Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 CR 635-Charles P. Kocoras, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before KANNE, WOOD, and SYKES, Circuit Judges.
A jury convicted Rodney McLee of cocaine conspiracy and related drug-trafficking crimes and also two firearms offenses. McLee's wife and co-defendant, Vicki Murph-Jackson, was convicted with him on the drug charges. Both received lengthy prison sentences. Their appeals have been consolidated, and numerous trial and sentencing errors are alleged. McLee argues the evidence was insufficient to convict him on the firearms charges. Both defendants contend that certain evidence predating the conspiracy was erroneously admitted, that their right of cross-examination was erroneously restricted, and that the government's wiretap evidence should have been excluded. They also argue that factual findings made by the district court at sentencing were clearly erroneous. Finally, McLee challenges his sentence under United States v. Booker, 543 U.S. 220 (2005). We affirm the defendants' convictions and order a limited remand as to both defendants in accordance with United States v. Paladino,401 F.3d 471 (7th Cir. 2005).
Trial evidence established that McLee and Murph-Jackson were intimately involved in all aspects of a large-scale cocaine distribution operation run from the south side of Chicago by a man named Kevin Turner. Turner and other subordinate members of the conspiracy were indicted along with McLee and Murph-Jackson. Turner pleaded guilty to the conspiracy charge and testified against McLee and Murph-Jackson under the terms of his plea agreement. Others charged in the conspiracy- Steve Brown, Dymica Hilt, and Kevin Turner's brother Prince Turner, Jr.-also entered into plea agreements with the government and testified for the prosecution.
Testimony established that upon Turner's release from federal prison on drug-related charges in 1996, he quickly resumed his previous occupation as a seller of cocaine. Turner enlisted the services of his friend McLee and later McLee's girlfriend and future wife, Murph-Jackson, both of whom participated in the operation by delivering drugs to customers, packaging and storing drugs for later delivery, and collecting money from customers. Specifically, Turner testified that he would purchase large quantities of cocaine from his suppliers-as much as 50 kilograms a month-and store it at the home occupied by McLee and Murph-Jackson. McLee and Murph-Jackson, sometimes assisted by others, would weigh and divide the cocaine into smaller amounts and package it for future sale. McLee also cooked cocaine into crack. When Turner arranged a sale with a purchaser, he would contact McLee and either McLee or Murph-Jackson would deliver the drugs, collect the money, and hold it until arrangements could be made for its transfer to Turner.
McLee and Murph-Jackson were paid a salary by Turner for their services. McLee was originally Turner's right-hand man and the person trusted to have control over the cocaine during the period between purchase and sale. However, toward the end of 1998, when Turner became convinced that McLee was skimming cocaine for sale to his own customers, McLee was demoted from his "managerial" position and replaced in this capacity by Murph-Jackson. From this point until the conspirators were arrested in 2002, McLee still packaged drugs, made deliveries, and collected money, but did so under the supervision of his wife.
Two or three times a week from late 1997 to July of 1999, Turner sold cocaine in a wholesale fashion to another drug dealer named Vernon Everett. Everett testified that on some occasions McLee would deliver cocaine he had ordered from Turner, often accompanied by Murph-Jackson. On other occasions Everett would travel to various locations controlled by Turner where Everett would witness McLee weighing out the drugs and/or standing guard over the process with a handgun tucked in the waistband of his pants. On one occasion, Everett and Turner met at a designated location and it was Murph-Jackson, unaccompanied by McLee, who showed up to deliver the kilogram of cocaine Everett had ordered.
In an event not directly related to the drug conspiracy, on May 19, 1998, Officer Ramirez of the Chicago Police Department was dispatched to a location on the south side of the city in response to a complaint of a man wielding a handgun. When the officer arrived on the scene, he saw about ten men congregated together on the sidewalk. One of the men, later identified as McLee, held what the officer described as a .45-caliber, blue steel handgun in his hand. When McLee saw the squad car approaching, he put the gun into the waistband of his pants and fled through a series of residential backyards. McLee was the only one of the group to flee upon seeing the police.
Officer Ramirez drove around the block and caught up with McLee less than a minute after he had fled. The officer ordered McLee to the ground and searched him but did not find a gun. After McLee had been handcuffed and transferred to the custody of another officer, Ramirez searched the path by which McLee had fled and discovered a loaded .45 handgun lying in the grass in one of the yards McLee had crossed during his flight. At the time of this incident, McLee was a convicted felon. Turner testified that he had been with McLee earlier that same day and McLee was carrying a black gun with a brown handle that Turner had given to him. Turner testified that McLee "often" carried a firearm on drug transactions "to secure himself and secure me."
At some point during 2001, Murph-Jackson and McLee separated and McLee moved out of the couple's home in the Chicago suburb of Calumet City, leaving Murph-Jackson and her children as the only regular daily residents of the home. In the summer of 2001, a confidential informant identified Kevin Turner as a drug trafficker to agents employed by the Drug Enforcement Administration ("DEA"). Using information provided by the informant, the DEA made three controlled cocaine buys from Turner in 2001.
Agents then applied for and received court authorization to wiretap two telephones used primarily by Turner. A total of 1,800 calls were subsequently intercepted, and 51 of those calls were presented to the jury at trial, both in transcribed and audio forms. DEA Special Agent Wise testified that the intercepted telephone calls were monitored by DEA agents and simultaneously recorded onto magneto-optical disks located at the DEA offices in downtown Chicago. When the period of wiretap authorization expired, the disks were placed into an evidence bag, sealed, and delivered to the Chief Judge of the District Court for the Northern District of Illinois.
Law enforcement authorities brought an end to Kevin Turner's drug-dealing enterprise on February 21, 2002. On that day a Chicago police officer working with the DEA in the ongoing investigation was detailed to a team maintaining surveillance of McLee. The officer watched McLee leave a tavern and enter a waiting vehicle driven by Murph-Jackson. The officer then followed that vehicle for several blocks until it parked on a city street for a rendezvous with three men in another car. The officer observed McLee get out of Murph-Jackson's car and hand a plastic bag to the driver of the second vehicle. McLee then returned to his wife's car and they left the scene. Another officer in the surveillance team followed the second car as it, too, left the area; a third officer in a marked squad car was eventually instructed to pull the second car over. The driver was identified as Juan Martinez. Martinez consented to a search and police recovered the plastic bag that had been transferred by McLee. It contained $47,060 in cash. Turner later identified Martinez as his principal supplier of cocaine during the latter stages of the conspiracy.
Officers were then dispatched to Murph-Jackson's Calumet City residence and waited there until she arrived home. Murph-Jackson consented to a search of the home. In the attic officers found a blue, plastic storage box containing 37 one-kilogram "bricks" of cocaine and a loaded 9mm Beretta handgun. Officers also recovered approximately 3 kilograms of cocaine and 403 grams of crack from MurphJackson's bedroom. At trial Turner testified that he and McLee had delivered the blue storage container to the Calumet City home earlier in the month. Murph-Jackson's fifteen-year-old daughter, however, offered conflicting testimony on this point; she said that Turner, unaccompanied by McLee, brought the blue storage box to the home.
McLee was charged with conspiracy to deliver cocaine and crack, possession of cocaine and crack with intent to deliver, possession of a firearm in furtherance of a drug-trafficking crime, use of a telephone to facilitate a narcotics offense, and felon in possession of a firearm, contrary to 21 U.S.C. §§ 846, 841(a)(1), 843(b), and 18 U.S.C. §§ 924(c)(1), 922(g). Murph-Jackson was charged with the three drug crimes and the drug-related firearms offense. McLee was convicted by a jury on all counts. Murph-Jackson was convicted of the drug charges but acquitted on the § 924(c) drug-related firearms offense. McLee was sentenced to a total of 322 months in prison, and Murph-Jackson received a sentence of 262 months.
A. Gun Possession in Furtherance of a Drug Crime
The jury found McLee guilty of possession of a firearm in furtherance of a drug-trafficking offense, contrary to 18 U.S.C. § 924(c)(1) and (2). The gun in question was the 9mm Beretta found with the cocaine in the blue storage box in the attic of Murph-Jackson's home. McLee argues there was insufficient evidence to prove possession because he was not living in the home at the time of the search and there was no evidence that he ever had actual physical possession of the gun.
A challenge to the sufficiency of the evidence carries a "daunting" burden. United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004). The evidence is viewed in the light most favorable to the prosecution, and the verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at804-05. We will overturn a conviction based upon insufficient evidence "only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt." United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003).
McLee is correct that the government presented no evidence that he ever possessed the Beretta on his person or that he was living in Murph-Jackson's Calumet City home at the time the gun was found. But neither of these facts was necessary to a conviction on this count. Constructive possession may be established through evidence demonstrating that the defendant had the power and intention to exercise dominion and control over the firearm, either directly or through others. United States v. Walls, 225 F.3d 858, 864 (7th Cir. 2000); United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003). If there was sufficient evidence from which the jury could conclude that McLee had the intent to exercise dominion and control over the gun, it makes no difference that McLee was no longer living in the home and no one testified to seeing him with the gun.
Viewed in the light most favorable to the verdict, the pertinent evidence adduced at trial established that McLee and Murph-Jackson played prominent roles in the Turner drug conspiracy, storing cocaine purchased by Turner, packaging it, delivering the drugs to customers, and collecting large sums of money. The evidence further established that McLee often carried a gun in the course of carrying out these duties as a member of the conspiracy. The Beretta was found in the storage box with 37 kilograms of cocaine in the attic of the home where much of this activity was taking place. McLee, together with Turner, had delivered the storage box to the residence before its eventual discovery by police.*fn1 Testimony also established that although McLee and Murph-Jackson were separated at the time the ...