U.S. v. Baker, 92-3429

• Decision Date: 04 August 1993
• Docket Number: No. 92-3429,92-3429
• Citation: 1 F.3d 596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grazino BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 596

1 F.3d 596

UNITED STATES of America, Plaintiff-Appellee, v. Grazino BAKER, Defendant-Appellant.

No. 92-3429.

United States Court of Appeals Seventh Circuit.

Argued June 4, 1993.

Decided Aug. 4, 1993.

Stephen B. Clark, Asst. U.S. Atty. (argued), Ranley R. Killian, Jr., Gerard B. Schneller, Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

Curtis L. Blood, Collinsville, IL (argued), for defendant-appellant.

Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

In early September, 1990, Keith Davis and Benjamin "Buster" Awousa flew from New York to St. Louis to meet with Grazino Baker. Awousa wanted to evaluate the possibility of distributing cocaine through Baker in the St. Louis area. During this initial visit, Awousa obtained a CyberTel beeper for Baker. At Awousa's behest, Davis returned to St. Louis a second time on September 29. He brought 10 to 14 ounces of cocaine along for Baker to distribute. Baker picked up Davis at the airport and drove him to the Drury Inn of Fairview Heights, Illinois, where Baker had reserved separate rooms on separate floors for himself and Davis.

Because Baker had lined up customers in advance, he and Davis began to weigh and prepare ounce packets of cocaine in Davis's room at the Drury Inn. Baker also took drug orders by beeper during this period. Once three or four orders had been prepared, Baker left to deliver the cocaine. After Baker left, Davis hid the remaining cocaine in the air conditioning unit in his room. According to Davis, he was expected to return $1200 per ounce of cocaine to Awousa in New York. The following morning, Baker turned over approximately $3900 to Davis.

While the two men prepared to leave Davis's room to get breakfast, Baker gave Davis a .38 caliber gun for protection. Baker himself was packing a 9 millimeter pistol. Having been tipped off, the police were staking out the Drury Inn. As the car carrying Baker and Davis left the motel and pulled onto the highway, the police signaled the car to stop. Baker, who was driving, took off, and a high-speed chase ensued. After Baker's car suffered a blow out, Baker fled on foot while the police apprehended Davis. Although Baker escaped arrest at that time, the police did find his identification card, shirt and beeper about one block from the car. Subsequent to Davis's arrest, the police searched the two rooms at the Drury Inn. They recovered $3900 in cash, 262.2 grams of cocaine in the air conditioner, and an additional 8.2 grams elsewhere in the room. At the time of this search, Baker's companion Bernette Johnston was spotted leaving Baker's room at the Drury Inn with a bag of his belongings. Among his possessions, the police recovered approximately $1000 that she had attempted to remove from Baker's motel room.

A jury found Baker guilty of conspiracy to possess with intent to distribute. Following the trial, Baker unsuccessfully moved for a new trial on the basis of newly discovered evidence. After being sentenced, he brought this appeal.

In his first argument, Baker maintains that at most the government proved a buyer-seller relationship, which falls short of showing a conspiracy to distribute. See United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir.1991). After wrestling with the question of what constitutes sufficient evidence of a conspiracy to distribute, this court has embraced a standard requiring "proof of an agreement to commit a crime other than the crime that consists of the sale itself," United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.1993) (en banc) (plurality opinion). In other words, there must be facts in evidence in addition to a sale for resale from which proof of a conspiracy to distribute can be inferred. See generally United States v. Goines, 988 F.2d 750, 759 (7th Cir.1993) (evidence of cooperation and mutual benefit); United States v. Saunders, 973 F.2d 1354, 1360 (7th Cir.1992) (single consignment transaction is evidence of conspiracy), cert. denied, --- U.S. ----, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993); United States v. Blankenship, 970 F.2d 283, 286-89 (7th Cir.1992) (discussing "line of demarcation" between sale and conspiracy). A number of such facts are present here. As the circumstances surrounding this case demonstrate, Baker contemplated more than a single buy-sell transaction with Davis (and his supplier Awousa). For example, after Baker received orders via his pager, Davis fronted the cocaine to Baker, who later returned with money from his customers. This sort of credit transaction is strong evidence of membership in a conspiracy. See Blankenship, 970 F.2d at 287. Moreover, the fact that this deal happened to be their first does not undermine numerous other indicia that further deals were contemplated by these men. Accordingly, viewing the abundant evidence in the light most favorable to the government reasonably leads to the inference that Baker had agreed to and prepared for ongoing cocaine distribution with Davis and Awousa.

Baker also contends that the government failed to verify testimony of Davis regarding the actual registration of the pager. After the trial, defense counsel discovered that the pager Baker had been using at the Drury Inn was registered in the name of his father, not Awousa. Before sentencing, Baker moved unsuccessfully for a new trial on the basis of this newly discovered evidence. During its investigation, the government served a subpoena on CyberTel in order to obtain information...