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United States v. Gilmer

July 18, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ANTHONY GILMER AND JAMAR BAILEY, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 8-Milton I. Shadur, Judge.

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

ARGUED MAY 7, 2008

Before BAUER, POSNER and WILLIAMS, Circuit Judges.

Anthony Gilmer and Jamar Bailey were indicted on two counts of conspiracy and drug possession charges in March 2005. Following a bench trial, the district court found Gilmer and Bailey guilty and sentenced them to 57 months' and 100 months' imprisonment respectively. On appeal, both raise several challenges to their convictions. For the following reasons, we affirm.

I. BACKGROUND

In December of 2004, a confidential informant reached out to Untavious Davenport to see if he had a kilogram of heroin to sell. On December 21, an undercover DEA agent met with Davenport and the informant to negotiate the sale. Davenport agreed to sell the undercover agent the kilo for $102,000; a week later, Davenport asked his friend Cleon Wilson about obtaining a kilo of heroin. Wilson located a supplier named Jamar Bailey-a friend of Wilson's-and informed Davenport of the connection.

On January 3, 2005, while DEA agents conducted surveillance, the informant picked up Davenport in a black Escalade and drove to a parking lot of Cermak Mall in Chicago, where they were joined by the undercover agent to wait for the drugs. After Davenport spoke with Wilson on the telephone, he and the informant drove to Wilson's house to check on the status of the heroin. Bailey arrived a short time later, and Wilson introduced Daven-port to Bailey. Bailey told Wilson he would get the kilo of heroin from "out west" and left the house.

Wilson, Davenport, and the informant left Wilson's house around 5:00 p.m. Later, Bailey called Wilson and told him that he had the kilo of heroin and that Wilson should meet him to consummate the deal. They agreed to meet at a laundromat parking lot at Cermak and Cicero Avenues. The Escalade parked across the street from the laundromat in an Aldi's parking lot.

Meanwhile, Bailey had called Gilmer looking for a kilogram of heroin, and Gilmer told Bailey that he would broker the deal. Gilmer approached Romeal Williams, an acquaintance who had supplied heroin to Gilmer in the past, to see if he could supply one quarter to one half kilogram of heroin. Williams called his source, but only asked for 100 grams because he did not trust Gilmer. Williams obtained (what he thought was) 100 grams of heroin and called Gilmer. Gilmer told Williams to meet at the street corner of Jackson and Kostner; when Williams arrived, Gilmer and Bailey were waiting. As the three rode around in Williams' white Chevrolet Lumina, Williams showed the drugs to Gilmer. When the two vehicles arrived at Aldi's, Gilmer told Bailey to tell the occupants in the Escalade to meet them at a nearby Citgo station. Bailey got out of the Lumina and into the Escalade, with Wilson, Davenport, and the informant, and he relayed the information to rendezvous at the Citgo.

Once both vehicles arrived at the Citgo, the informant walked over to the Lumina and got inside. Williams handed him the heroin, but the informant noticed the package was not a kilogram as requested. He asked Williams whether it was a sample and handed the heroin back to Williams. At that time, DEA agents approached the Lumina and identified themselves. Davenport, Wilson and Bailey were immediately arrested; Gilmer and Williams ran but were promptly apprehended by the agents. At the time of his arrest, Williams possessed one bag containing two smaller bags of heroin and cocaine base.

Bailey, Gilmer, Williams, Davenport, and Wilson were each indicted on one count of conspiracy to possess with intent to distribute at least 100 grams of mixtures containing heroin, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute approximately 83 grams of mixtures containing heroin and 13.3 grams of mixtures containing cocaine base, in violation of 21 U.S.C. § 841 (a)(1). Williams, Davenport and Wilson pleaded guilty to the conspiracy count and testified against Gilmer and Bailey at trial. Other evidence introduced at trial included records of phone calls made between Wilson and Bailey, and between Bailey and Gilmer; testimony from several DEA agents who conducted surveillance on that day; and Bailey and Gilmer's post-arrest statements, in which both defendants acknowledged that one kilogram of heroin was to be purchased. Bailey stated that Wilson knew someone who wanted a kilo, and that he "was along for the ride to make $200." Gilmer told the agents that Bailey called him looking to buy a kilo of heroin, and that he was the middleman who introduced Williams and Bailey.

The district court found Bailey and Gilmer guilty of both counts on January 10, 2006. The court credited the testimony of the DEA agents, as well as the testimony of the cooperating co-conspirators (with the exception of their conflicting testimony about the timing of events that day). The court also considered Bailey's post-arrest admissions only as to Bailey, and not to Gilmer, so as to avoid a Bruton problem. In finding that Bailey and Gilmer were guilty of the conspiracy charge, the court specifically held that Gilmer's conduct was inconsistent with mere presence at the scene of the conspiracy, finding that his actions and his admissions established him as a co-conspirator. As for the possession charge, the court found both defendants guilty under the Pinker-ton theory of liability. The court analogized the conspiracy to a chain, each conspirator representing a link in a chain, with each link knowing at least one co-conspirator, but not always more than one. The court discussed Gilmer's role as the link between Bailey and Williams, and that Williams's testimony linked him to the chain of the conspiracy. During sentencing, the court found that although Williams believed he was selling 100 grams of heroin, that belief did not equate to an agreement under the conspiracy theory. The court said that it would consider the 83.3 grams of heroin for sentencing purposes, but not the 13.3 grams of crack cocaine, because there was no evidence that any co-conspirator had agreed to or contemplated the purchase of crack. Bailey and Gilmer each filed motions for judgment of acquittal, which the court denied on February 7, 2006. These timely appeals followed.

II. DISCUSSION

Gilmer and Bailey challenge the denial of their post-trial motions, arguing that the evidence presented at trial was insufficient to convict either of them on charges of conspiracy to distribute drugs. They also believe that the government failed to prove the quantity of drugs alleged in their indictments. Additionally, Gilmer argues that the government violated the Speedy Trial Act, and that the district court ...


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