Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 117-Blanche M. Manning, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before POSNER, EVANS, and SYKES, Circuit Judges.
Michael Hatten-Lubick (his nickname is "Bo-Hunky") appeals from his conviction and sentence for various narcotics-related offenses.
Hatten-Lubick was indicted with a co-defendant, Isaac Norfleet. Specifically, Hatten-Lubick was charged with conspiracy to distribute and possess with the intent to distribute in excess of 50 grams of cocaine base and in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 846, with two substantive counts of possession with intent to distribute cocaine, in violation of U.S.C. § 841(b)(1), and with three counts of using a telecommunications facility in connection with the drug offenses, in violation of U.S.C. § 843(b). He was tried to the court. At trial, the government limited its evidence to distribution of cocaine, not cocaine base. The court found him guilty on all counts. He was sentenced to 120 months on the drug charges, with sentences of 48 months on the other counts to run concurrently. A $5,000 fine was also imposed.
The evidence at trial included telephone conversations intercepted with Title III wiretaps on the telephone of a fellow dealer, Rodney Bew. Bew, facing a long sentence of his own, cooperated with the government in exchange for a recommendation for a downward departure; his testimony was significant.
Bew supplied other dealers with cocaine and crack cocaine in and near the cities of Joliet and Lockport, Illinois. Bew had several suppliers and usually purchased cocaine in amounts ranging from 9 ounces (a quarter kilogram) to a kilogram at a time or, in the jargon of these dealers, a "rim" (as in tires) or a "set of rims." When Bew was transporting cocaine, he brought two "runners" or "mules" with him. The runners would drive a car carrying the drugs and Bew would drive behind them and act as a distraction. If a police officer attempted to stop the runners' car, Bew would deliberately commit traffic offenses so that the officer would stop him, rather than the runners, thus allowing the runners to slip away. If the runners were stopped, the passenger in the car was supposed to throw the cocaine away or jump out of the car and run away with the drugs.
Hatten-Lubick had known Bew since childhood and often purchased large amounts of cocaine from him. When he needed a supply of cocaine, Hatten-Lubick would call Bew, who would call a supplier. Once everyone agreed on the amount of drugs to be purchased and the price, HattenLubick would follow Bew to meet the supplier. Bew tried to prevent Hatten-Lubick from "jumping his back" by dealing directly with the suppliers, thus cutting Bew out of the deal-something that had happened on occasion.
The evidence showed that the arrangement started sometime in 2000. Bew testified that in 2001 and 2002 he brokered five or more deals for Hatten-Lubick with Brent Terry at a Boston Market restaurant in Calumet City. In 2001, Bew brokered deals between Hatten-Lubick and "Nemo" at Park Electronics, a store located at 42nd and Ashland Avenue in Chicago. In 2003, Bew met Alfonso Perez and began conducting transactions with him and brokered deals with him for Hatten-Lubick.
On June 25, 2003, Bew drove his car, closely followed by Hatten-Lubick and Norfleet in Hatten-Lubick's car, to the parking lot of a Subway restaurant in Berwyn. Bew gave Hatten-Lubick's money to Perez in exchange for a kilogram of cocaine. In return for Bew's services in arranging the transaction, Hatten-Lubick paid Bew $1,000.
After that transaction, Bew and Hatten-Lubick discussed their dealings with Perez during a telephone call, which was intercepted by the FBI's wiretaps. Hatten-Lubick expressed his view that Perez should be reducing the price of the cocaine. Bew assured him the price would drop if they continued to buy from Perez.
A few days later, Hatten-Lubick called Bew, in another intercepted conversation, and asked for "the usual," which Bew understood to mean that Hatten-Lubick wanted to purchase a kilogram of cocaine. Bew asked Perez for the cocaine, but he did not have enough on hand to fill the order.
Two days later, though, on July 16, Perez called Bew and asked whether they still wanted the cocaine. Bew, in turn, called Hatten-Lubick and during the call informed Hatten-Lubick that Perez had raised the price. HattenLubick got angry and rejected the deal. But after further discussions, a price was agreed on, and Bew, HattenLubick, and Norfleet drove to Berwyn to purchase the kilogram of cocaine. They met at a Burger King, and Perez told them to follow him to his mother's house.*fn1 They stopped in an alley behind a garage, from which Perez retrieved a Burger King bag that carried, not a double Whopper, but a kilo of cocaine. In exchange for the cocaine, which was given to Hatten-Lubick, Bew gave Perez Hatten-Lubick's money. Bew, Hatten-Lubick, and Norfleet started to drive back to Joliet.
But, of course, because the telephone call making the arrangements for the deal was intercepted, the FBI had the entire operation under surveillance. FBI Special Agent Ron Reddy arranged for an Illinois state trooper, Chad Brody, to be stationed along Interstate 55, the route to Joliet. When Hatten-Lubick drove past Trooper Brody, the FBI instructed the trooper to pull him over. Bew, using his modus operandi, tried to intervene by driving erratically and closely following Hatten-Lubick's car to prevent the trooper from getting behind it. Bew also began to weave back and ...