Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 95 CR 48 David H. Coar, Judge.
Before Flaum, Ripple, and Rovner, Circuit Judges.
Argued September 11, 1997
Lawrence McCarroll and his associates based their drug enterprise in Chicago's Ida Wells housing complex. Over the thirteen-month period in which the Government monitored their activities, the conspirators bought, diluted, packaged, and sold vast quantities of heroin. A jury convicted all defendants after a lengthy trial, and the district court sentenced them to prison terms ranging from 235 to 328 months and entered a joint-and-several liability forfeiture order in excess of $3.3 million against all appellants except Jamie Key. This consolidated appeal challenges various aspects of each appellant's conviction and sentence. We affirm the jury's verdicts and the district court's sentences.
Lawrence McCarroll became known as the "King of Ida Wells" for the grand lifestyle he enjoyed amidst the poverty of that south-side housing project. Although he was only twenty years-old, he acted as the conspiracy's "CEO" and supervised purchases of high-purity heroin by his mother (Judy McCarroll) and Samir Hameen. Some of Lawrence's fellow conspirators--Derrick Jarrett, Dwight Anderson, Jamie Key, and Jeffrey Brock--would then dilute the heroin at a laboratory on the far south side of Chicago, package it into half-gram bags or multiple-gram packages, and then make the sales to customers at Ida Wells. Judy McCarroll served as the conspiracy's bookkeeper and, along with her son and two co-defendants who did not join this appeal, laundered the huge profits yielded from the conspiracy's sales. The conspiracy's success manifested itself in the expensive cars, fur coats, and jewelry possessed by the appellants.
These ostentatious displays of wealth tipped off law enforcement authorities to the conspiracy's activities. In December 1993, the Government began gathering evidence of the conspiracy's operations from surveillance agents, undercover purchasers, and items seized from the conspirators during arrests. The most prolific source of evidence, though, came from a wiretap which ran at different times from November 1994 until January 1995 and which recorded over 2500 calls among the co-conspirators. In addition, the prison authorities at the Metropolitan Correctional Center recorded the appellants' post-arrest calls to outsiders in which the parties discussed, among other things, selling the conspiracy's assets in order to raise money for legal representation.
In the following sections, we summarize the extensive evidence of the conspiracy's illegal activities, describe the items seized during Appellants' arrests, and then discuss their convictions and sentences.
A. Evidence of Illegal Activity
Law enforcement officials began to gather circumstantial evidence of the conspirators' criminal activities in late 1993. Members of the Chicago Police Department who patrolled Ida Wells testified to seeing Lawrence McCarroll, Brock, Anderson, Key, and Jarrett frequently conversing in small groups that would quickly disperse if approached. At trial, Chicago Housing Authority officers confirmed this description of the appellants' furtive actions. A CHA officer also remembered observing Lawrence McCarroll driving through the neighborhood around Ida Wells in a variety of cars, including a Toyota Land Cruiser, a Lexus, a Honda, a Pontiac Grand Am, and a Nissan Maxima. Police officers followed Lawrence McCarroll, Brock, and Jarrett to the conspiracy's laboratory in south Chicago and once photographed the group at that location.
The officers also observed more direct evidence of drug sales. One CHA officer, in particular, testified that he saw Key taking money from persons in exchange for small objects while Jarrett "looked out" for Key. Numerous police officers also testified to seeing Anderson, Key, and Jarrett handing small packages to customers in cars in exchange for money. An officer once retrieved one of these packages and found that it contained white powder.
Most dramatically, on October 21, 1994, a CHA officer observed an unindicted co-conspirator named "Sconey" at Ida Wells hawking heroin like hotdogs at a ball game. The "brand" name of the conspirators' heroin was "Thunder," and Sconey was observed yelling, "Thunder, Thunder, I got that whip!" For the benefit of other pushers, he would also yell out "Car 13" whenever a CHA car drove by and "Car 15" when a CPD vehicle approached. Sconey unwittingly approached a CHA officer's unmarked car and asked the officer if he wanted some Thunder. When the officer declined, Sconey asked him to move his car away so other customers could get theirs.
The conspirators also provoked suspicion of their activities in a number of confrontations with law enforcement officials. When stopped by police on December 30, 1993, Appellant Anderson stated that he was unemployed and could not explain his possession of $4,252 in cash. Just three days later, Anderson was stopped again by police after he sat in a car near Ida Wells receiving money; Anderson took the police on a six-block car chase, but he was eventually apprehended and found to be carrying $4,150 in cash. Appellants Key and Brock also led police officers on a brief car chase on January 21, 1994. The two co-conspirators abandoned their car after crashing it and fled in different directions; a police officer caught Brock and found him in possession of $470 in cash. Four days after this incident, police stopped Anderson for traffic violations and found him carrying $390.
The conspirators continued to entangle themselves with the police throughout 1994. On April 3, a pat-down search of Lawrence McCarroll and Anderson revealed over $650 in cash on McCarroll and over $1,000 in cash on Anderson. The next day, Anderson was again in trouble with the law. Upon seeing a CPD officer, Anderson threw a marijuana package to the ground and ran into his apartment. The officer chased Anderson into the apartment and discovered $12,750 cash in a pail, as well as 30-50 gym shoes and a great deal of designer clothing in Anderson's closet. Anderson was again stopped for a traffic violation on May 20, 1994, along with Derrick Jarrett; a pat-down of Jarrett found $1,220 in cash even though he stated that, like Anderson, he was unemployed.
Incidents like these convinced law enforcement officials that the conspirators were operating an enormous drug enterprise out of the Ida Wells complex. The Joint Task Force on Gangs, an inter-agency unit headquartered in the F.B.I.'s Chicago office, installed wiretaps on the conspirators' phones. The conversations secretly taped in late 1994 provided some of the most incriminating evidence against the appellants. The wiretaps recorded countless calls in which the conspirators updated each other on the progress of their heroin sales on the street, called for more heroin to be delivered to those sellers, discussed "cutting" (diluting) high-purity heroin, and instructed each other about where to deposit the proceeds of their drug sales. The Task Force's wiretaps operated from November 14 until December 22, 1994, and ran again from January 1 until appellants' arrests on January 23, 1995.
In particular, the wiretaps captured incriminating conversations among the conspirators regarding their purchases of large amounts of high-purity heroin (which they, in due course, would dilute at their laboratory and sell in small increments at Ida Wells). Appellant Samir Hameen spoke with Lawrence McCarroll on December 3, 1994, about paying $12,500 for one hundred grams of heroin. One week later, Lawrence McCarroll and Hameen agreed to "take care of some business" that day, and then later complained about the way in which their heroin supplier had driven a hard bargain. Hameen and Lawrence McCarroll spoke again on December 18 about their need to buy more heroin from their wholesale seller before Christmas. Calls from a three-week period showed that the conspiracy regularly bought many hundreds of grams of high-grade heroin.
The wiretaps also provided evidence of a wholesale purchase on January 15, 1995, just before law enforcement officials arrested the conspirators. Accompanied by Judy McCarroll and Lawrence McCarroll's young son, Hameen drove to a meeting at which he tried to purchase more than 500 grams of high-purity heroin from "Sam," the conspirators' wholesale seller; Sam only had 500 grams available but said that he would have more heroin the next day. Over a cellular phone, Lawrence instructed Hameen to pay $58,000 for the 500 grams. Hameen later reported to Lawrence over the phone that Sam had stated that this amount was insufficient and had insisted on their usual rate of $12,500 per 100 grams. Hameen told Lawrence that he had promised to bring the additional money to Sam at their next purchase and had overcome Sam's reluctance by reminding him that "they had been doing this for over a year" and that they were regular customers who came back to him "like milkmen." While driving back from this purchase, police officers stopped Hameen and Judy McCarroll, who successfully concealed the half-kilogram of heroin by sticking it under her shirt and holding her crying grandson close to her chest. Soon thereafter, Judy McCarroll reported the incident to her son in a recorded conversation in which she declared that her quick thinking was a product of divine intervention.
The wiretap evidence was corroborated by a series of purchases by the Government's informant, Fred Kinnie. Kinnie purchased heroin of varying degrees of purity from Appellant Brock on six separate occasions from July 21 to December 8, 1994. Kinnie bought six grams of heroin for $1,800 on July 21 and Brock informed him that the heroin could be diluted eight to ten times; the Government later determined that this heroin was 69% pure. Kinnie acquired another six grams of heroin for $1,800 on August 19, but this time the heroin was 83% pure. In making his third purchase at Ida Wells on September 5, Kinnie had to ask Appellant Jarrett where to find Brock. He followed Jarrett's directions and made a third purchase of six grams of 57%-pure heroin for $1,800; Kinnie observed Brock hand the $1,800 immediately to Appellant Key. Kinnie once more bought six grams for $1,800 on September 30, whereupon Brock told Kinnie that he could handle sales up to 250 grams if Kinnie desired more heroin. The heroin at this fourth purchase was 61% pure. At the fifth purchase on November 11, Kinnie bought seven grams for $2,000 and this heroin tested at 61%-pure (the same level as the heroin of the fourth purchase). Finally, Kinnie made his last and largest purchase on December 8. He bought ten grams of 43%-pure heroin and a "G pack," which contained fifty, half-gram packages of heavily-diluted heroin (7.7% purity). The ten grams sold for $2,500, while the "G pack" cost Kinnie $1,000.
Further information about the conspiracy's activities was provided by Linda Davis, a resident at Ida Wells who allowed the appellants to store drugs and money in her apartment in exchange for money. The conspirators referred to Davis as "Miss D" in a number of recorded phone calls. In August 1994, for example, Appellant Key gave her a plastic bag of tenand twenty-dollar bills packaged in rubber bands; Appellant Anderson later came to retrieve this package from her. Davis testified at trial that Appellants Jarrett and Brock also followed this practice of depositing packages of rubber-banded cash with her regularly.
The conspirators flaunted their newfound wealth to their neighbors, but they went to great lengths to hide it from the Government. Four of the appellants--Judy McCarroll, Lawrence McCarroll, Dwight Anderson, and Jeffrey Brock-- did not file income tax returns for the years 1990-1994. The McCarrolls took charge of laundering much of the conspiracy's profits. Telephone wiretaps in January 1995 recorded Lawrence and Judy discussing the purchase of a $150,000 apartment building and over $25,000 of jewelry. Teresa Howard (a co-defendant who did not appeal her conviction or sentence) bought three cars with cash for Judy McCarroll and helped funnel the conspiracy's drug money into other legitimate assets. Also, a man named Angelo Evans purchased two expensive cars with cash provided by Lawrence McCarroll within a two-month period in late 1993. Just prior to his arrest, Lawrence McCarroll was negotiating with Evans over the cash purchase of a luxury sedan that was to be a birthday present for Judy McCarroll.
B. Arrests and Seizures of Evidence
Police arrested all of the appellants on January 23, 1995, with the exception of Appellant Anderson, who was incarcerated at the Menard Penitentiary. Lawrence McCarroll and Jeffrey Brock attempted to escape arrest by both car and foot. When they were apprehended, Lawrence McCarroll was wearing a $3,500 mink coat, thousands of dollars worth of jewelry, and possessed $328 in cash; Brock had approximately $450 on his person. Lawrence McCarroll admitted that he was surprised how much information the F.B.I. had about the conspiracy's operations, and he offered to lead the Government to Sam, the conspiracy's wholesale supplier. Police found Derrick Jarrett at Ida Wells holding over $500 cash and wearing $700 worth of jewelry. A CHA officer arrested Judy McCarroll and Hameen and seized 499.4 grams of 70%-pure heroin, $2,750 in cash, and a gold bracelet worth nearly $1,500.
Concurrent with these arrests, law enforcement officials executed four search warrants on apartments controlled by the appellants. One of these apartments--the conspiracy's laboratory in South Chicago--contained hundreds of plastic baggies, cooking materials, lactose containers (lactose is used to dilute high-purity heroin), razor blades, "cooking" recipes, and a white powder residue throughout the apartment that tested positive for heroin. In another apartment, Government agents found an invoice for a $3,300 fur in Hameen's name, a scale, records of drug sales, and about $850 in cash. The search of Lawrence McCarroll's home revealed approximately $45,000 worth of receipts (tracing the conspiracy's laundered funds). Lastly, at Judy McCarroll's house, agents found a receipt for a fur appraised at almost $15,000 and a $5,500 fur (in which "Judy McCarroll" was embroidered).
The most important item seized from Judy McCarroll's house, however, was the conspiracy's complex bookkeeping system. An experienced F.B.I. agent, Daniel Clouse, explained this system to the jury at trial. The appellants kept track of their enormous cash flow through terminology like "flats," "folds," and "stacks." The conspirators used these same terms in their phone conversations with each other. The papers kept by Judy McCarroll indicated that the appellants sold most of their product in $20, half-gram packages. Agent Clouse testified that these documents, which concerned discrete periods of time (October 20, 1993, to April 8, 1994, and June 3 to July 23, 1994), evidenced over $700,000 in sales. The conspiracy's total sales, according to Agent Clouse, probably would be exponentially greater than this figure because the seized documents covered only a limited period of time and only a limited scope of the drug operation within that period.
C. Verdicts and Sentences
Appellant Key had not yet attained the age of eighteen at the time of his arrest. He turned eighteen in May 1995, and, pursuant to 18 U.S.C. sec. 5032, the Government moved to transfer him to adult status on August 4, 1995. The district court granted that motion in September, and Key immediately appealed to this Court. On the last day of his trial, February 14, 1996, we held that an order issued under sec. 5032 is immediately appealable as a collateral order but that Key's appeal was moot for a variety of reasons. United States v. J.J.K., 76 F.3d 870, 871-72, 873 (7th Cir. 1996).
After a month-long trial, the jury returned the following convictions:
(1) Lawrence McCarroll, Jeffrey Brock, Derrick Jarrett, Judy McCarroll, Samir Hameen, Dwight Anderson, and Tamara Cumbo were guilty of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. sec. 846; (2) Lawrence McCarroll was guilty of sixteen counts of possessing heroin with intent to distribute in violation of 21 U.S.C. sec. 841; (3) Jamie Key was guilty of ten counts of possessing heroin with intent to distribute in violation of 21 U.S.C. sec. 841; (4) Jeffrey Brock was guilty of eighteen counts of possessing heroin with intent to distribute in violation of 21 U.S.C. sec. 841; (5) Judy McCarroll and Samir Hameen were each guilty of two counts of possessing heroin with intent to distribute in violation of 21 U.S.C. sec. 841; (6) Derrick Jarrett was guilty of seven counts of possessing heroin with intent to distribute in violation of 21 U.S.C. sec. 841; (7) Judy McCarroll was guilty of one count of using a minor to avoid detection of a narcotics crime in violation of 21 U.S.C. sec. 861; (8) Lawrence McCarroll and Judy McCarroll were each guilty of one count of conspiracy to defraud the United States in violation of 18 U.S.C. sec. 371 (Teresa Howard pleaded guilty to one count of this charge); (9) Judy McCarroll was guilty of four counts of money laundering in violation of 18 U.S.C. sec. 1956; (10) Lawrence McCarroll was guilty of six counts of money laundering in violation of 18 U.S.C. sec. 1956; and (11) Tamara Cumbo was guilty of one count of money laundering in violation of 18 U.S.C. sec. 1956.
The district court sentenced the defendants in June and July of 1996. From a range of 360 months to life, the court sentenced Lawrence McCarroll to 396 months imprisonment. From a range of 293 to 365 months, the court sentenced Jeffrey Brock to 320 months imprisonment. From a range of 262 to 327 months, the court sentenced Dwight Anderson to 270 months imprisonment. From a range of 324 to 405 months, the court sentenced Samir Hameen to 324 months imprisonment. From a range of 292 to 365 months, the court sentenced Judy McCarroll to 328 months imprisonment. From a range of 235 to 293 months, the court sentenced Derrick Jarrett to the minimum 235 months imprisonment. Finally, from a range of 235 to 293 months, the court sentenced Jamie Key to 240 months imprisonment. Appellants waived a jury on the forfeiture charges and the district court ordered forfeiture jointly-and-severally against all appellants (except Key) in the amount of $3,341,045.20.
Appellants' consolidated brief raises three issues on appeal: (1) whether the district court should have excluded certain post-arrest conversations recorded when the appellants were incarcerated, (2) whether the district court erroneously set the appellants' "relevant conduct" at 75.4 kilograms of heroin, and (3) whether the district court erred in issuing its forfeiture order in excess of three million dollars. Many of the appellants raise separate claims in addition to these three questions. Four of the appellants-- Hameen, Judy McCarroll, Jarrett, and Key--contend that, even if the conspiracy's relevant conduct was 75.4 grams, the district court should not have attributed the full amount of heroin to them for sentencing purposes. Three of the appellants--Anderson, Hameen, and Key--argue that the Government did not prove their guilt beyond a reasonable doubt. Judy McCarroll admits that we cannot review the district court's refusal to grant a downward departure on her sentence based on an extraordinary physical impairment or an unfairly high criminal history category, but she asks us to do ...