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United States v. Schalk

February 12, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
STEVEN SCHALK, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 05 CR 30026-Jeanne E. Scott, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED OCTOBER 31, 2007

Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

Defendant-Appellant Steven Schalk brings this appeal, challenging various evidentiary rulings made during his jury trial in the district court. In particular, Schalk argues that the district court erred by allowing the government to introduce hearsay to bolster its cooperating witnesses' testimony, and that the evidence presented failed to prove that Schalk conspired to distribute more than five kilograms of cocaine, such that no reasonable jury could find Schalk guilty of that crime. We AFFIRM in toto.

I. Background

Schalk was a drug dealer in the Chicagoland area. He regularly sold large quantities of marijuana and cocaine to Joshua Sowers, who in turn, sold smaller but still substantial quantities of cocaine to Michael Meneghetti. Sowers and Meneghetti lived in the Springfield, Illinois area.

In a typical transaction, Meneghetti paid Sowers $900 per ounce of cocaine, and Meneghetti would keep the profits made by his resale. However, when Meneghetti ran into financial difficulties, Sowers agreed to sell the cocaine to him for $780 per ounce, which was "at cost" according to Sowers. At times, Sowers "fronted" the cocaine to Meneghetti and Meneghetti paid Sowers later.

Meneghetti knew Sowers's drug supplier was a man named Steve (who turned out to be the defendant, Steven Schalk), whom Meneghetti had met on three separate occasions.*fn1 During two of the meetings with Schalk, Meneghetti witnessed Sowers give Schalk bags of money and Schalk give Sowers significant amounts of cocaine. Meneghetti never had any direct agreement with Schalk to sell or distribute cocaine.

In January 2005, Meneghetti was arrested for delivery of cocaine. In an effort to "help himself," Meneghetti contacted an agent with the Drug Enforcement Agency ("DEA"), Tom Bonnett. Agent Bonnett provided Meneghetti with a device that enabled him to record telephone conversations with Sowers, from whom he claimed to have been purchasing about two or three ounces of cocaine each week for about eight months.

Meneghetti began taping phone conversations with Sowers immediately. The first taped conversation took place on January 21, 2005, and included references to Sowers's plan to meet with an unnamed man, and concerns that the unnamed man might tell Sowers to meet him halfway. In another call later that day, Sowers said that the man was on his way and would be there by noon, but that he was not answering his phone, since the man did not want "to talk on his phones like that anyway." Meneghetti said that he had "people waiting," to which Sowers responded, "Trust me, dog. I'm trying to get this to you as fast as [I] can so you can get this debt paid off."

A few days later, Monday, January 24, 2005, Meneghetti taped more conversations. After he avoided Sowers for two days, Meneghetti was told by Sowers that his unavailability created a "hell of an inconvenience for [him]" and caused him to get his "ass chewed." When Meneghetti said that he could deliver $1,000 to Sowers that day and more on Friday, Sowers asked, "You got anybody with, anybody wanting some right now with money up front?" In a subsequent call that day, Sowers again told Meneghetti that he "got [his] ass chewed 'cause of [him]," to which Meneghetti replied, "Steve was pissed?" Sowers's response was unintelligible.

Later that same day, Meneghetti recorded a conversation that took place in Sowers's bedroom. During that conversation, Sowers confirmed that "Steve" was going out of town, and that he had to "meet [Steve] tomorrow with whatever [he] can get." Meneghetti asked Sowers if he was going to "be out" the whole time Steve was gone, to which Sowers replied, "I'll have some for you. Oh yeah, that's why I'm meeting him Wednesday."

On Wednesday, January 26, 2005, Sowers drove to a restaurant where he met Schalk. In the parking lot, Sowers gave Schalk $9,000 and Schalk gave Sowers eleven ounces of cocaine. After that meeting, police followed Sowers until he exited the highway, where they arrested him and found the cocaine in the center console of his car. He consented to a search of his house, where DEA agents found an ounce of cocaine, twenty-three pounds of marijuana, and two notebooks in which Sowers recorded his drug transactions.

After his arrest, Sowers entered into an agreement with the government, promising to assist law enforcement in the investigation and prosecution of Steve Schalk with an expectation of leniency for himself later. Sowers told police that he began dealing drugs with Schalk sometime in 2003. He said that initially Schalk just gave him marijuana to sell, but after a couple of months, Schalk also started fronting him cocaine after Sowers told him that he "could sell it." As Schalk found out, Sowers proved to be truthful, and the two reached an agreement that Schalk would front Sowers drugs, and Sowers would pay for the drugs after he sold them. Sowers estimated that he received approximately twenty to thirty pounds of marijuana at a price of $1,600 per pound, and nine to eighteen ounces of cocaine at $780 per ounce, every two weeks between August 2003 and his January 26, 2005 arrest.*fn2 ...


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