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United States v. Requarth

decided: May 23, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DENA ANNE REQUARTH, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Danville Division, No. 87 CR 20001--Harold A. Baker, Chief Judge.

Cudahy, Posner, and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

Dena Anne Requarth was convicted of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; possession of cocaine in violation of 21 U.S.C. § 844; and interstate travel to aid a criminal enterprise in violation of 21 U.S.C. §§ 1952(a)(1) & 846 and 18 U.S.C. §§ 1952(a)(3) & 2. Requarth appeals from her conviction on the conspiracy charge on the ground that the jury instructions were improper.

I.

Approximately once every two weeks from August 1986 until December 1986 Requarth's boyfriend, Randy Jordan, sold one to two ounces of cocaine to Thomas Conner. On December 12, 1986, Conner gave Requarth $4,000 in payment for cocaine that he had previously purchased from Jordan. Three days later, Conner became an informant to the Illinois State Police, and told them about a trip Jordan was planning to Florida to purchase cocaine. On December 17, Conner, who was wearing a concealed taping device, met with Jordan and Requarth at Jordan's sister's home in Decatur, Illinois. During this meeting, Jordan told Conner that he was going to Fort Lauderdale, Florida to purchase a kilogram of cocaine.*fn1 The meeting lasted approximately twenty minutes.

On December 19, Jordan and Requarth drove from Decatur to the Indianapolis, Indiana airport in Requarth's car. When they arrived at the airport Jordan purchased a single ticket to Florida. At that point, Requarth did not plan to accompany him to Florida, which she argues demonstrates her lack of intent to join the conspiracy. Later, however, Jordan purchased a second ticket for Requarth. They then flew to Orlando, Florida and on to Miami.

At the Miami International Airport Jordan and Requarth were met by a man named Dwight from whom Jordan had purchased cocaine on three or four prior occasions. On December 20, Dwight took Jordan and Requarth to his apartment where Jordan purchased 300 grams of cocaine. Requarth saw the cocaine before it was placed in the trunk of Dwight's car for overnight storage. The next day Dwight gave the cocaine to Jordan who packaged it in two separate plastic bags; he taped one of the bags to his stomach and Requarth taped the other bag between her legs. Once the cocaine was secured, Dwight drove Jordan and Requarth to the airport where they boarded a plane for Indianapolis. While in flight, Requarth removed the bag of cocaine from beneath her clothing and gave it to Jordan. Jordan also removed the bag that was taped to his stomach and placed both bags of cocaine into a case he had carried on the airplane.

When they arrived in Indianapolis, Jordan and Requarth returned to her car. Requarth, who was carrying the case, removed the cocaine and put it in the glove compartment. They then drove to Urbana, Illinois. When they reached Urbana, the Illinois police, who had been monitoring Jordan and Requarth, signaled to Jordan to stop the car. Requarth took the cocaine out of the glove compartment and tried to throw it out of the car, but Jordan stopped her. Having failed to dispose of the cocaine, Requarth decided to hide it in a tissue box which she placed on the floor of the car. The police eventually arrested Jordan and Requarth; when they searched the car they discovered the hidden cocaine.

On January 8, 1987 a grand jury returned a four-count indictment against both Jordan and Requarth; a superseding indictment was returned on February 12, 1987. The four counts of the superseding indictment were: Count I conspiracy to possess with intent to distribute and to distribute cocaine; Count II possession of cocaine with intent to distribute, and alternatively possession of cocaine (a lesser-included offense of Count II); Count III interstate travel on December 19, 1986 to aid a criminal enterprise; and Count IV interstate travel on December 21, 1986 to aid a criminal enterprise.

Jordan pleaded guilty to Counts II and III of the indictment. On Count II he was sentenced to one year incarceration, followed by a parole term of three years, and on Count IV he was sentenced to five years' probation. As part of the plea agreement, Counts I and III were dismissed against Jordan. Requarth proceeded to trial. On March 19, 1987 a jury found her guilty of Counts I, IV, and alternate Count II, but not guilty of Counts II and III. Requarth was sentenced on alternate Count II to six months' incarceration and a $1,000 fine; on Counts I and IV she received a suspended sentence and was placed on probation for five years.

Requarth challenges her conviction on the ground that the jury was improperly instructed on the conspiracy charge. She argues that the district court erred when it refused to give her tendered "presence" instruction.*fn2 Requarth contends that because this instruction was not given, the jury may have convicted her on the conspiracy count simply because she was present when illegal activities occurred. Requarth, however, failed to preserve this objection for appeal. We conclude that the district court's refusal to give Requarth's proposed presence instruction did not constitute plain error, we therefore affirm.

II.

The first issue we must address is whether Requarth preserved her objection to the jury instructions for appeal. "No party may assign as error any portion of the charge or omission therefrom unless he[/she] objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which his[/her] objects and the grounds of his[/her] objection." Fed. R. Crim. P. 30. To preserve an objection to the district court's failure to give a proposed jury instruction, a party must do more than simply submit the proposed instruction for the court's consideration. United States v. Markowski, 772 F.2d 358, 363 (7th Cir. 1985), cert. denied, 475 U.S. 1018, 89 L. Ed. 2d 316, 106 S. Ct. 1202 (1986); United States v. Jackson, 569 F.2d 1003, 1009 (7th Cir.), cert. denied, 437 U.S. 907, 98 S. Ct. 3096, 57 L. Ed. 2d 1137 (1978). Rather, the defendant must "object, on the record, to the judge's refusal to ...


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