Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 94 CR 30064 William D. Stiehl, Judge.
Before CUDAHY, FLAUM and ROVNER, Circuit Judges.
In this criminal appeal, we review the convictions and sentences of three co-conspirators, John Lindsey, Charles Howland and Jimmie Poe. Each was convicted of conspiracy to distribute marijuana, as well as a variety of other charges including the use of a firearm during a drug trafficking crime. After consideration of each of the defendants' claims in turn, we reverse in part and affirm in part.
Lindsey was convicted of conspiracy to distribute marijuana, using a firearm during and in relation to a drug trafficking crime and possession of a firearm by a convicted felon. Lindsey raises a number of issues on appeal. He claims that there was insufficient evidence to convict, to enhance his relevant conduct for sentencing, to find that he attempted to obstruct justice and to determine that he occupied a position of leadership in the conspiracy. Lindsey also believes that he was subjected to an ex post facto application of the sentencing guidelines and that his conviction for use of a firearm during a drug trafficking crime was improperly obtained due to an incorrect jury charge. Except for the use of a firearm conviction, which we reverse, we affirm on all counts.
A. Lindsey's Sufficiency Claims
The first four of Lindsey's claims are all based primarily on his argument that the witnesses testifying against him were incredible and biased. Indeed, many of the witnesses in Lindsey's trial were co-defendants who pleaded guilty (presumably in exchange for leniency) or drug addicts, and thus subject to heightened scrutiny. See United States v. Beler, 20 F.3d 1428, 1435 (7th Cir. 1994). However, the credibility of witnesses, even when there is strong reason to doubt it, remains uniquely within the province of the fact finder and absent clear error we will not reverse on credibility grounds. See, e.g., United States v. Beverly, 913 F.2d 337, 358 (7th Cir. 1990). Thus we think that there is no basis for setting aside Lindsey's conviction for conspiracy, his sentence enhancement for being a manager or supervisor, the court's calculations of his relevant conduct or his sentence enhancement for obstruction of justice.
Lindsey argues that the government presented insufficient evidence to support his conviction for conspiracy to distribute marijuana. His argument rests on three contentions: that the credibility of the witnesses against him is scant, that his connection to the conspiracy is purely speculative and that a search of his home turned up no indicia of drug dealing. Lindsey believes that both Timothy Mullin and Monroe Morris gave unreliable testimony. But Lindsey fails to specify any reasons apparent on the record for rejecting this evidence, relying instead on his characterization of the witnesses as unreliable due to their status as drug addicts and co-defendants-turned-state's-witnesses. He does not point to any troublesome inconsistencies, identify bias or otherwise indicate why the testimony of these two witnesses should be disregarded. Lindsey's appeal is only a request to reweigh the evidence. This we cannot do.
Lindsey's argument against the sentence enhancement he received for being a manager or supervisor must fail for the same reasons. Lindsey contends that the government did not show that he exercised control or supervision over other conspirators. The district court found that the evidence showed Lindsey had employed between 10 and 20 people to break down large quantities of marijuana into smaller units for sale. The district court then concluded that Lindsey was the "manager or supervisor of, for want of a better term, a branch of the conspiracy which involved 5 or more participants and was otherwise extensive." The court's conclusion is not clearly erroneous.
Nor do we find the court's calculations of Lindsey's relevant conduct to be clearly erroneous. A convicted conspirator "is responsible for the amount of [drugs] he actually distributed and the amount involved in transactions reasonably foreseeable to him." United States v. Goines, 988 F.2d 750, 775 (7th Cir. 1993). Lindsey argues that the district court erroneously attributed amounts of marijuana to him without specifically linking him to the drug. This argument misses the point: the district court found that "Lindsey was an integral part of the [Poe] conspiracy" so that "he was at a much higher level and enjoyed a closer relationship with Mr. Poe than most of the others, if not all of the other co-conspirators." Thus, reasonable estimates of marijuana foreseeably distributed by other members of the conspiracy are attributable as relevant conduct to Lindsey.
Lindsey also challenges the sentence enhancement for obstruction of justice on the grounds that the witnesses who testified against him were unreliable and incredible. Under U.S.S.G. sec. 3C1.1 a defendant who "willfully obstructed or impeded . . . the administration of justice during the investigation, prosecution, or sentencing of the instant offense" receives a two offense level increase. The government presented a good deal of evidence of Lindsey's efforts to obstruct the proceedings against him. This evidence included Lindsey's distribution of a "wanted" poster containing a picture of Monroe Morris and describing him as a "snitch" and Lindsey's offer of money to anyone who would beat up Morris. Lindsey also tried to convince Timothy Mullin not to testify.
Lindsey attempts to discredit this evidence by attacking the reliability of Morris as a witness, by noting that the "wanted" poster was never admitted into evidence and by arguing that the government did not prove that any of these obstructionist activities took place during the "investigation, prosecution, or sentencing of the instant offense." U.S.S.G. sec. 3C1.1. But the testimony concerned behavior during and after the investigation, but before the prosecution. This is precisely the timing contemplated by sec. 3C1.1. Further, it is not our, but the district court's, prerogative to determine whether to credit a witness. Here the district court found the cumulative weight of the evidence persuasive.
The question of the "wanted" poster is vexing, however, since no such item was admitted into evidence. Only Morris testified to its existence, *fn1 and he is hardly a disinterested party. But, even if the poster did not exist, the enhancement is supported by other evidence. There were two witnesses other than Morris who testified to Lindsey's efforts to obstruct justice. Even without the poster, there was sufficient proof to support the obstruction of justice enhancement.
Lindsey also argues that he was subjected to an ex post facto application of the sentencing guidelines because of the delay between his conviction and his sentence. Lindsey was convicted on August 25, 1995; and his presentencing report was first filed on October 16, 1995. Our opinion in United States v. Hernandez, 79 F.3d 584 (7th Cir. 1996), cert. denied, 1996 WL 164153 (1997) & 1996 WL 375444 (1997), was issued on March 18, 1996, before Lindsey was sentenced. This case held that note 2 of the commentary to U.S.S.G. sec. 4B1.1 (Career Offender) conflicted with 28 U.S.C. sec. 994(h) and thus had no application. This so-called Hernandez rule was applied to Lindsey and a revised presentence report was issued. If Lindsey had been sentenced before Hernandez, note 2 of the commentary would have been applied to him and his maximum sentence would have been calculated without a career offender enhancement and thus would have been significantly shorter.
With respect to an adult defendant convicted of a violent crime or felony drug offense and who has at least two prior such convictions, 28 U.S.C. sec. 994(h) directs that the Guidelines specify a sentence of imprisonment "at or near the maximum term authorized," presumably including sentence enhancements for prior convictions. Note 2, on the other hand, defines "offense statutory maximum" as "the maximum term of imprisonment authorized for the offense . . . not including any increase . . . that applies because of the defendant's prior criminal record." U.S.S.G. sec. 4B1.1, commentary n.2 (emphasis supplied). In Hernandez, we resolved the apparent conflict between the statute and the commentary by enforcing the statutory language. Thus, "maximum term authorized" means the maximum term calculated after considering the statutory sentencing enhancements for prior convictions. Hernandez, 79 F.3d at 585. Despite the fact that Lindsey's maximum sentence would have been lower before Hernandez than after, the application of Hernandez to Lindsey's sentence is not ex post facto because Hernandez did not create a new rule of law. *fn2 To violate the ex post facto clause, a penal law "must be retrospective . . . . [I]t must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29 (1981). Unlike the usual ex post facto situation, Hernandez did not consider the retroactive application of a new penal law. Rather, Hernandez clarified the existing rule of law by determining that the Sentencing Commission had written an invalid commentary. Thus there is no ex post facto concern in this case.
The government concedes that an improper jury instruction was given with respect to the firearm count. See Bailey v. United States, 116 S. Ct. 501 (1995) (defining "use" in 18 U.S.C. sec. 924(c) narrowly). The government further concedes that the conviction on this count must be reversed and remanded for a new trial. See United States v. Robinson, 96 F.3d 246 ...