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United States v. Thomas

March 24, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 902-Rebecca R. Pallmeyer, Judge.

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


Before POSNER, ROVNER, and SYKES, Circuit Judges.

A jury convicted Terry Thomas of possessing and conspiring to possess heroin and crack cocaine with intent to distribute. Thomas asks us to reverse his convictions on the grounds that (1) the trial evidence established multiple conspiracies at variance with the single charged conspiracy; (2) the federal prosecution was vindictive because the grand jury returned the indictment against him while he was under state charges for the same conduct; and (3) the government's closing remarks about the seriousness of the case and the "burden" of living in a drug-infested neighborhood deprived him of a fair trial. He also challenges his 360-month sentence on the theory that the district court mis-applied the career offender sentencing guideline and imposed an unreasonable sentence. We reject these arguments and affirm Thomas's convictions and sentence.

I. Background

Chicago police officers investigating open-air drug sales in a south-side neighborhood observed Terry Thomas directing street-level drug trafficking on four separate dates in 1999. On the morning of September 5, undercover officers watched from an abandoned building as Thomas and two others worked in concert to peddle drugs to passing motorists and pedestrians in the 800 block of West 50th Place. Thomas and one of his accomplices solicited potential business by shouting "rocks" (slang for crack cocaine) at passing cars. The third accomplice, a woman, stood a few doors down from Thomas ready to make the sales. Prior to directing a customer to the woman, Thomas ordered the second accomplice to search a nearby alley. After learning the alley was clear, Thomas relayed a signal to the woman, who then pulled what appeared to be drugs from her bra and made the sale. Minutes later, officers observed a similar sequence of events as a second customer approached the woman. Shortly thereafter, Thomas became suspicious that police were watching these transactions and ordered the second accomplice to check the building. The accomplice entered the building and was arrested by the officers positioned inside. The police also arrested Thomas.

Two days later Thomas was back on the street. On September 7 uniformed Chicago police officers patrolling the same block of West 50th Place noticed several people forming a queue in an alley. The officers drove into the alley and overheard Thomas, whose back was to them, yelling "rocks" and "blows" (slang for heroin). As the people in the line scattered, Thomas turned, made eye contact with the officers and yelled, "four-seven," a street term meaning "police." The officers detained and searched Thomas but found no contraband.

About seven weeks later, on the morning of October 22, an undercover officer positioned in an abandoned building again observed Thomas shouting "rocks" and "blows" at passing cars in the same block of West 50th Place. One car stopped in front of Thomas, who after briefly talking with the driver, pointed to a woman standing on the sidewalk. The driver then got out of his car, approached the woman, and gave her some money. The woman responded by dropping what appeared to be a small bag of drugs in the driver's hands. The officer stuck his head out of the window to better observe the woman, but in doing so drew the attention of a young man on the sidewalk directly below him. The young man then crossed the street and talked to Thomas, and both men pointed up at the abandoned building. Thomas then jogged toward the woman conducting the drug sales, shouting something at her as he approached; she responded by running down a nearby gangway and out of sight. The officer radioed the woman's description and location to nearby officers, but they were unable to locate her.

Twelve days later, on the morning of November 3, undercover officers posing as construction workers positioned themselves in the back of a school bus parked close to West 50th Place. The officers watched and heard a man, later identified as Michael War and charged as Thomas's coconspirator, making noises at people walking through the alley. War referred anybody who responded to his solicitation to a man seated on a nearby porch, later identified as Tyrone Thompson and also charged as a coconspirator. The officers watched Thompson make several drug sales, and then observed Thomas approach War and ask, "Are you out?" War in turn asked Thompson, "Are you out?" Thompson said he was, and Thomas told War, "Meet me by the yard." Thomas then resupplied War from a small bag he retrieved from a larger one stashed under a shrub. At this point the officers moved in and arrested War, Thompson, and Thomas, and recovered the bags. The smaller bag contained 2.9 grams of heroin; the larger one contained 11.2 grams of heroin and 15.1 grams of crack.

Based on the November 3 incident, Thomas was indicted on one count of possessing heroin and in excess of 5 grams of crack with intent to distribute. By way of superseding (and later amended) indictments, the government added a conspiracy count alleging that from August to November 1999, Thomas conspired with War, Thompson, and unnamed others to possess heroin and in excess of 5 grams of crack with intent to distribute. A jury convicted Thomas on both counts, and the district court sentenced him to 360 months' imprisonment.

II. Analysis

A. The Conspiracy Conviction

Thomas's primary argument is that the trial evidence was insufficient to prove the single drug conspiracy charged in the indictment. Thomas does not directly challenge the evidence against him stemming from the four days of police surveillance at the West 50th Place drug market in 1999. He instead argues that because the evidence established that he worked with different accomplices and assumed somewhat different roles on each of those four dates, no rational juror could find from these four mini-conspiracies that he engaged in the single, overarching conspiracy charged in the indictment. The result, Thomas contends, was a fatal variance between pleading and proof.

When an indictment charges a lone conspiracy, proof of other conspiracies at trial is not problematic if the evidence also establishes the charged conspiracy. See United States v. Messino, 382 F.3d 704, 709-10 (7th Cir. 2004). The threshold question in fatal-variance analysis is whether sufficient evidence supported the charged conspiracy. Id. at 709. Put another way, Thomas must convince us that viewing the evidence in a light most favorable to the government, no rational juror could have found the single conspiracy alleged in the indictment. Id. This is ...

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