The opinion of the court was delivered by: Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
On March 26, 2009, following a five-week trial, a jury found defendants Rondell Freeman, Brian Wilbourn, Daniel Hill, and Adam Sanders ("defendants") guilty of conspiracy to distribute and possess a controlled substance, namely cocaine, crack cocaine, heroin, and marijuana, beginning in or around 1998 and continuing until in or around December 2007 (Count 1). (Dkt. #620, #622, #624, #626.) The jury also convicted defendants of various other drug-related offenses. On August 26, 2009, this court granted defendants a new trial on Count 1, and on two possession with intent to deliver counts (Count 10 for Wilbourn, and Count 11 for Wilbourn and Freeman). United States v. Freeman, No. 07 CR 843, 2009 WL 2748483 (N.D. Ill. Aug. 26, 2009) ("Freeman I"), aff'd United States v. Freeman, 650 F.3d 673 (7th Cir. 2011) ("Freeman II"). Rather than pursue a new trial against defendants on Count 1, the government chose to proceed to sentencing on the remaining counts of conviction.*fn1 The basis for the new trial on Count 1 was this court's finding that the principal witness for the government testified falsely as to essential facts necessary for conviction of conspiracy between Freeman and Wilbourn, under circumstances in which the government knew or should have known, and the false testimony affected the verdict. The evidence of conspiracy adduced at trial rises again in the context of determining the base offense level applicable to each defendant's recommended sentencing range under the United States Sentencing Guidelines.
The government now contends that the court may consider evidence introduced at trial in support of the conspiracy charged in Count 1 when sentencing defendants on their counts of conviction. This evidence, argues the government, is admissible as "relevant conduct" under U.S.S.G. § 1B1.3. Defendants object on multiple grounds. To resolve the issue, the court held a series of evidentiary hearings, one for each defendant.*fn2 In the opinion that follows, the court sets forth the nature and extent of the relevant conduct it will consider when sentencing each defendant.
The sentencing guidelines require a defendant's base offense level to reflect the quantity of drugs for which he is accountable. United States v. Zehm, 217 F.3d 506, 511 (7th Cir. 2000). Section 1B1.3 states that where the guideline specifies more than one base offense level, the base offense level shall be determined on the basis of the defendant's relevant conduct, which includes the following:
[(a)](1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or wilfully caused by the defendant; and
[(a)(1)](B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
[(a)](2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions
(1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;
[a](3) all harm that resulted from the acts and omissions specified in subsections
(a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and
[a](4) any other information specified in the applicable guideline.
U.S.S.G. § 1B1.3.*fn3 Section 3D1.2(d) requires grouping of multiple counts when, inter alia, "the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm." U.S.S.G. § 3D1.2(d). Section 1B1.3(a)(2) and § 3D1.2(d) "read together, provide that a district court must increase a defendant's base offense level to account for 'relevant conduct,' which includes drugs from any acts that 'were part of the same course of conduct or common scheme or plan' as the convicted offense, regardless of whether the defendant was charged with or convicted of carrying out those acts." United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991); see United States v. Acosta, 85 F.3d 275, 279 (7th Cir. 1996). Moreover, as explained by the guidelines commentary, § 1B1.3(a)(2) "merely incorporates by reference the types of offenses set forth in § 3D1.2(d)" and application of this provision "does not require the defendant, in fact, to have been convicted of multiple counts." U.S.S.G. § 1B1.3(a)(2), Application Note 3; cf. Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 123 L. Ed. 2d 598 (1993) (guidelines commentary is authoritative) (cited with approval in Freeman v. United States, 131 S. Ct. 2685, 2692, 180 L. Ed. 2d 519 (2011)).
In demonstrating relevant conduct under § 1B1.3(a)(2), "the government's burden of proof is twofold: it must first prove by a preponderance of the evidence that the uncharged conduct bore the necessary relation to the offense of conviction, it must then establish the quantity of drugs involvedin that conduct, also by a preponderance of the evidence." Acosta, 85 F.3d at 279 (internal citation omitted). Under § 1B1.3, uncharged conduct bears the necessary relation to the offense of conviction if it is part of a common scheme or plan or the same course of conduct. U.S.S.G. § 1B1.3(a)(2). If this test is met, the court must then determine (1) the scope of the criminal activity that the defendant agreed to jointly undertake, and (2) whether the conduct of others was both in furtherance of that activity and reasonably foreseeable to the defendant. United States v. Stadfeld, 689 F.3d 705, 713 n.2 (7th Cir. 2012). The Seventh Circuit reviews the district court's factual findings under § 1B1.3 for clear error. United States v. Cedano-Rojes, 999 F.2d 1175, 1179 (7th Cir. 1993).
The factual background of this case was recounted by the Seventh Circuit in Freeman II, 650 F.3d at 675--678, and will only be discussed here as necessary to resolve the pending issue. Throughout this case, the government has maintained that Freeman was the leader of a conspiracy (the "Freeman drug trafficking organization" or the "Freeman DTO") that controlled the sale of cocaine, crack cocaine, heroin, and marijuana in and around the now-demolished Cabrini-Green public housing complex in Chicago, Illinois beginning in or around 1998 and continuing until in or around December 2007 when the defendants were arrested in connection with this case. The government argues that the Freeman DTO sold these drugs 24 hours a day, 7 days a week. As such, the government estimates that the conspiracy sold somewhere between 1.176 and 2.25 kilograms of crack cocaine per week and that, over the course of the conspiracy, it sold 8.4 kilograms or more of cocaine base in the form of crack cocaine, 150 kilograms or more of cocaine, 30 kilograms or more of heroin,*fn4 and a measurable quantity of marijuana. (Gov't Version 10/11/11 at 55 n.11.)*fn5
The government argues that defendants Wilbourn, Sanders and Hill helped Freeman manage his drug trafficking organization. According to the government, Freeman and Wilbourn used Freeman's condominium at 5740 N. Sheridan Road ("the Sheridan Shores condo") to prepare and package drugs; and Hill, Wilbourn and Sanders supervised drug sales at particular buildings in the Cabrini-Green complex including 714 W. Division Street ("the 714 Division building") and 1230 N. Burling Avenue ("the 1230 Burling building"). The government also argues that defendants Wilbourn, Sanders and Hill operated as sellers, pushing $5 and $10 baggies of crack cocaine, heroin and marijuana on the street.
At trial, Wilbourn and Hill acknowledged that they sold drugs but
denied that they worked for Freeman, arguing that each had his own
drug business that serviced customers at Cabrini-Green.*fn6
Testimony at trial alsoestablished that Freeman and those
working for him frequently sold drugs in baggies with a blue devil
logo on them. Drugs in other types of baggies,
such as orange stripe, lady bug, and ice cream, were also sold at
Cabrini-Green. The orange stripe baggies were Wilbourn's brand of
At the evidentiary hearings, the government presented evidence purportedly linking each defendant to the Freeman DTO and argued that each defendant should be accountable under § 1B1.3 for the entire amount of drugs sold by the Freeman DTO during the course of the conspiracy. The government has excluded the testimony of Senecca Williams*fn7 and the proffer statements of Darnell Williams and Lonnie Mack.*fn8 The following is a summary of the evidence related to each defendant's count(s) of conviction and his alleged involvement in the Freeman DTO.
Freeman was convicted of knowingly possessing with intent to distribute mixtures containing heroin in violation of 21 U.S.C. § 841(a)(1) (Count 3); use of telephone to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b) (Counts 4, 5, 16--18);possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (Count 6); and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 8). Proof of Counts 3, 4, 5, 6 and 8 rested on audio/video surveillance recordings made on March 25, 2006. Count 3 stems from an incident where Freeman is seen preparing and packaging heroin with Wilbourn at the Sheridan Shores condo. That same day, Freeman can be heard using the speaker function of his phone to discuss the collection of "envelopes" (drug proceeds) with Wilbourn, the basis of Count 4. (See 3/25/06 Video Tr. 1, Clip 1.)*fn9 Later, Freeman is again heard using the speaker function of his phone to discuss with Robert Freeman*fn10 procuring a gun, the basis of Count 5. (See 3/25/06 Video Tr. 7, Clip 2.)*fn11 For Counts 6 and 8, Freeman can be seen receiving a pistol from Robert Freeman at the Sheridan Shores condo.*fn12
Counts 16 through 18 were proved through conversations recorded pursuant to a court-authorized wiretap on Freeman's phone on August 9, 2006. These counts stem from phone discussions between Freeman and alleged co-conspirator Syble McClutchey*fn13 where the two discuss the seizure of drug money by the police. (See Calls #5609, #5611, #5615; Tr. 1235; 1265.)
B. Involvement with the Freeman DTO
At the evidentiary hearing, the government presented a summary of its evidence against Freeman, which included but was not limited to (1) numerous seizures of narcotics, proceeds from drug sales, guns and drug-related evidence from Freeman and other members of the alleged conspiracy; (2) multiple court-authorized audio/video recordings depicting Freeman and others cooking and packaging crack cocaine and heroin, purchasing firearms, collecting and counting drug proceeds, and discussing the distribution of drugs; (3) agent testimony regarding visual surveillance and stops of alleged co-conspirators; (4) recorded phone conversations intercepted pursuant to court-authorized wiretaps and recordings from the Illinois Department of Corrections ("IDOC"); (5) drug ledgers and packaging recovered from 18 trash pulls outside the Sheridan Shores condo; and (6) testimony from alleged co-cooperators Ralph LaSalle and Demarquis Williams concerning the nature and scope of the alleged conspiracy. Given the breadth of the evidence presented, the court will not recount it in detail here and instead refers the reader to the government's response at docket number 1089, which succinctly summarizes the evidence presented against Freeman.
Throughout the sentencing process, Freeman has maintained that prosecutorial misconduct and the lack of a retrial barred the court from relying on facts related to the alleged conspiracy in determining his relevant conduct under § 1B1.3. Freeman argues that prosecutorial misconduct is akin to police misconduct, which bars all evidence considered "fruit of the poisonous tree," and as such, his base offense level should be determined solely on the drug quantities contained in his counts of conviction. At the evidentiary hearing, Freeman challenged nearly every piece of the government's evidence arguing that the government's witnesses were unreliable, biased, and/or provided vague, uncorroborated testimony concerning the nature and scope of his drug activities. Freeman also provided alternative, licit explanations for his conversations and actions and highlighted the fact that specific drug amounts, dates and times were difficult, if not impossible, to determine based on the audio/video/phone recordings and the testimony of witnesses. (See Dkt. #1158 & #1160.)
Wilbourn was convicted of knowingly possessing with intent to distribute mixtures containing heroin in violation of 21 U.S.C. § 841(a)(1) (Count 3); use of a telephone to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b) (Count 4); possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (Count 7); and knowingly possessing with intent to distribute 5 grams or more of mixtures containing a controlled substance in violation of 21 U.S.C. § 841(a)(1) (Counts 12 and 13). Evidence of Counts 3 and 7 was audio/video surveillance (briefly recounted in the facts below). The evidentiary basis of Count 4 is recounted in Background, Part I.A., supra.
Counts 12 and 13 stem from an incident that occurred in the late evening and early morning hours of April 10 and 11, 2006. The government's evidence showed that law enforcement on April 10, 2006 observed Wilbourn and his girlfriend Raven Ramclam entering the Sheridan Shores condo where Freeman and Wilbourn were known to prepare and package drugs. (Video 4/10/06.) Ramclam testified that once the two were inside the condo, Wilbourn poured two powdery substances onto the living room table and mixed them together. He then used a small spoon to scoop the powder into baggies. (Tr. 933--36.) Shortly after midnight on April 11, 2006, Wilbourn and Ramclam left the condo, entered Ramclam's SUV, and drove to Lake Shore Drive where they were pulled over by authorities. (Video 4/11/06; Tr. 941--42.) Wilbourn exited the passenger side of the car and attempted to flee. (Tr. 942--47; 1000.) In the process, he discarded a clear plastic package, which was recovered by authorities and found to contain 48.3 grams of crack cocaine and 23.4 grams of heroin packed in orange stripe baggies. (Tr. 1000--03; 2544--45.)
B. Involvement with the Freeman DTO
At the evidentiary hearing, the government presented a chronological narrative of Wilbourn's alleged involvement in the conspiracy. Some of this evidence is summarized below:*fn14
* 1998 and 1999: Demarquis Williams testified that Freeman and Wilbourn were "on the count" at the 714 Division building, meaning they were "with an organization with a group of people that's running the operation in that building . . . a drug operation." (Tr. 1758--60.) Williams also testified that Wilbourn delivered drugs to him on Freeman's behalf "three or four times," once in late 2005, and that "two time[s]" Williams paid Wilbourn for drugs supplied by Freeman. (Tr. 1796--99; 1838--39.)
* November 16, 2000: Police seize 1 gram of crack cocaine and $691 in cash from Wilbourn after he tries to flush the drugs down the toilet in an apartment at the 714 Division building. (Tr. 1721--24; 1733; 2554.)
* March 11, 2002: Police seize a bag containing 352 baggies labeled with the blue devil logo containing 38.6 grams of crack cocaine, .3 grams of heroin, and 23.8 grams of marijuana after seeing Wilbourn push the bag down the mail slot in the lobby of the 1230 Burling building. (Tr. 1735--40; 1750; 2551--52.)
* October 30, 2003: IDOC records a telephone conversation between Sanders and Wilbourn, who is in custody. Wilbourn urges Sanders to "step up" and take his "slot" while he is in prison and complains about the lack of supervision over drug sales at the 1230 Burling building. (Gov't Ex. IDOC 10/30/03; Tr. 2298--2303.)
* January 13, 2004: IDOC records a telephone conversation between Hill, Sanders, and Wilbourn in which Hill tells Wilbourn that police "kicked in the door on us" but did not find drugs or money. Wilbourn reminds them not to keep narcotics where they live. (Gov't Ex. IDOC 1/13/04.)
* October 8, 2005: ATF agents recover a kilo wrapper and pyrex glass with cocaine residue from a trash pull outside the Sheridan Shores condo after seeing Senecca Williams throw a bag in the dumpster upon exiting the building with Wilbourn and Freeman. (Tr. 541--42; 2548--49.)
* March and April 2006: Wilbourn is captured on audio/video surveillance made from inside the Sheridan Shores condo (1) manufacturing and packaging heroin with Freeman;*fn15 (2) paying Freeman $1,000 in cash and requesting that Freeman front him drugs, which Freeman declines to do;*fn16 (3) handling a gun purchased by Freeman;*fn17 and (4) cooking and packaging crack cocaine with Freeman and others. (Tr. 757--58; 815--20; 824--33; 857; Videos 3/25/06, 3/29/06; 4/1/06.)*fn18
* May 3, 2006: Wilbourn and Freeman are seen exiting the Sheridan Shores condo and Wilbourn throws a trash bag into the dumpster. This bag is found to contain clear plastic bags with cocaine residue, latex gloves, and a drug ledger. (Tr. 575--78; 2544.)
* October 22, 2006 through November 1, 2006: The government records multiple telephone conversations between Freeman and Wilbourn, and later Freeman, Sanders, and Wilbourn, pursuant to a court-authorized wiretap. These phone conversations are summarized in the government's response to Wilbourn's sentencing memorandum and will not be recounted here. (See Dkt. #1087 at 4--6.) In these calls, Wilbourn can be heard discussing the collection of money, the manufacture and distribution of drugs, the rate of drug sales at the 1230 Burling building and police presence in the area.*fn19
* November 13, 2006: Police seize 77.6 grams of crack cocaine from Sanders packaged in blue devil and orange stripe baggies after observing Sanders lean into a car registered to Wilbourn's mother, containing three males, one of whom resembled Wilbourn. This interaction occurred shortly after Wilbourn left the Sheridan Shores condo. (See Background, Part III.A., infra.)
* May 24, 2007: Agents execute a search warrant at the Sheridan Shores condo and seize, among other items, plastic baggies with the blue devil and orange stripe logos on them. (Tr. 783; 792--93; 899.)
Wilbourn challenges the government's evidence point by point*fn20 arguing that, although he was friends with Freeman, he operated his own independent drug business and was not a member of the Freeman DTO. Wilbourn admits using the Sheridan Shores condo to prepare and package drugs but argues that he dealt his own brand of drugs, orange stripe, and did not work for Freeman. Wilbourn also argues that (1) Demarquis Williams provided conflicting testimony regarding the scope of Wilbourn's involvement in the conspiracy; (2) the surveillance evidence demonstrates that Wilbourn operated independently of Freeman; and (3) Wilbourn and Freeman worked together in a number of business ventures unrelated to drugs, which explains their frequent interactions.
Wilbourn first argues that Demarquis Williams provided conflicting testimony at trial. For example, Demarquis testified that, as far as he knew, Wilbourn was not Freeman's drug deliveryman, did not work for Freeman, and was allowed to sell drugs in the 1230 Burling building because he was friends with Freeman. (Tr. 1841, 1843--44.) Williams testified that when he was working for Freeman, he would not check in with Wilbourn, and that he saw Wilbourn deliver drugs to Sanders, who sold them and returned the proceeds to Wilbourn, not Freeman. (Tr. 1842.) This testimony supports Wilbourn's position that he operated an independent drug business.
Wilbourn next argues that the surveillance videos never showed him preparing, packaging, or selling Freeman's drugs and that the one time he attempted to buy drugs from Freeman he was rebuffed. This fact, argues Wilbourn, demonstrates that he and Freeman had a classic "buyer-seller relationship" and that he was not a member of the conspiracy. (See Tr. 825; 830--31.) Wilbourn also notes that his name did not appear on any of the drug ledgers recovered by authorities. (See Tr. 671--72; 1668.)*fn21
As to his third point, Wilbourn argues that a number of legitimate business ventures explain his close ties to Freeman. Ramclam, for example, testified that Wilbourn and Freeman organized events every Friday and Saturday night at the Kompel Club at 51st and Prairie in Chicago. (Tr. 963--64.) Demarquis Williams also testified to this fact. (Tr. 1844--45.) In addition, Ramclam testified that Wilbourn worked at the Lick City Car Wash at 87th and Loomis just about everyday from the spring of 2006 through the end of 2006. Freeman owned this car wash. (Tr. 964--66.)*fn22 Finally, Wilbourn states that he was incarcerated from April 23, 2002 through September 8, 2005 and was not involved in the drug trade during this time. (Tr. 2509--10.) ...