Court: Court of Appeals for the Seventh Circuit; April 5, 2005; Federal Appellate Court
Ulice Askew appealed his conviction under 21 U.S.C. § 846 for conspiracy to possess with intent to distribute PCP, arguing that the evidence only established a buyer-seller relationship, not a conspiracy. He contended that the district judge erred by not providing a jury instruction on the buyer-seller relationship and inadequately responding to jury inquiries about the conspiracy count. Additionally, he claimed that the judge committed plain error by failing to suppress evidence obtained from an unconstitutional stop leading to his arrest.
The case's background involves Christine Williams, who worked for PCP distributor Napoleon "Pokey" Moore. After her arrest in December 2001, she began cooperating with the FBI and testified that she sold PCP to Askew regularly from 2000 to 2001, facilitated by Moore's pricing and credit arrangements. Williams stated that Askew purchased significant amounts of PCP, with monthly totals between sixteen and twenty ounces. Evidence included a recorded call on January 4, 2002, where Askew discussed a potential PCP purchase with Williams, identifying himself as "Pokey's guy" and inquiring about buying eight ounces. In subsequent communications, they discussed a meeting for a sale, with Williams proposing a price and payment plan for the PCP.
The court ultimately affirmed the conviction, supporting the conclusion that the evidence presented established a conspiracy beyond a mere buyer-seller relationship.
At 11:05 A.M., Williams contacted Askew to check his status, claiming she was arriving at their meeting point while actually being in the Dirksen Federal Building with FBI agents. Askew, who had already left the meeting place, agreed to meet her and described his location near a red truck. After a brief call, he indicated he was now in front of a theater but in a different car, leading to a call disconnection. Unbeknownst to Askew, FBI agents and Chicago police were monitoring the situation from unmarked vehicles. They identified Askew's silver Hyundai Accent, which was circling suspiciously, and conducted an arrest after blocking the vehicle. Upon arrest, Askew was found with $1,189 in cash.
While in custody, Askew confessed to purchasing one ounce of PCP from Williams for $200 in October 2001 and reselling it for $300, along with attempts to buy more PCP in November 2001 and a planned purchase of sixteen ounces on the day of his arrest. At trial, the prosecution's case relied on Williams's testimony, Askew's confession, a pen register showing eighteen calls to Williams, and recorded phone calls. Askew denied the charges, claiming he intended to buy stereo speakers for his brother's rap CD instead of drugs, and described his limited interactions with Williams and Moore, who introduced them. He also claimed his confession was coerced and that he signed it under pressure without reading it. The jury convicted Askew on all counts, attributing less than 100 grams of PCP to him for conspiracy.
At sentencing, the district judge attributed 8,000 to 10,000 grams of PCP to Askew for Count I and imposed a two-level enhancement for obstruction of justice due to Askew's false testimony regarding his involvement in the PCP conspiracy. He received a 210-month prison sentence for the conspiracy count, to run concurrently with sentences for two other counts.
Askew contests the sufficiency of evidence for his conspiracy conviction, arguing that the jury’s attribution of less than 100 grams of PCP contradicts the evidence of significant transactions presented by witness Williams. He suggests that the jury must have disregarded Williams's testimony in favor of his own claim of purchasing only one ounce (28 grams) of PCP. Askew posits that, without Williams's testimony, the evidence only indicates a buyer-seller relationship rather than a conspiracy.
The analysis notes that Askew's appeal is unique because it does not involve inconsistencies across different counts or with co-defendants. Instead, he argues that the jury's finding of a conspiracy is internally inconsistent with the lesser amount of PCP attributed to him.
Inconsistent jury verdicts in criminal cases do not warrant reversal of a conviction or a new trial, as established by case law, including United States v. Reyes. The Supreme Court has acknowledged that such inconsistencies can arise from various factors like mistake or compromise. The jury's specific reasoning for attributing less than 100 grams of PCP to Askew is unknown, and speculation about their deliberations is not permissible. Courts maintain a strong deference to jury decisions and assume they follow the law, while defendants are protected from irrationality through challenges based on insufficient evidence.
When evaluating a sufficiency of the evidence claim, all evidence is viewed favorably towards the prosecution, affirming the verdict if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Askew does not argue that the evidence, including witness Williams's testimony, is insufficient for a conspiracy conviction, focusing instead on a selective reading of the trial transcript. However, a review of the complete record shows sufficient evidence of a conspiracy involving Askew, Williams, and Moore, rather than a mere buyer-seller relationship.
To uphold Askew's conspiracy conviction, the government needed to demonstrate that two or more individuals agreed to commit an unlawful act and that Askew knowingly participated in that agreement. Evidence supporting a drug distribution conspiracy must indicate a sustained course of dealings and shared stakes in the illegal activity. Factors considered in determining whether an association constitutes a conspiracy include prolonged cooperation, mutual trust, standardized dealings, and the quantity of drugs involved.
Williams testified to selling PCP on behalf of Moore to Askew almost weekly for a year and a half, involving thousands of grams of drugs. Transactions were managed by Moore, sometimes featuring below-market prices or volume discounts, and payments were often made partially upfront, with balances deferred to future purchases. Evidence, including phone recordings of Askew's frequent communication with Williams, his close friendship with Moore, and Askew's signed confession regarding at least one PCP deal, suggested a more complex relationship than mere buyer-seller dynamics. A jury could reasonably conclude that an agreement to distribute PCP existed among Moore, Williams, and Askew, with Askew willingly participating.
Askew contested the absence of a jury instruction clarifying that repeated drug purchases do not alone indicate a conspiracy, arguing that this omission constituted plain error since he did not request such an instruction. To reverse a conviction for plain error, four criteria must be met: an error occurred, it was clear, it affected substantial rights, and it compromised the judicial proceedings' fairness or integrity. The presence of sufficient evidence for a conspiracy conviction does not negate the potential for plain error related to the instruction's omission. The distinction between a buyer-seller relationship and drug conspiracy is nuanced; while repeated sales may indicate both offenses, they do not suffice to prove conspiracy without additional contextual factors. Jurors should be informed that agreement, the essence of conspiracy, cannot be conflated with mere transaction frequency. The purpose of the buyer-seller instruction is to clarify that drug distribution does not equate to conspiracy, despite a history of transactions potentially serving as evidence of a conspiracy.
Askew contends that the district court erred by not providing a buyer-seller instruction, which would clarify that the jury could not convict him on the conspiracy charge based solely on evidence of repeated drug purchases. For such an instruction to be warranted, it must be supported by the evidence and the defendant must present a buyer-seller defense at trial. It is noted that Askew did not pursue a buyer-seller defense; rather, he denied any involvement with drugs, claiming his interactions with Williams were related to music. Despite strong evidence against him, including a signed confession, recorded calls indicating attempts to purchase drugs, and a significant amount of cash found at the time of his arrest, Askew maintained his innocence.
This situation is contrasted with previous cases (Mims and Thomas), where convictions were reversed due to erroneous or absent buyer-seller instructions. In those cases, defendants acknowledged their participation in drug transactions and sought such instructions, which was not the case for Askew. The court indicated that Askew's failure to adopt a buyer-seller defense supports the decision against giving the instruction. Nonetheless, the court will evaluate whether the government's evidence could lead a jury to confuse a buyer-seller relationship with conspiracy. A prior case, Gee, illustrated that a buyer-seller instruction could be necessary if the court recognized weak conspiracy evidence, highlighting the importance of ensuring the jury accurately assesses the evidence in determining the existence of a conspiracy.
The district judge found no basis for reservations regarding the evidence presented at trial, particularly Williams's testimony about her frequent PCP sales over 18 months, during which she fronted drugs to Askew at Moore's request. This arrangement suggested a conspiracy where Askew would purchase drugs through Williams to redistribute for profit, enabling him to repay debts and stabilize financially, indicating a collaborative effort rather than a mere buyer-seller dynamic. The government's strong case and Askew's failure to present evidence supporting a buyer-seller relationship led to the conclusion that the district judge did not err by not giving a buyer-seller instruction. Additionally, Askew's claims regarding the court's response to jury questions were waived, as he agreed to the initial jury response and suggested the court's final response. Waiver is defined as the intentional relinquishment of a known right, reflecting a deliberate choice. The absence of a buyer-seller instruction did not impact Askew's rights or the trial's outcome.
The jury sought clarification on whether to consider drug transactions that occurred prior to Askew's January 9 arrest when deliberating on count one of the conspiracy charge. The judge, after consulting with the attorneys, indicated that the jury could consider any evidence they deemed appropriate. The jury also inquired if the conspiracy charge was limited to events occurring between 2000 and December 16, 2000, and whether they should include evidence post-December 16 in their deliberations. The judge instructed the jury to reread the conspiracy instructions in response to this question.
Regarding evidence suppression, Askew contended that the FBI's actions during his stop and subsequent search violated the Fourth Amendment, claiming it constituted an unlawful arrest due to lack of probable cause. Alternatively, he argued that if the stop were considered a Terry stop, there was insufficient reasonable suspicion. However, Askew did not challenge the FBI's conduct or the evidence in the district court, leading to a plain error review of the case. Under Fourth Amendment standards, a full custodial arrest requires probable cause, which exists when a reasonable person would believe that a crime was being committed or was about to occur.
Law enforcement officers can conduct brief investigative stops based on reasonable suspicion rather than probable cause, as established by the Supreme Court in Terry v. Ohio. This standard allows for a non-intrusive detention if specific, articulable facts suggest a crime has occurred, is occurring, or will occur. The distinction between a lawful Terry stop and an unlawful arrest is not clear-cut and has evolved to allow tactics typically associated with arrests, such as the use of handcuffs and drawn weapons.
In the case at hand, the FBI's actions in the Homan Square Theater parking lot constituted a constitutional Terry stop, despite the agents blocking the vehicle and approaching with guns drawn. Their show of force was justified by reasonable suspicion that Askew was involved in drug-related activities. The inherent risks associated with stopping suspected drug traffickers in public necessitated this level of intrusion.
Reasonable suspicion must be evaluated based on the totality of circumstances, including the officer's experience and the suspect's behavior. Askew contended that his actions, which included driving slowly in search of a parking space, did not indicate he was about to purchase PCP. Additionally, he noted the discrepancy between the vehicle he arrived in and the one he had mentioned to his contact, Williams.
However, Agent Benvenuto testified that he had received information from Williams, a cooperating witness, indicating Askew was expected to arrive for a drug transaction. While monitoring Askew's whereabouts through ongoing communications with Williams's agents, Benvenuto identified the Hyundai Accent as suspicious. His experience suggested that a vehicle arriving at the agreed location, particularly when behaving suspiciously, was likely the intended individual involved in the drug buy.
Reasonable suspicion for the stop was established due to a collective assessment of circumstances, including a tip from a trusted informant regarding Askew's intent to commit a crime at the Homan Street Theater. While circling a parking lot may appear innocent, experienced drug enforcement agents can interpret such behavior as suspicious when viewed in context.
The execution of the stop involved blocking Askew's car and drawing weapons, prompting an examination of whether this level of intrusion was justified. Given the inherent dangers associated with drug-related arrests, where firearms may be involved, the use of force was deemed reasonable. The FBI and police believed Askew was part of a significant PCP distribution operation, and the potential for harm to bystanders and officers justified their actions.
The legality of the Terry stop was affirmed, with the court indicating that the judge made no error in allowing the evidence obtained during the stop to be presented at trial.
Additionally, the impact of the Supreme Court's decision in United States v. Booker on Askew's sentencing was addressed. Booker confirmed that any fact necessary for a sentence exceeding the maximum authorized must be admitted or proven to a jury beyond a reasonable doubt. Consequently, the mandatory provisions of the Sentencing Guidelines were excised, granting district courts discretion to impose sentences outside the established ranges, which are now reviewed for reasonableness.
Askew did not raise an Apprendi-based objection to his sentence in the district court, but was granted leave to file a supplemental brief challenging his sentence based on Blakely v. Washington and United States v. Booker. The appellate court, therefore, reviewed the case for plain error, which requires (1) an error, (2) that is plain, and (3) that affects substantial rights. If these conditions are met, the court may also consider (4) whether the error seriously affects the fairness or integrity of judicial proceedings.
The appellate court found that Askew's sentence, mandated by the Guidelines and increased based on judicially found facts rather than jury findings, was imposed under an unconstitutional scheme. However, it could not determine whether Askew would have received the same sentence under the discretionary sentencing framework established by Booker. Consequently, the court ordered a limited remand to allow the sentencing judge to assess whether the original sentence would be reimposed. If the judge decides the same sentence would be appropriate, Askew’s plain error challenge would fail, and the original sentence would be affirmed as long as it is reasonable. Conversely, if the judge finds a different sentence would be warranted, the original sentence would be vacated, and resentencing would occur.
The court concluded that Askew’s conviction is affirmed, but a limited remand is necessary for the district court to evaluate the sentencing issue as per the procedure outlined in Paladino. The case is to be returned to the appellate court following the district court's sentencing determination. Additionally, several notes highlight that Askew's testimony about bankruptcy and issues regarding conspiracy charges were addressed, noting that he did not contest the adequacy of the jury instructions regarding conspiracy. Thus, he has waived those arguments.
