Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP-98-38-CR-01-13-M/F--Larry J. McKinney, Chief Judge.
Before Ripple, Evans, and Williams, Circuit Judges.
The opinion of the court was delivered by: Williams, Circuit Judge.
In this case, we are presented with former participants in a drug conspiracy who raise a myriad of challenges to their convictions and sentences. We affirm in all respects except we remand for the resentencing of two defendants because the district court erred by applying U.S.S.G. sec. 2D1.1(d)(1), the drug offense murder cross reference, to their sentences. We also, in affirming the district court, adopt the Tenth Circuit's view of waiver, see United States v. Cherry, 217 F.3d 811 (10th Cir. 2000), and approve the admission of the testimony of a murdered co-conspirator when the murder was reasonably foreseeable to other conspirators.
Defendants Willie Boddie, Stephanie Johnson, Dennis Jones, Anthony Spradley, Anthony Thompson, Ellis Walker, and Mark White were charged with crimes arising out of their participation in a large, Indianapolis-based drug conspiracy. The conspiracy reigned from 1992 to 1997 and involved the trafficking of hundreds of kilograms (kilos) of cocaine, the accumulation and laundering of substantial profits, and two short-lived business pursuits. The conspiracy seemed invincible until November 1996, when Marcus Willis, working on behalf of law-enforcement officials, arrived on the scene. He worked for law enforcement for approximately eight months (through June of 1997) until he was murdered in one of the defendant's vehicles. Not long after his murder, charges were filed against each of the defendants and several others not part of this appeal.
Count 1 of the indictment charged each defendant with conspiracy to distribute more than five kilograms of cocaine (21 U.S.C. sec. 846). Counts 2-3 charged defendants Spradley and White with murder of an informant (18 U.S.C. sec. 1512(a)(1)(C)), and counts 5-6 charged Jones with assisting in that murder (18 U.S.C. sec.sec. 1512(a)(1)(B), (C)) and (18 U.S.C. sec.sec. 1111(a), 1113). Johnson was charged under counts 8, 9, 16, and 17 for substantive money laundering and conspiracy to launder.*fn1
At trial, the government relied heavily on the testimony of several coconspirators who agreed to cooperate with the government in exchange for leniency. There was little physical evidence of the drug conspiracy, but the testimonial evidence, for the most part, was overwhelming, and the jury convicted all the defendants, except Johnson, of drug conspiracy. As to the Marcus Willis murder, the alleged eye-witnesses, unindicted coconspirator William Cox and defendant Mark White, could not agree on who actually murdered Willis and neither of their stories could be corroborated. We assume that this inconsistency led the jury to acquit Spradley, Jones, and White of the murder-related charges. Finally, as to Johnson's money laundering charges, the government presented evidence that she allowed several defendants to purchase vehicles, homes, and motorcycles in her name to conceal the identity of the true owners and the illegal source of the purchase funds. Based on this evidence, the jury convicted her of substantive money laundering and conspiracy to launder.
The district court sentenced Spradley, Boddie, Jones, and White to life imprisonment on the drug conspiracy count pursuant to sec. 2D1.1 of the Sentencing Guidelines after concluding that the conspiracy trafficked in more than five kilos of cocaine and that the sec. 2D1.1(d)(1) murder cross reference was applicable to Spradley, Jones, and White. These same defendants, including Boddie, were also sentenced to 20 years' imprisonment for their money laundering counts--to run consecutive to their life terms. Walker was sentenced to 327 months and Thompson to 210 months on the drug conspiracy count. Johnson was sentenced to four 59-month sentences for the money laundering convictions, to be served concurrently. The defendants now appeal their convictions and sentences on a number of grounds.
A. Murder Cross Reference (U.S.S.G. sec.2D1.1(d)(1))
Spradley, Jones, and White challenge the district court's application of the drug offense murder cross reference, sec. 2D1.1(d)(1). This cross reference directs judges to apply the First-Degree Murder Guideline, sec.2A1.1, if the defendant's relevant conduct includes the killing of a victim under circumstances that would constitute premeditated murder as defined by 18 U.S.C. sec. 1111. United States v. Meyer, 157 F.3d 1067, 1073 (7th Cir. 1998). The defendants do not challenge the district court's factual findings, but argue that its findings are insufficient to support the application of the cross reference. Reviewing their challenges de novo, see United States v. Hunt, 272 F.3d 488, 496 (7th Cir. 2001), we agree that the findings are insufficient as to Jones and White, but disagree as to Spradley.
As the defendants state in their opening brief, "[t]he district court's findings of fact relevant to the death [of Marcus Willis] represent a meticulous and objective assessment of the facts as the court found them." So we quote a large portion of the findings here rather than rewriting them.
The evidence is that Marcus Willis was found fatally shot in the late evening or early morning hours of Friday/Saturday June 27/28, 1997. Dennis Jones was arrested while driving a Yukon automobile into the parking lot at Mobile Jamzz on Key stone Avenue in Indianapolis on Monday, June 30, 1997. The operator of Mobile Jamzz was contacted by a person identified as Demarco to arrange for an appointment for repair. The call was made on Saturday morning, June 28, 1997. The repair was scheduled for Monday, June 30, 1997. That Yukon was the . . . same Yukon which White had been seen operating on many occasions and was generally identified as White's vehicle. Forensic evidence was presented establishing that the blood of Marcus Willis was present in that vehicle. At the time of Jones' arrest, the front passenger seat had been removed, the carpet on the passenger side had been cut out, and there was damage to the left side of the front windshield of the vehicle . . . .
The evidence also reveals that some of the remains of a left front seat used in Yukon automobiles of the same year and model as this one, and some seat belt parts were found by police later in a fire pit in the back yard at [coconspirator's] Dwayne Gibson's detail garage on Caroline [Street]. Carpet knives, along with the boxes in which they were purchased, were found by police in the garage. Car pet samples from the Yukon carpet were found on the knives. Glass fragments consistent with the windshield glass of the Yukon were found on the floor of the Caroline garage. Blood samples were obtained from the overhead door at Caroline and from the floor of the garage. These samples were matched with Marcus Willis' blood. Gibson later led law enforcement to the place where he had tossed the floor mats from the Yukon. The blood of Marcus Willis was found on those mats. . . .
The district court then stated that this physical evidence was consistent with Keith Cork's and Gibson's trial testimony about the attempted coverup of the murder. Among other things, both testified that Spradley orchestrated the coverup, directed Jones to drive the Yukon, and Gibson to follow Jones to Mobile Jamzz. They further testified that, as Jones was being apprehended by police in Mobile Jamzz's parking lot, Gibson fled to another location and called Spradley to alert him of the arrest.
The court chose not to credit Jones's testimony as to what occurred before his arrest on the morning of June 30, in part because it could not be corroborated. Jones testified that he was with Stephanie Johnson in a hotel room that morning and that Gibson paged him between 9:00 and 10:00 a.m., after which Johnson took him to meet Gibson. He further testified that Gibson gave him $20.00 to drive the Yukon to Mobile Jamzz. Johnson, however, told police that she had not been with Jones that morning and produced an employment record showing that she clocked into work that day at 8:30 a.m.
Based on this evidence, the district court concluded that Willis was murdered in White's Yukon, and that Spradley and Jones, among others, tried to cover up the murder.
2. Application of the Murder Cross Reference
The district court inferred from Spradley's, Jones's, and White's participation in the cover-up that they knew Willis had been murdered by someone as a result of his informant activities, which threatened to expose the conspiracy. The attempt to cover up the murder, the district court concluded, was done in furtherance of the goals of the conspiracy and in an attempt to avoid detection. Because relevant conduct includes any action "that . . . occurred . . . in the course of attempting to avoid detection or responsibility for that offense," see U.S.S.G. sec.1B1.3(a)(1), the court thought the sec.2D1.1(d)(1) murder cross reference should be applied to each of these defendants.*fn2
According to these defendants, the district court's findings are insufficient to support application of the cross reference. The Guidelines define relevant conduct as activities that occurred "in the course of attempting to avoid detection or responsibility for [the] offense [of conviction]." U.S.S.G. sec. 1B1.3(a)(1)(B). Therefore, they argue, it was inappropriate for the district court to base its application of the cross reference on their cover-up activities because their offense of conviction is a drug-trafficking conspiracy, not murder.*fn3
We disagree with the defendants' characterization of the district court's ruling. A fair reading of the court's order makes clear that it found that the cover-up activities were committed at least in part to avoid detection of the conspiracy. For example, the district court links the defendants' cover-up activities to the conspiracy when rejecting Spradley's objection to the Guideline application: "Spradley's role in the clean-up and his knowledge that Willis was giving evidence to the police support the inference that Spradley was aware that Willis had been murdered in an attempt to keep Willis from doing any further damage to the cocaine conspiracy." Similar language is used regarding defendants Jones and White. Therefore we believe that the district court did not treat the murder as the defendants' offense of conviction.
However, the defendants' argument highlights another potential problem with the district court's ruling--the possibility that section 2A1.1's premeditation requirement (see U.S.S.G. sec. 2A1.1, cmt. n. 1) may have been lost in the application of the several Guideline provisions at play here. We remanded a case recently because a district court failed to make a specific finding of premeditation. In that case, United States v. Thomas, 280 F.3d 1149 (7th Cir. 2002), the district court applied the First-Degree Murder Guideline to a defendant convicted of firearm-related convictions. Several facts relied upon by the district court seemed to connect the defendant (Thomas) to the murder of Armando Leal: Thomas was arrested while driving Leal's vehicle; Leal was likely murdered in that vehicle; Thomas pawned a pistol owned by Leal; and Leal's blood was found in Thomas's driveway. But the district court did not discuss how these facts showed that Thomas murdered Leal with malice aforethought. Id. at 1158. The inference of premeditation was not the only one that could be drawn from those facts (for example, Thomas could have driven away in Leal's car after Leal had been murdered by someone else) so we remanded for the district court to make a specific finding of premeditation. Id. at 1156-57.
Here, the district court found that Spradley, Jones, and White knew of the murder and that it was committed in furtherance of the conspiracy. In so doing, the court apparently invoked Guideline sec.1B1.3(a)(1)(B), which holdsdefendants accountable at sentencing for the reasonably foreseeable relevant conduct of their coconspirators as long as the conduct was done in furtherance of the conspiracy. Because this additional Guideline is in play, the question we are presented with is slightly different than that presented in Thomas. The question here is whether it was reasonably foreseeable to Spradley, Jones, and White that Willis could be killed, with malice aforethought (premeditation), in furtherance of the conspiracy. See U.S.S.G. sec. 1B1.3(a)(1); sec. 2A1.1. After thoroughly reviewing the court's ruling, we believe that it made findings sufficient to support application of the First-Degree Murder Guideline to Spradley, but not to Jones or White. We now focus our discussion on whether Willis's murder was reasonably foreseeable to each defendant.
The district court found that Spradley knew Willis had been murdered to keep him from relaying any more information to law-enforcement authorities. It based its findings, in part, on evidence that Spradley knew about Willis's informant activities. Coconspirator Keith Cork testified at trial that several days before Willis's murder, he and Spradley confronted Willis about rumors that he had been talking to the police. Cork's testimony was corroborated by a statement to the same effect made by Willis to police on June 20, 1997, approximately ten days before the murder. In addition, Cork testified that Spradley, in a meeting about Willis's informant activities attended by several conspiracy members, said that he would not let anyone hurt them.
We believe that this evidence sufficiently supports the conclusion that it was reasonably foreseeable to Spradley that Willis would be murdered with malice aforethought. Spradley knew that Willis was likely to be murdered in an attempt to prevent him from further exposing the conspiracy, which satisfies the test of reasonable foreseeability. Therefore the district court did not err by applying the ...