United States District Court, N.D. Illinois
FREDERICK J. KAPALA, District Judge.
Defendant's motion to lift the stay of proceedings  is granted. Defendant's supplemental motion for new trial  and motion for mistrial and to dismiss indictment  are denied. The parties are directed to contact the courtroom deputy to schedule a sentencing hearing.
After a June 2012 jury trial, defendant, Robert Presley (a.k.a. "Munchie" or "Big Munchie"), and his co-defendants, Steven McDowell and Jeremy Cooper (a.k.a. "J.D."), were found guilty of conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Presley was also found guilty of possessing firearms after having previously been convicted of a felony in violation of 18 U.S.C. § 922(g), and of possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(a). Two other co-defendants, Murray Harris and Norman Breedlove, pled guilty to the heroin conspiracy charge prior to the trial, each admitting that he conspired with his co-defendants to distribute more than a kilogram of heroin. Yet another co-defendant, Melvin Jordan, was acquitted by the jury. Before the court are Presley's motion to lift the stay of proceedings, his supplemental motion for a new trial, and his motion for mistrial and for dismissal of the indictment with prejudice. For the following reasons, the motion to lift the stay is granted and the other two motions are denied.
On May 24, 2012, Breedlove pled guilty to the heroin conspiracy charge and to possessing a firearm in furtherance of a drug trafficking crime pursuant to a plea agreement governed by Federal Rule of Criminal Procedure 11(c)(1)(C). Under the terms of the plea agreement, Breedlove agreed to provide complete and truthful testimony in any criminal proceeding in which he was called upon to cooperate. The government, in turn, agreed to move for a departure from the applicable guidelines range and statutory minimum sentence of twenty-five years and to recommend a sentence of ten years if it determined that Breedlove complied with his cooperation agreement. Breedlove also agreed to postpone his sentencing until his cooperation was concluded. The court accepted Breedlove's guilty plea, finding it knowing and voluntary, and scheduled Breedlove's sentencing hearing for August 24, 2012.
The jury heard the case on June 4 through June 14, 2012. In addition to Breedlove's testimony implicating his co-defendants in the heroin conspiracy, the government presented other testimony establishing the existence of a heroin conspiracy and Presley's participation in the conspiracy. Detective Gabe Wassner testified to nine controlled purchases of heroin from McDowell or Harris between August 24 and December 8, 2010. These purchases were arranged by Detective Wassner and McDowell in recorded telephone conversations which were played for the jury. Detective Wassner also made controlled purchases of heroin from Breedlove, who worked for McDowell.
McDowell's mother, Donia McDowell, testified that she lived in an apartment at 501 Longwood Avenue, Rockford, Illinois. Donia ultimately made an in-court identification of Presley, whom she knew as Munchie, but denied making a plethora of statements to law enforcement agents on December 2, 2012, indicating that McDowell, Presley, Cooper, and Harris were engaged in a heroin distribution conspiracy. Donia also denied, or said she could not recall, making similar statements while under oath before the grand jury. The court admitted as substantive evidence Donia's grand jury testimony in which she stated that Presley and Cooper sold heroin from a green rental car parked near 501 Longwood and that they were partners with Harris and McDowell, the latter being the financier of the operation. During her grand jury testimony, Donia also indicated that on December 1, 2010, there was a shootout at 501 Longwood during which she saw Presley with a handgun and Cooper with a long gun.
Vaughn Johnson lived in another apartment at 501 Longwood and made an in-court identification of Presley, Cooper, and McDowell. Johnson denied knowing anything about Presley, Cooper, and McDowell selling drugs but acknowledged that he probably said so in his grand jury testimony. Johnson testified at trial that he saw Presley and Cooper with guns on the night of the shootout.
Rodney Love testified that in November 2010 he would regularly visit Vaughn Johnson at his apartment at 501 Longwood. Love testified that McDowell, Presley, and Cooper were engaged in a heroin business at 501 Longwood and he identified them in court. Love observed heroin being packaged in Donia McDowell's apartment and at one point he saw Donia get upset with Presley and Cooper and tell them to leave her apartment. Love was present at 501 Longwood on the night of the shootout and saw Presley with a handgun and Cooper with a long gun. According to Love, the shooting was due to a dispute over some guns between Fred White, on the one hand, and Presley and Cooper on the other.
Other evidence showed that a search warrant executed in October 2010 at 1209 Chestnut Street, Rockford, which Frank and Paul Freeman rented to Presley for $100 per month to sell heroin, led to the recovery of quantities of heroin and a loaded 9mm Smith & Wesson handgun. According to Frank Freeman, Presley approached him about renting the house to sell heroin about nine or ten days before the search warrant was served. Freeman testified that Presley personally paid Freeman the rent and that Cooper was Presley's right hand man. Documents with McDowell's, Presley's, and Cooper's name on them were recovered from a black Dodge Charger with Illinois registration number K96 5924 located at that address including the rental agreement for that vehicle in McDowell's name.
Heroin addict Charles Dixon testified that on three occasions Presley gave him free samples of heroin while outside of 501 Longwood. Later, Presley asked Dixon how he liked the heroin.
Detra White identified Presley and Cooper and testified that she bought drugs at 501 Longwood from Cooper, who she knew as J.D. A couple days before the shootout, Detra retrieved a handgun from her garage and brought it to 501 Longwood where she handed it to Cooper who in exchange gave her $80 and $20 worth of crack cocaine. Later that night, Presley and Cooper drove Detra to her garage where she retrieved a rifle. Detra brought it back to the car and Presley grabbed the rifle. In exchange for the rifle, Cooper gave Detra $30 worth of crack and $6 in cash.
Officers described their use of confidential informant Nicholas Real to purchase heroin from Cooper at 501 Longwood on November 24, 2010 and November 29, 2010. On each occasion, Real purchased three $20 bags of heroin. The bags also contained a Dormin pill, a common mixing agent that is packaged with heroin. On the latter date, Cooper arrived at 501 Longwood in a dark green Toyota Camry with Florida registration number 509 LAP. Officers also testified that on numerous occasions during the course of their investigation they observed Presley and McDowell on the premises at 501 Longwood. Detective Berg of the Winnebago County Sheriff's Department described a controlled purchase of heroin that Nick Real made from Presley and Cooper on December 2, 2010, in a Wal-Mart parking lot. Cooper and Presley arrived at Wal-Mart in the green Toyota Camry with Florida registration number 509 LAP. Real got into the Camry and then emerged with three bags of heroin that he purchased for $60. Real testified at trial and also described the three controlled purchases of heroin from Cooper and indicated that there was an African-American male passenger in the front seat of the Camry that Cooper was driving on December 2, 2010, but he did not get a good look at him. FBI Special Agent Craig Smith testified that Presley was present with Cooper.
On December 2, 2010, Presley and Cooper were arrested in a green Toyota Camry with Florida registration number 509 LAP in the parking lot of the Studio Plus Hotel. Cooper was driving, Presley was the front-seat passenger and Wendell Haywood was in the backseat. Inside the green Toyota, police found a loaded.45 caliber Glock handgun on the floorboard behind Presley's seat and three small knotted baggie corners containing heroin. A forensic firearms examiner determined that the.45 caliber shell casings recovered from inside 501 Longwood after the December 1, 2010 shootout came from the.45 caliber Glock recovered from the floorboard of the green Toyota behind Presley's seat.
The Studio Plus Hotel manager testified that Kelly Coleman was registered to room 221 and Presley was registered to room 312. The rooms were paid for in cash on a daily basis by Coleman, Cooper, or Presley, but most often by Presley. Police searched room 221, which was occupied by Kelly Coleman and her three children, and located: $1027 in cash, 0.4 grams of heroin, 12 individually packaged baggies of heroin, a camera, an insurance identification card in Steve McDowell's name, a.40 caliber Taurus handgun, and the magazine for a.45 caliber Glock handgun. Various photographs and videos were recovered from Coleman's digital camera showing large sums of cash in room 221 and Coleman, Cooper, and others in and around the black Dodge Charger with Illinois registration K96 5924. A search of Presley's room revealed an AK-47 rifle, the loaded magazine for that rifle, bottles of lactose, two magic bullet grinders, a razor blade, a box of sandwich bags, latex gloves, a digital scale, the box from a bottle of Dormin pills, $620 U.S. currency, Western Union receipts in Presley's name, and DUI court paperwork in Presley's name indicating that Presley was driving a 2010 black Dodge Charger with registration number K96 5924 when he was arrested on November 5, 2010.
Kelly Coleman testified that Cooper is the father of her three children and Presley is Cooper's friend. Coleman said she came out to Rockford from Chicago in October 2010 to seek low income housing which she heard was cheaper in Rockford than in Chicago. They stayed in the Studio Plus Hotel and Presley paid for their rooms with cash. Coleman claimed that she did not know anything about Presley and Cooper selling heroin or where all the money came from that is being handled on the video and photographs recovered from her camera. When confronted with her grand jury testimony, during which she testified that Cooper was selling drugs for Presley, Coleman said she did not remember giving that testimony. Coleman's grand jury testimony was admitted at trial as substantive evidence. Coleman testified that Presley put the handgun and the heroin in room 221 which the police recovered.
Murray Harris' former girlfriend, Alycia Binion, testified that during the week before December 8, 2010, she had a telephone conversation with Harris. Harris told Alycia that Munchie, one of Harris' guys, got locked up. Alycia said she met Munchie once and identified Presley as Munchie in open court.
McDowell testified on his own behalf and denied being in a heroin distribution conspiracy with Presley and Cooper. Instead, McDowell admitted to delivering heroin on six different occasions between April 2010 and December 8, 2010, but claimed that he was working only with his brother Harris. McDowell said that he turned the heroin operation over to Harris at the end of June 2010. McDowell testified that he met Presley and Cooper in August 2010 when he went to the Longwood residence and Presley and Cooper were there with Harris. McDowell explained that he would check on his mother at the Longwood residence once a day and saw Presley and Cooper there sitting in a car three or four times a week.
Melvin Jordan also testified on his own behalf and denied being the heroin conspiracy's "tester." However, he admitted that he is a heroin addict and in the summer of 2010 he bought his heroin at 501 Longwood from Harris and McDowell. Jordan also acknowledged that in an interview prior to his arrest, he told Agent Smith that he also bought heroin from a ...