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United States v. Sewell

United States Court of Appeals, Seventh Circuit

March 13, 2015

BOOKER T. SEWELL, Defendant-Appellant

 Argued September 26, 2014

Page 840

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:11-CR-35 -- Theresa L. Springmann, Judge.

For United States of America, Plaintiff - Appellee: Anthony W. Geller, Attorney, Office of The United States Attorney, Fort Wayne, IN.

For Booker T. Sewell, Defendant - Appellant, Stanley L. Campbell, Attorney, Fort Wayne, IN.

Before FLAUM, MANION, and KANNE, Circuit Judges.


Page 841

Kanne, Circuit Judge.

Following a thirteen-month investigation of a drug-trafficking network that stretched from Mexico to California to Indiana, the United States secured a warrant to search seven homes in Fort Wayne, Indiana. Appellant Booker T. Sewell stayed in one of those homes, located at Sawmill Woods Court.

When a team of federal and local authorities arrived there, they soon discovered,

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among other items, 110 grams of marijuana, cutting agents for cocaine, a drug ledger, multiple scales, $19,900 in cash in the dishwasher, and a loaded revolver. The presentation of this evidence led to Sewell's convictions and sentence, which he now appeals.

Sewell raises four issues. He first argues that the search warrant was issued without probable cause. He next challenges the sufficiency of the evidence to sustain his conviction for being a felon in possession of a firearm. His remaining two challenges concern sentence enhancements applied by the district court.

For the reasons expressed below, we affirm the judgment of the district court on each of the four issues raised by Sewell. In light of our recent decisions in United States v. Thompson, 777 F.3d 368, (7th Cir. Jan. 13, 2015), and United States v. Siegel, 753 F.3d 705 (7th Cir. 2014), however, we vacate Sewell's conditions of supervised release and remand for resentencing.

I. Background

The seeds for this case were first sown in 2010. That year, the FBI Safe Streets Task Force in Fort Wayne, Indiana, commenced an investigation into cocaine trafficking that began with controlled buys of powder and crack cocaine. The investigation ended more than a year later with the arrests of Booker T. Sewell and Silvestre Castaneda,[1] among others.

Sewell, of course, is the appellant in this case. Along with his brothers, Jermorris T. Sewell and Antonio Sewell, Booker Sewell purchased and then sold cocaine and marijuana. Castaneda, on the other hand, served as the major supplier from California. He coordinated the movement of the drugs, largely through commercial shipping companies (by way of sealed soup cans) from California to Indiana. Like Sewell, Castaneda made his business a family affair: Maritza Castaneda, his sister, and Pedro Castaneda Jr., his brother, helped transport the drugs across the country.

On January 27, 2011, the FBI intensified its investigation by implementing court-authorized wiretaps on Castaneda's telephones. Castaneda, like others in the drug trade, used multiple telephones to evade police detection. The FBI's mul-tiple taps thwarted this strategy, recording numerous con-versations between Castaneda, Sewell, and their cohorts.

But Castaneda and Sewell utilized a long-attempted " safeguard" : they spoke in code. For example, Sewell asked Castaneda on one telephone call, " You got the one ?" Castaneda replied, " I don't know, do you have ... the three man?" In another instance, Castaneda told Sewell that he would " call ... for sure when I have the stuff." On another occasion, Castaneda told Sewell that he would soon return from a trip to California. Sewell assured him, " OK, I'll be ready." And Castaneda replied, " I am going to bring some OK?" On yet another occasion, the two delayed their meeting together and waited for the sky to " get[] a little, get kinda dark."

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Real-world events furnished these coded conversations with some context. Two days after Castaneda told Sewell that he was " going to bring some," for example, the Fort Wayne Police Department intercepted three kilograms of co-caine shipped in sealed soup cans from California. In 2010, authorities at a bus station seized $178,530 in cash found in sealed soup cans located in the bag of Castaneda's sister.

Then, on March 12, 2011, authorities observed Castaneda travelling to Sawmill Woods Court, where Sewell's wife, Martine, leased a condo. Authorities believed Sewell stayed at Sawmill Woods Court with his wife, and that he conduct-ed much of his drug business there. Authorities were not certain, however, as the lease listed Sewell's wife as the home's only occupant. Adding to the uncertainty was the fact that, at some point, Martine had secured a protective or-der against her husband.

Sewell hangs his hat on this uncertainty, arguing that the police could not tie him, or any drug activity, for that matter, to Sawmill Woods Court. He also argues that the recorded conversations revealed nothing more than " neutral words," words that in his view failed to establish probable cause. We address these arguments in detail below. Before we do, some additional background is necessary.

A. The Warrant Application

On March 31, 2011, FBI Special Agent (" Agent" ) James Keszei filed a warrant application to search seven homes, including Sewell's suspected home at Sawmill Woods Court. In his accompanying affidavit, Agent Keszei expressly relied on his fifteen years in law enforcement (including six years as a police officer for South Bend, Indiana, and time spent working narcotics and gangs). Specifically, he offered opinions and inferences in his application that, although grounded in the investigation, were informed by his training and experience. All told, Agent Keszei's affidavit spanned sixty-five pages.

The magistrate judge wasted no time. He granted the application and issued the warrant that same day--March 31, 2011.

B. Execution of the Warrant & Subsequent Indictment

Members of the Fort Wayne Police Department, coupled with FBI special agents, executed the warrant on April 13, 2011. When they arrived at the Sawmill Woods Court home, they encountered Sewell downstairs. They read him his rights and gave him a copy of the warrant. Sewell immediately offered damning information: he told the authorities that he kept marijuana in the house along with a significant sum of cash in the dishwasher. Sure enough, the officers found 110.9 grams of marijuana under the kitchen sink and $19,900 in a safe kept in the dishwasher. Another $2,017 was found in a pair of jeans located in the living room.

Sewell further admitted that he kept a gun underneath the bed in the upstairs bedroom. He claimed that his wife did not know anything about the gun, and that it was there for self-defense. " If it wasn't you all running up in here," he offered, " I would be using my gun for my protection, you know what I mean." Sure enough, the officers found a loaded revolver underneath the bed. When the authorities retrieved it, Sewell's wife disclaimed any knowledge of its presence in the home.

Authorities found other inculpatory evidence. They discovered, for example, a ledger with notes that detailed at least one cutting agent for cocaine--" lidocaine." The words " cut coke" were conspicuously jotted next to that note. In a cabinet above the refrigerator, authorities found

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plastic wrapping with cocaine residue, a scale (a second one was found on the refrigerator itself), and a bottle containing 88.9 grams of lidocaine, the cutting agent listed in the ledger. Under the kitchen sink, another cutting agent--inositol--was found. Authorities also discovered telephones that were determined to be the phones from which Sewell called Castaneda.

Later that month, a federal grand jury returned a two-count indictment against Sewell: (1) being a felon in posses-sion of a firearm; and (2) maintaining a place for the purpose of distributing controlled substances (marijuana and co-caine). See 18 U.S.C. § § 922(g)(1), 924(e) and 21 U.S.C. § 856(a)(1), respectively.

C. Trial and Sentencing

Sewell pled not guilty to both counts, and his trial lasted four days. During its case-in-chief, the government called Castaneda as a witness. Castaneda was also arrested in April of 2011, and he testified against Sewell with the expectation that he might obtain some sentencing relief for his cooperation. Castaneda testified that he first met Sewell in 2007 or 2008, and that, over the years, they met more than fifty times to exchange drugs and money. According to Castaneda, several of those meetings ...

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