Appeal from the United States District Court for the Southern District of Illinois.
No. 94-CR-40039 William L. Beatty, Judge.
Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.
So far, in two appeals to us in this case, Walter Berry, Jr. is batting a slick .500. Today, his average slips to .333.
Berry was indicted in 1994 on two counts of distributing crack cocaine in early September of 1993. A jury decided he was guilty on one of the counts and not guilty on the other. After the verdict was returned it was discovered that the trial was futzed up because copies of the government's transcription of a tape-recorded conversation involving Berry and an informant inadvertently slipped into the jury room during deliberations. This faux pas caused the trial judge, Chief Judge Phil Gilbert of the Southern District of Illinois, to grant Berry's motion for a new trial.
The government appealed the order granting Berry a new trial. We denied Berry's request to affirm the order and remanded the case to the district court to determine whether the presence of the transcript in the jury room was actually prejudicial to his rights. See United States v. Berry, 64 F.3d 305 (7th Cir. 1995). On remand, Chief Judge Gilbert determined that Berry was prejudiced and that a new trial was required. The government again appealed the new trial order, and this time Berry won. See United States v. Berry, 92 F.3d 597 (7th Cir. 1996).
Upon remand, Chief Judge Gilbert transferred the case to Judge William Beatty for the retrial. Before things could get underway, however, a grand jury returned a 3-count superseding indictment that expanded the scope of the charges to include a conspiracy to possess and distribute crack cocaine running from March of 1992 to June of 1994. The old distribution count upon which Berry was convicted in the first trial remained in the new indictment along with an additional distribution charge directly related to it. The second jury found Berry guilty on the conspiracy count but not guilty on the two distribution charges. Berry is now here for the third time.
The charges against Berry grew out of a crack cocaine dealing investigation centered around the Elm Street Housing Project in downstate Carbondale, Illinois. As usually happens in drug cases growing out of investigations of this sort, former pals and associates of a defendant end up being the government's chief witnesses, and such was the case here, particularly with a fellow named Ryan Vinson. Vinson's testimony, which the jury was free to believe, drove a batch of nails into Berry's coffin.
Vinson grew up in the Elm Street Project and hung out with Berry's younger brothers. When Vinson was 16 (in 1991) he started buying crack from Berry, who was 7 years older. Berry, who was born in Hayti, *fn1 Missouri, sold crack (usually as $20 rocks but sometimes the sales involved $100-$150 "sixteenths") to Vinson more than 30 times, and eventually, Vinson said, he often "stood security" and made drug runs for Berry after helping to "weigh and bag" the dope. In addition to Vinson the jury heard from others-- Eddie Lee Brown, Clinton Wooley (Vinson's uncle), and Tishunda Rowe--who essentially confirmed that Berry was a crack dealer.
Berry's first attack on appeal goes to the sufficiency of the evidence. He says no conspiracy was proven, only a "buyer-seller" relationship between him and others, including Vinson. This view of the evidence, however, is based on a flawed interpretation of several of our cases, including United States v. Mims, 92 F.3d 461 (7th Cir. 1996), and United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993) (en banc).
In Lechuga a government undercover agent tried to buy cocaine from a fellow named Pinto. To get the cocaine, Pinto turned to Pagan, who contacted Lechuga. Lechuga arranged to sell the drugs to Pagan in an apartment building; Pinto and the government agent attended the sale. Lechuga was ultimately convicted of, among other things, conspiring with Pinto and others (presumably Pagan) to distribute the cocaine. On appeal Lechuga argued that the only evidence that he conspired with Pinto was that he sold him a quantity of drugs that was greater than what Pinto would need for his personal use. That evidence, Lechuga contended, was insufficient to prove that he and Pinto actually conspired to commit a crime--there was no evidence, he argued, that he and Pinto agreed to commit any crime beyond the sale. Although we affirmed Lechuga's conviction, we agreed with the premise of this argument, holding "What is necessary and sufficient is proof of an agreement to commit a crime other than the crime that consists of the sale itself." 994 F.2d at 347. We reasoned:
When the sale of some commodity, such as illegal drugs, is the substantive crime, the sale agreement itself cannot be the conspiracy, for it has no separate criminal object. What is required for conspiracy in such a case is an agreement to commit some other ...