Appeal from the United States District Court for the Eastern District of Wisconsin. No. 93-CR-84 Robert W. Warren, Judge.
Before CUMMINGS, FLAUM, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
DECIDED SEPTEMBER 3, 1996
Thomas Hightower was convicted by a jury on one count of conspiracy to possess with intent to distribute in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. secs. 841(a)(1), 846, and 18 U.S.C. sec. 2, one count of conspiracy to possess with intent to distribute heroin, in violation of the same statutes, and one count of use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. sec. 924(c)(1). *fn1 He presents three issues for our consideration on appeal: the sufficiency of the evidence for the drug counts, the sufficiency of the evidence for the gun count, and various errors in sentencing. We affirm the conviction and sentence on the drug counts and, in light of the Supreme Court's decision in Bailey v. United States, 116 S.Ct. 501 (1995), we vacate the conviction on the sec. 924(c)(1) count and remand for further proceedings.
Viewing the evidence in the light most favorable to the jury's verdict, as we must under Jackson v. Virginia, 443 U.S. 307 (1979), the record shows that Hightower (a.k.a. Zero) was involved in an elaborate drug distribution business with Marvin Linnear (his son, also known as B.K., who was indicted with him), Glen James, Charles Shaw, Ernest Parker, Andre Ferguson, Granville Windom, and others. In early 1990, Linnear and Parker began selling heroin and cocaine from Parker's residence on 5th Street in Milwaukee, Wisconsin. Later that year, at Linnear's direction, Shaw began working at a drug house on Palmer Street, also in Milwaukee. Approximately $3,000 worth of heroin and cocaine moved through the Palmer Street house every day. The conspirators expanded their operations to other houses later that year.
By mid-1991, Shaw had begun to cooperate with the government as a confidential informant. Shaw testified that he met "Zero," who is "B.K.'s father," in December 1991. He specifically stated that Zero was selling heroin and that Zero (Hightower) "was the leader of everybody." Additional evidence suggesting Hightower's central role in the conspiracy came from tape recordings of telephone conversations between Parker, who was by then in federal prison in Lompoc, California, and Hightower, James, and Carolyn Ward. In the recorded conversations, Parker urged the others to send him drugs, and the group discussed the status of the drug operation. Hightower and Parker complained that James spent too much money and was not sharing it with the others. Parker suggested that Walter Williams and Linnear might "shake up" James. Finally, Hightower assured Parker and the others that he was keeping track of the drug operation.
The evidence at trial showed the conspirators had extensive dealings with both heroin and cocaine. Without purporting to summarize all of it, we offer a brief chronological summary of the more notable incidents. At some point in late 1990 or early 1991, Shaw testified that he saw B.K. and another person bagging up about 2 kilos of cocaine at the 5th Street house. On February 11, 1991, members of the Milwaukee Metropolitan Drug Enforcement Group (Metro) executed a search warrant at a drug house located on 24th Street, where they recovered approximately 750 grams of cocaine packaged in 50 individual packets, along with other drug paraphernalia and a telephone bill with Windom's name on it. A few months later, on July 30, 1991, Milwaukee police officers attempted to break up drug distribution efforts going on at a house on North 45th Street. Shaw had informed them that the people at the 45th Street house were packaging and weighing about 2 kilos of cocaine, according to testimony from one of the detectives involved in the raid. The officers observed a high pile of white powdery material on the table, along with scales, grinders, cutting agents, and a gun, but by the time they were able to enter the house toilets were flushing and water was running in the sinks, and the white powdery pile was gone. Nine grams of heroin, however, were nevertheless recovered. Later, a plumber who was summoned to re-attach the toilet (which the police had dismantled during their search) found a plastic bag with "7,500 tin foil envelopes" in it clogging up the plumbing. Because of the water, lab technicians were not able to identify what had been in the packets, but various police officers testified that they believed from their direct observations of the activities prior to their attempted entry, and from the surrounding circumstances, that it had been drugs.
Between November 1991 and March 1992, Robertson testified that he was getting regular supplies of cocaine from James. He estimated that he sold 4 to 5 ounces of cocaine per day during that period of time--an amount that would equal an impressive 480 ounces, or more than 13.5 kilos, if he sold 4 ounces a day non-stop for 120 days. Even at a more modest rate of 4 ounces every other day, the total for the period exceeds 6.5 kilos. On March 18, 1992, Milwaukee police officers went to the home of Robertson's girlfriend to conduct a probation search. While they were there, James arrived with a paper bag in his hands. He fled, dropping the bag, which later turned out to contain about 700 grams of cocaine. (In a recorded conversation, Hightower criticized James' unsuccessful effort to make a personal delivery of the drugs.) Materials seized during an August 18, 1992, search of another drug house run by the group at 27th Street corroborated the general scale of operations. In addition to extensive drug paraphernalia, the police seized $113,000 in cash. Earlier testimony at the trial had indicated that 1 gram of cocaine normally sells for about $100, and an ounce goes for $900 to $1400, depending on the purity of the drug. The $113,000 therefore could have corresponded to anything from slightly more than a kilo to more than 3 kilos (due to quantity discounts).
Hightower was arrested on August 20, 1992, at the Excel Inn in Glendale, Wisconsin, where he was staying with Ferguson. At the time, Hightower was lying on a bed with his head on a pillow. Underneath the pillow was a folded sweatshirt, and inside the sweatshirt, was a loaded five-shot handgun and $6,500 in currency. The arresting officer also recovered a fully loaded .9mm handgun and a pager from underneath the mattress where Hightower had been lying, as well as address books and memo pads showing Parker's and Linnear's names. Because he lied about his name, Hightower was released from custody on this occasion. Count III of the indictment focussed only on the Beretta .9mm model 92F gun that was found under the mattress on August 20, 1992.
Our discussion of Hightower's sufficiency challenges to Counts I and II can be brief. Hightower argues that the taped conversations between Parker and himself did not amount to sufficient evidence to show that he was engaged in a drug conspiracy in the Eastern District of Wisconsin. He also claims there was no "direct" proof that he sold either cocaine or heroin as part of a conspiracy. Unfortunately, Hightower misunderstands both the nature of conspiracies and the type of proof that may be used to connect someone to the conspiracy.
As we noted above, we must consider the evidence, including all possible inferences, in the light most favorable to the government. Jackson v. Virginia, 443 U.S. at 319; United States v. Brown, 71 F.3d 1352, 1354 (7th Cir. 1995). In order to prove a conspiracy, the evidence must show both the existence of the conspiracy and that the defendant knowingly participated in it. United States v. Sasson, 62 F.3d 874, 886 (7th Cir. 1995); United States v. Saadeh, 61 F.3d 510, 525 (7th Cir. 1995); United States v. Blanding, 53 F.3d 773, 779-80 (7th Cir. 1995). The proof may come either from direct evidence or circumstantial evidence, in conspiracy cases just as in others. United States v. Hickok, 77 F.3d 992, 1005 (7th Cir. 1996); United States v. Yusufu, 63 F.3d 505, 508 (7th Cir. 1995); Sasson, 62 F.3d at 886; United States v. Donovan, 24 F.3d 908, 912 (7th Cir. 1994). In this case, there was ample evidence that a jury might have accepted showing that the charged conspiracy existed and that Hightower was a part of it. Hightower himself does not seriously challenge the sufficiency of the evidence showing the existence of the conspiracy, nor could he. With respect to his own participation, the government must present "substantial evidence" that he was a member. It did so. Hightower's taped conversations with Parker showed not only that he was involved in the conspiracy but also that he had a leadership role. Shaw confirmed Hightower's central position in his testimony, calling Hightower "the leader of ...