yet found the hearsay in this case consistent and reliable. Additionally, the court clarified that Apprendi does not apply when sentencing falls below the statutory maximum, and it declined to address whether drug type must be included in the indictment for certain cases.