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United States v. Banks

March 11, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

DONTAY BANKS, MARIO DUNLAP, MICHAEL WILLS, ALTON MILLS, ROBERT GAINES, MONICA BOGUILLE, AND ROBERT SHIPP,

DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 350--Marvin E. Aspen, Chief Judge.

Before CUMMINGS, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED OCTOBER 30, 1995

DECIDED MARCH 11, 1996

The defendants in this matter were convicted, following a two-week jury trial, of various drug trafficking offenses. They received sentences ranging from 121 months to life imprisonment. In this consolidated appeal, the defendants challenge those convictions and sentences. For the reasons set forth in the following opinion, we affirm the judgments of the district court.

I. BACKGROUND

The defendants were convicted of their participation in a cocaine conspiracy which operated in Chicago from the fall of 1991 through May 1993. *fn1 The primary organizer of this conspiracy was Dontay Banks, who purchased powder cocaine from two suppliers *fn2 starting in September or November 1991. Most of the transactions were made directly between the suppliers and Mr. Banks, and at least three of the deliveries were made directly to Mr. Banks' home. The testimony of the suppliers indicated that these transactions often involved multi-kilogram quantities of cocaine powder and significant amounts of cash. Beginning in March 1993, Mr. Banks began to rely upon Alton Mills to handle the exchange of cocaine and cash with the suppliers. On one occasion in the spring of 1993, a sale of three kilograms of cocaine was made through Tosha Woods, a cousin of Mr. Banks, who testified on behalf of the government at trial pursuant to a grant of immunity.

After obtaining the powder cocaine from his suppliers, Mr. Banks and other members of the conspiracy used it to manufacture crack cocaine, then packaged the crack cocaine in smaller quantities for sale on the street. Tosha Woods and her father, James Woods (who testified for the government pursuant to a plea agreement), observed Mr. Banks "cooking" crack cocaine on the stove in his kitchen during 1992. They also testified that they observed Mr. Banks break the crack into smaller "rocks" for packaging, then weigh and bag it. The small plastic bags, which each sold for $10 on the street, were grouped into "packs" of thirty to thirty-five bags.

The sale of the individual bags of crack cocaine was carried out by street-level dealers. The sales were made around the clock, and the workers were organized into two shifts. One dealer who testified at trial for the government stated that she recalled once selling up to five or six "packs" in a day. Other evidence indicated that on a good day, the entire operation could generate up to $15,000 in sales. Mr. Mills, Robert Shipp, Mario Dunlap, and Michael Wills were each involved in overseeing aspects of the street sales and in handling the cash proceeds. Robert Gaines worked as a dealer, primarily during the day shift. Ms. Boguille was involved in handling the cash produced from the sales--counting money, depositing it at the bank, and on one occasion picking up cash at another location at the request of Mr. Banks.

The jury returned a general verdict finding all the defendants guilty of the conspiracy count and each defendant guilty of various other substantive counts. *fn3 The defendants' post-trial motions seeking new trials were denied. The district court conducted a sentencing hearing on July 14, 1994. Mr. Banks, Mr. Shipp, Mr. Dunlap, and Mr. Mills were each sentenced to life imprisonment. Mr. Wills and Mr. Gaines were each sentenced to thirty years' imprisonment, and Ms. Boguille was sentenced to 121 months.

II. DISCUSSION

We shall address first the challenges presented by the defendants with respect to their convictions. Then we shall turn to the sentencing matters and examine them individually.

A. The Guilt Phase of the Proceedings

1. Sufficiency of the Evidence Claims

We turn first to the sufficiency of evidence claims presented by various defendants. See United States v. Douglas, 874 F.2d 1145, 1150 (7th Cir. 1989). A defendant who attacks the legal sufficiency of the evidence supporting a conviction shoulders a heavy burden. We review such claims with deference to the decision of the jury. We shall uphold the jury's conviction on this count if, after viewing the evidence in the light most favorable to the government, we determine that any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime. United States v. Penny, 60 F.3d 1257, 1262 (7th Cir. 1995), cert. denied, 64 U.S.L.W. 3558 (U.S. Feb. 20, 1996). A jury verdict may be overturned "only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Rosalez-Cortez, 19 F.3d 1210, 1215 (7th Cir. 1994) (quoting United States v. Teague, 956 F.2d 1427, 1433 (7th Cir. 1992)).

a. Mr. Mills' conviction on Count XXV

Mr. Mills was convicted on Count XXV of the indictment which alleged that, on May 11, 1993, he possessed crack cocaine with the intent to distribute. 21 U.S.C. sec. 841(a)(1). The only evidence supporting his conviction, he argues, is the uncorroborated confession he gave following his arrest. According to testimony presented at trial, Mr. Mills confessed that on May 11, 1993, while trying to elude police, he threw from his car a gym bag containing a half kilogram of crack cocaine.

Mr. Mills submits that this uncorroborated evidence is insufficient to support his conviction on Count XXV. As he notes, the officers who chased him never saw anything thrown from the car, and the bag was never recovered. Furthermore, at the suppression hearing, Mr. Mills denied making the incriminating statement.

Although Mr. Mills correctly points out that a conviction may not rest on the uncorroborated confession of the accused, Wong Sun v. United States, 371 U.S. 471, 488-89 (1963), the confession given by Mr. Mills was supported by adequate, corroborating evidence from which a rational jury could conclude that he was guilty of the crime charged in Count XXV. The prosecution introduced into evidence a phone conversation among Mr. Banks (who was incarcerated), Mr. Shipp and Ms. Boguille that had been recorded on May 11, 1993, the date of the crime alleged in Count XXV. *fn4 In that recording, Mr. Mills' co-defendants can be heard discussing the circumstances surrounding his arrest and the whereabouts of "the candy"--a phrase that served as a code word for the crack cocaine sold by the conspiracy. Furthermore, the officer who arrested Mr. Mills on May 11 testified concerning Mr. Mills' reckless driving during the car chase; the government argued in its closing argument that Mr. Mills' driving, following only a minor traffic violation, indicated that he was attempting to elude the police and get rid of the drugs in his possession. With this corroboration, we cannot hold that the jury's verdict was unsupported by the evidence. Mr. Mills' conviction on Count XXV is upheld.

b. Ms. Boguille's conspiracy conviction

Ms. Boguille challenges her conviction, under Count I of the indictment, for conspiracy. She claims that the evidence was insufficient to show that she knowingly agreed to participate in the conspiracy. Ms. Boguille argues that the government's primary witness with respect to her involvement in the conspiracy was impeached and thus her testimony could not serve as the basis for the conviction on Count I.

We review Ms. Boguille's claim challenging the sufficiency of the evidence under the same deferential standard discussed above, and hold that the government presented sufficient evidence from which a rational jury could have found Ms. Boguille guilty of the conspiracy charge. Even if we accept Ms. Boguille's claim that the primary witneCsMagainst her was impeached, the record does not show an absence of evidence on which to rest the jury's verdict. For example, Tosha Woods testified that, on one occasion, she and Ms. Boguille counted out cash in the bedroom of the home shared by Ms. Boguille and Mr. Banks. At Ms. Boguille's direction, Woods took money out of a plastic shopping bag and counted it into $100 stacks, which were then bound with rubber bands. Recorded telephone conversations also revealed Ms. Boguille's involvement in the conspiracy's operation. She was recorded while she checked on cooling crack cocaine for Mr. Banks and while she counted out thousand dollar stacks of money for him; she reported to Mr. Banks the circumstances surrounding Mr. Mills' arrest and that he had "candy" with him during the chase; and on one occasion she picked up $20,000 for Mr. Banks. We hold that this evidence is sufficient to sustain the jury's verdict on this count.

2. Admission of Alton Mills' Confession

At trial, the government introduced as substantive evidence against Mr. Mills a statement that he made following his arrest. The statement, in a redacted form, was admitted at trial through the testimony of Officer Robert Grapenthien, who arrested Mr. Mills and conducted the post-arrest interview. *fn5 The testimony was accompanied by a limiting instruction admonishing the jury that the officer's statements were admissible as evidence against Mr. Mills alone. Mr. Mills challenges the admission of this testimony and claims that it should have been suppressed ...


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