Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 CR 1084--Charles P. Kocoras, Judge.
Before CUDAHY, EASTERBROOK, and ROVNER, Circuit Judges.
This case is about a drug deal gone sour, leading to a shooting and then to an extortion attempt. Deborah Johnson-Dix, Carlos Meyers, Darrell Walton, and Garrett Thompson were charged with possession and with conspiracy to possess with the intent to distribute approximately one-half kilogram of cocaine. Johnson-Dix, Walton, Thompson, and Carl A. Dawson, Jr., were charged with various extortion offenses, and Johnson-Dix, Thompson, and Dawson faced additional charges related to their use of firearms in the course of the attempted extortion. Johnson-Dix pled guilty to the conspiracy and gun charges, while the remaining defendants proceeded to trial, where they were convicted by a jury on all counts. In this appeal, Dawson and Walton challenge their convictions and sentences, while the remaining defendants raise issues related only to their sentences under the Sentencing Guidelines. For the reasons that follow, we affirm on all issues.
The events giving rise to these convictions began simply enough in early December of 1992. Meyers and Mark Nunnally sold one-half ounce of cocaine to a woman named "Slick" in Gary, Indiana. They then returned to Gary to visit Slick and her daughters the following two days, and on the latter visit, Slick introduced Meyers and Nunnally to Walton, who is her son. Meyers, Nunnally, and Walton discussed a half-kilogram cocaine deal to be financed by Thompson, who Walton said was his partner. Before negotiating the deal with Thompson, however, Meyers checked with his cocaine source in Chicago, a man known as "Mellow D," *fn1 and obtained a quote of $11,000 per half kilogram. Meyers and Nunnally then agreed to sell a half kilogram to Walton and Thompson for $12,500. The following day, Meyers and Nunnally returned to the house in Gary, and Thompson gave Meyers $12,500 in cash. Johnson-Dix was apparently the source for a portion of this money.
Meyers then went to Chicago to meet with Mellow D, leaving Nunnally behind in Gary as "insurance" because Walton and Thompson had no prior experience with these sellers. Mellow D, however, was unable to come up with a half kilogram of cocaine at the quoted price on such short notice, and Meyers could not locate an alternative source. As a result, Meyers never gave the $12,500 to Mellow D, but instead, Meyers apparently lost the money while searching for a source. When he realized the money was missing, Meyers told Nunnally over the telephone that he had given the money to Mellow D but that Mellow D had disappeared without producing any cocaine.
On December 15, Thompson, Walton, and Nunnally met Meyers in Chicago at a day care center owned by Meyers' mother and grandmother. Meyers repeated his story about giving the money to Mellow D and explained that Mellow D now was not returning his telephone calls. The group drove to Mellow D's house in Meyers' rented automobile, but no one answered the door. Walton suggested that they "take the bitch," meaning Mellow D's girlfriend (who apparently was in the house), but Nunnally convinced Walton that their complaint was with Mellow D and that his girlfriend was not involved. The group then set out for Walton's residence in Gary, but on the way, they met Johnson-Dix and Dawson outside a restaurant. From there, they proceeded to Gary. Johnson-Dix rode with Thompson and Nunnally, Meyers rode with Walton, and Dawson drove Johnson-Dix's Cadillac, which had a license plate reading "D MONEY."
Meyers and Nunnally spent the night in Gary, and in order to buy time, they decided to tell Walton and Thompson that they intended to mortgage property they owned in Mississippi to repay the $12,500. Nunnally told Thompson about the property the following day and indicated that it was necessary to travel to Mississippi to obtain a mortgage. Thompson said that Walton would have to go with them, and he later ordered Johnson-Dix to go along as well. Thompson set the following Tuesday as the deadline for repayment of the money and made it clear to Meyers and Nunnally that if the deadline was not met, he, Walton, and Johnson-Dix would "have to do what they have to do."
On the evening of December 17, 1992, Walton, Johnson-Dix, Nunnally, Meyers, Dawson, and Larry Powell *fn2 gathered at Walton's residence in Gary. As the group was standing beside the white Buick Meyers had rented for the trip, Walton became angry about something, pulled a .45 caliber semi-automatic weapon from his belt, pointed it at the Buick's tires, and threatened to shoot. Johnson-Dix eventually calmed Walton, and sometime after midnight, the group (minus Dawson) set out for Mississippi. *fn3 They arrived in Jackson, Mississippi at about noon on December 18, and Meyers rented two motel rooms under a fictitious name. Meyers, Nunnally, and Powell stayed in one room, and Johnson-Dix and Walton shared the other. Johnson-Dix kept a Tec-9 semi-automatic weapon on her bed, and Walton still had his .45 caliber semi-automatic weapon.
The group stayed in Jackson for two days, during which Meyers attempted to obtain money while the others visited Walton's relatives in Greenwood, Mississippi. Telephone records indicated that Thompson made numerous calls to the motel on December 19 and 20, and Dawson also called the motel on December 19. Thompson eventually became convinced that Meyers and Nunnally were conning him, and he and Walton thus told Johnson-Dix to kill Nunnally in order to frighten Meyers. The original orders were that Nunnally should be murdered in Mississippi, but Thompson and Walton abandoned that plan when they realized that the numerous telephone calls between Gary and Jackson would implicate them. Their substitute plan was to have Johnson-Dix kill Nunnally during the return trip to Chicago.
On Sunday December 20, the group checked out of the motel and headed to Greenwood, where they again stopped at the home of Walton's grandmother. Walton called Thompson one last time, and Thompson emphasized to Meyers that he needed his money back by Tuesday "or else."
Powell drove most of the way back to Chicago; Meyers was in the passenger seat, while Johnson-Dix, Nunnally, and Walton were in back. When Walton was sleeping, Johnson-Dix disclosed to Nunnally that she had been ordered to kill him, but she told Nunnally she would not do it because Nunnally had once been a fellow El Rukn gang member. Johnson-Dix explained her plan and indicated that when she told Nunnally to get out of the car, he should not hesitate, or Walton might shoot him.
At approximately 4:00 a.m. on December 21, Powell was dropped off at his home in Riverdale, Illinois, and Walton began driving the Buick. He drove to a dark road near an industrial area in Dalton, Illinois, where Johnson-Dix said she needed to get something out of the trunk. When Walton stopped the car, Johnson-Dix pointed to the door, indicating that Nunnally should get out. By the time Nunnally had walked to the rear of the car, Johnson-Dix had the trunk open and had pulled out the Tec 9. She told Nunnally to run, but before he got very far, Johnson-Dix shot him in the left calf, fracturing his fibula. Nunnally fell to the ground as Johnson-Dix fired a number of additional shots. She then pulled a second gun from the trunk, cocked it, and began walking toward Nunnally. She then turned abruptly, jumped into the Buick, and drove off with Walton and Meyers. When the Buick was out of sight, Nunnally pulled himself up and began running to a nearby factory. There, he saw the Buick pass slowly by the spot where he had been shot. A factory security guard eventually called an ambulance for Nunnally, and he was transported to a nearby hospital, where he spent just over two days receiving treatment on his leg.
At approximately 7:30 a.m. on December 21, Patricia Meyers received a collect telephone call from her son Carlos. He asked for a $12,500 loan to repay money that his friend Mellow D had taken from some other people. Carlos would not identify the people who were owed the money, but told his mother that he was their only connection to Mellow D. As a result, the others were holding him until the debt was paid. Patricia asked to speak with one of them, and Thompson came on the line. Thompson told Patricia that he had no intention of harming Carlos but that he needed to get his money back. He said he would call Patricia back at 3:00 that afternoon.
Patricia then called a number of friends and family members, one of whom involved the FBI and the Drug Enforcement Administration ("DEA"). FBI agents arrived at Patricia's apartment shortly thereafter and prepared to record any subsequent calls. Powell also called to tell Patricia that Nunnally had been shot by the people Carlos had been with over the weekend. Patricia called the hospital, and Nunnally begged her to loan Carlos the money so that he would not be shot as well. A series of telephone calls ensued between Carlos, his mother, and at times Thompson.
Finally, at 11:00 p.m., FBI agents observed Johnson-Dix, Meyers, Dawson, Walton, and Thompson standing near a Cadillac and a white Buick at an Amoco gas station not far from Patricia's apartment. At 11:55, Carlos called his mother from the station's pay phone, and Patricia told him that she had the money. Relaying instructions from Thompson, Carlos told his mother to put the money in the garbage can near pump number eight at the Amoco station. Once the money was in the garbage can, Carlos said he would be released. The group at the Amoco station then dispersed.
Federal agents converged on the station shortly afterward. They found the rented white Buick across the street, and they arrested Walton, who was seated inside. The agents seized a blackjack *fn4 from the passenger seat and a Chicago Police Department hat from the rear window. In the trunk they found a loaded Intertec .22 caliber semi-automatic weapon, a duffle bag filled with police gear, and a knife.
As Walton was being arrested, another agent spotted the Cadillac with the "D MONEY" license plate driving slowly past Patricia Meyers' apartment. The agent pulled his unmarked car to the side of the road to allow the Cadillac to pass. As it did, the agent observed that Johnson-Dix was driving the vehicle and that Dawson was in the passenger seat. Dawson stared intently at the agent as the Cadillac crept by. Johnson-Dix then pulled the Cadillac to the side of the road in front of the agent's car, and Dawson turned in his seat to keep the agent in his view. Because the agent's car now was hemmed in by the Cadillac and the cars parked behind, the agent felt like a "sitting duck" and thus grabbed his shotgun and left the car, announcing that he was with the FBI. The agent saw Dawson point a metallic object in his direction, and he therefore fired at the Cadillac's trunk. As the Cadillac sped away, the agent fired a second shot, shattering the rear window. A five-to-six mile chase ensued before agents were able to stop the Cadillac. After arresting Johnson-Dix and Dawson, the agents found four operable firearms in the vehicle. First, a Taurus 9 mm weapon belonging to Dawson was cocked and loaded on the front passenger-side floor, below where Dawson had been seated when the agent fired on the Cadillac. Next to the Taurus, the agents found a Colt .45 semi-automatic weapon, which also was loaded. Between the cushions of the front seat was a loaded Smith & Wesson .357 Magnum, and on the floor behind the driver's seat was a loaded Intertec 9 mm semi-automatic weapon.
The agents arrested Dawson and then advised him of his Miranda rights. Dawson waived his rights and agreed to answer the agents' questions. Dawson told the agents that the Cadillac belonged to a woman named "D" (Johnson-Dix), that he had borrowed the vehicle from her, and that he had picked her up earlier that evening before proceeding to a bar in Gary, where they had met three other people. Dawson had watched a football game at the bar and had paid little attention to the others. Johnson-Dix then had asked Dawson whether he would ride to Chicago with her "just for the fun of it." At that point, the agents accused Dawson of lying, and Dawson altered his story, telling the agents that one of the others had offered him $100 to ride to Chicago with Johnson-Dix. Dawson had been told it would be his job to catch a bag of money that would be tossed into the car. Dawson purported to know nothing else about the trip to Chicago, although he admitted that he had been recruited to go because of his size and intimidating appearance--Dawson is 6 feet 5 inches tall and weighs 270 pounds. Dawson told the agents that he and Johnson-Dix had stopped at an Amoco station, that they subsequently had noticed a car following them, and that they had pulled to the side of the road, where the man in the other car had proceeded to shoot at them. Dawson had no idea why the man had either followed or shot at them. Dawson also admitted to the agents that the Taurus 9 mm weapon found on the front floor of the Cadillac belonged to him, but he purported to use the gun only for protection while walking his dog in Gary.
As Walton, Johnson-Dix, and Dawson were being arrested, Thompson and Meyers fled the scene. Meyers eventually surrendered, and Thompson was apprehended a week later.
Dawson raises a number of challenges to his convictions, three of which we discuss below. First, he argues that the evidence is insufficient to support the jury's verdict on the extortion and firearm charges. Alternatively, he asks for a new trial, claiming unfair prejudice from the testimony of an FBI agent to the effect that Dawson had not been truthful in making a statement immediately after his arrest. Finally, Dawson insists that the prosecutor's comments in rebuttal closing argument deprived him of a fair trial.
Dawson necessarily bears a heavy burden in asserting that the evidence was insufficient to support his convictions. In considering such a claim, "we review the record in the light most favorable to the government, and determine whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Theodosopoulos, 48 F.3d 1438, 1449 (7th Cir. 1995) (quoting Jackson v. Virginia, 443 U.S. 307, 316 (1979) (emphasis in Jackson)). We will reverse Dawson's convictions only if the record is devoid of evidence from which the jury could reach a finding of guilt. Theodosopoulos, 48 F.3d at 1449; United States v. Rosalez-Cortez, 19 F.3d 1210, 1215 (7th Cir. 1994).
The crux of the challenge to the extortion convictions is that there is no proof that Dawson knew of the extortion conspiracy and that he intended to join it. Because agreements to engage in criminal activity are at the heart of conspiracy law (United States v. Lechuga, 994 F.2d 346, 348 (7th Cir.) (en banc), cert. denied, 114 S. Ct. 482 (1993)), a defendant's agreement to join the illegal objectives of a conspiracy must be supported by substantial evidence. United States v. James, 40 F.3d 850, 865 (7th Cir. 1994), cert. denied, 115 S. Ct. 948, 1160 (1995); United States v. Carson, 9 F.3d 576, 587 (7th Cir. 1993), cert. denied, 115 S. Ct. 135 (1994). Although it generally is insufficient to show that an individual was merely present when the details of a conspiracy were discussed, or when acts in furtherance of the conspiracy were committed, a defendant's "presence, along with other evidence indicating that the presence or act was intended to advance the ends of the conspiracy," is sufficient to establish the participatory link. Theodosopoulos, 48 F.3d at 1450; see also Carson, 9 F.3d at 587. And as we have said on numerous occasions, a defendant's participation in a conspiracy may be established solely by circumstantial evidence. See, e.g., Theodosopoulos, 48 F.3d at 1450; United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir. 1991).
When Dawson's argument is considered in light of these standards, it is clear that the government produced substantial evidence showing that Dawson knew of the extortion conspiracy and agreed to join its illegal objectives. Although Dawson did not accompany the group to Mississippi and was thus not present either when Johnson-Dix shot Nunnally or when Meyers first called his mother, Dawson was present at and played a key role in some of the central acts in furtherance of the extortion conspiracy. For example, he agreed to accompany Johnson-Dix to Chicago in return for $100, knowing that he would be responsible for catching a bag of money that would be tossed into the Cadillac. Dawson also knew that he had been recruited to accompany Johnson-Dix because of his size and intimidating presence. Moreover, Dawson was present at the Amoco station when Meyers called his mother and learned that she had obtained the $12,500. He also was in the Cadillac with Johnson-Dix when Agent Becknell spotted the vehicle in the vicinity of Patricia Meyers' apartment. It was Dawson who stared intently at the agent as the Cadillac passed the agent's unmarked car, and it was Dawson who appeared to point a metallic object in the agent's direction, prompting the agent to fire. When agents finally were able to stop the Cadillac, they found Johnson-Dix, Dawson, and four loaded firearms inside. Dawson subsequently admitted that one of the weapons, which had been cocked and loaded, belonged to him.
Dawson contends in the face of this evidence that he had no knowledge of the extortion scheme and that Johnson-Dix simply put him in the wrong place at the wrong time. The jury, however, was free to reject that explanation and to conclude from the evidence that Dawson knew of the conspiracy and had agreed to further its objectives. Dawson's challenge to the sufficiency of the evidence essentially would require us to reject the jury's credibility assessments and to reweigh the evidence in his favor. This we cannot do. See Carson, 9 F.3d at 587. Dawson's conspiracy and related extortion convictions are thus supported by substantial evidence.
Dawson's challenge to his firearm conviction fares no better. The jury found Dawson guilty of using or carrying a firearm during and in relation to a crime of violence under 18 U.S.C. sec. 924(c)(1). Dawson does not contest that the extortion offenses were "crimes of violence" for purposes of section 924(c)(3). He contends instead that the Taurus handgun recovered from the Cadillac had no connection to the extortion scheme. Indeed, Dawson testified at trial that he only carried the weapon to protect himself when walking his dog through the streets of Gary. It was completely fortuitous, according to Dawson, that he had the loaded gun with him on the night in question. Dawson contends, therefore, that he did not use or carry the firearm "during and in relation to" the extortion offenses.
In Smith v. United States, 113 S. Ct. 2050, 2059 (1993), the Supreme Court explained that the phrase "in relation to" means, at a minimum, "that the firearm must have some purpose or effect with respect to the [crime of violence]; its presence or involvement cannot be the result of accident or coincidence." In the context of a conspiracy to commit extortion, the "during and in relation to" requirement is satisfied if the firearm is in the possession or control of the defendant "and its possession aids in the accomplishment of the conspiracy's objective." James, 40 F.3d at 861. Here, the evidence is certainly sufficient to prove that Dawson's possession of the Taurus handgun aided the attempted extortion. Agents found the cocked and loaded Taurus on the floor below where Dawson had been seated when the Cadillac passed the agent's unmarked car near Patricia Meyers' apartment. Moreover, the agent opened fire on the Cadillac only after he saw Dawson point a metallic object ...