U.S. v. Pearson, s. 95-3204

• Decision Date: 17 June 1997
• Docket Number: 95-3211,Nos. 95-3204,s. 95-3204
• Citation: 113 F.3d 758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J.W. PEARSON, a/k/a David Porter, and Gregory P. Scott, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 758

113 F.3d 758

UNITED STATES of America, Plaintiff-Appellee, v. J.W. PEARSON, a/k/a David Porter, and Gregory P. Scott Defendants-Appellants.

Nos. 95-3204, 95-3211.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1997.

Decided May 14, 1997.

Rehearing Denied June 17, 1997.

David E. Risley (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee in Nos. 95-3204, 95-3211.

Robert H. Aronson (argued), Chicago, IL, for Defendant-Appellant in No. 95-3204.

Roy P. Amatore, Chicago, IL, Kevin E. Milner, Palatine, IL, for Defendant-Appellant in No. 95-3211.

Before POSNER, Chief Judge, and ESCHBACH and MANION, Circuit Judges.

MANION, Circuit Judge.

Defendants J.W. Pearson (hereinafter "David Porter," the name used by the parties) and Gregory Scott were partners in a small construction business in Chicago named Unity Contracting. Debra Pool and Michael Brooks were partners in a cocaine distribution ring in Springfield, Illinois. Pool and Brooks testified at the trial of Porter and Scott. Their testimony revealed a long-standing drug-purchasing relationship in which they would telephone Porter from Springfield and tell him they needed drugs. They then would drive to Chicago to purchase the drugs from Porter, who was assisted by Scott. A jury convicted Porter and Scott of conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846. Porter was sentenced to 188 months of imprisonment; Scott was sentenced to 97 months. Both appeal their convictions; Porter also appeals his sentence. We affirm.

I.

Pool met Porter while she was purchasing drugs from another supplier in Chicago. Those drugs were delivered to her one day by Porter. Soon after meeting Porter, Pool started to page him directly for drugs. Porter supplied cocaine, generally in kilogram quantities (in excess of $20,000 per purchase) to Pool and Brooks, with only a few interruptions, from early 1992 until October 25, 1994. They would arrange for drug transactions approximately two or three times each month, and sometimes once a week. Over time, Pool, Brooks and Porter developed a set routine to minimize their transaction costs as well as their risk. Pool would page Porter from Springfield, and he would call back and let her know if she could come to Chicago to purchase the drugs. Once in Chicago, Pool would page Porter from a pay telephone at 100th & Halsted on the South Side in front of a tire business by the name of "Joy Service Auto." Porter would show up and take their money. Pool and Brooks then would go out shopping or eat lunch; when they were ready to leave, they would page Porter again and he would deliver the cocaine.

Pool testified that in summer 1993 Porter introduced her to a friend named "Greg," whom she identified at trial as Scott. During one of their drug transactions, Porter brought Scott along and told Pool to give the money directly to Scott. Consistent with their routine, Porter and Scott left with the money and later returned with the drugs. When they returned, Scott was the person who handed the cocaine to Pool. Pool saw Scott a second time a few months later when he again accompanied Porter and again handed her the drugs.

In August 1993, Brooks started an unrelated prison sentence for selling drugs. Pool still wanted company on her trips to Chicago, so generally she brought along two friends, Delisha Wallace and Leotis McDowell, both of whom testified against Porter and Scott at trial. Wallace became a DEA informant in August 1993. Between September 7, 1993 and April 1994, she made 15 trips to Chicago with Pool to purchase cocaine. She reported each of these trips to her supervising DEA agent. During one trip, a DEA agent followed her without making any arrests. At trial, Wallace identified Porter as her source of cocaine.

On October 24, 1994, Porter called Pool and said he had cocaine available. Brooks (then out of prison) and Pool decided to send McDowell to Chicago to pick up the drugs. The next day, Pool gave McDowell $23,000 wrapped in a shirt to buy a kilogram. McDowell put the money in his bag and took the train to Chicago; Pool went home.

When she got home, Pool paged Porter, and Scott called her back. Pool told Scott that "Ol' Boy" (referring to McDowell) was on his way up. Scott asked what he would be getting. Pool replied, "The whole thing." Scott said all right, and their conversation ended.

DEA agents followed McDowell on the train and into Chicago. They watched as he went to 100th & Halsted and used the pay phone in front of Joy Service Auto. Telephone company records reveal a call from Unity Contracting to the pay phone at 2:54 p.m.; six minutes later, a Honda Prelude left Unity and met McDowell on the corner. McDowell got into the car, which drove away. Agents followed. Once the car pulled into a shopping mall parking lot, agents closed in and arrested the occupants. McDowell was in the passenger seat; Scott was the driver. Scott had a .22 magnum revolver in his pants pocket. The agents also recovered $22,850 in currency wrapped in a shirt and placed on the floorboard of the car.

At trial, McDowell testified about his drug transactions on behalf of Brooks and Pool. He had made about seven trips to Chicago to buy drugs from a man he knew as "Jake." He identified Porter in court as Jake. McDowell explained that on October 25th, the day of the arrests, he had paged Porter from the pay telephone in front of Joy Service Auto. Porter called back and said he was busy, but that he would send his "son" to pick up McDowell. Five to ten minutes later, a blue Honda pulled up driven by Scott. When Scott learned McDowell needed an entire kilogram, he told McDowell that he would have to pick up some more drugs. McDowell decided to go to the mall in the interim and wait for Scott to get the drugs.

Shortly after Scott and McDowell were arrested, Porter was arrested at Unity Contracting. At Porter's detention hearing in Springfield, Scott testified that he had known Porter for 20-25 years, and added "he has treated me like a son."

II.

The primary issue on appeal is whether sufficient evidence supported the convictions of Porter and Scott. Each was found guilty of conspiracy to distribute cocaine, though the government argued that Scott may have aided and abetted the conspiracy. This presents a legal distinction without significance here because a defendant indicted for a substantive offense may be convicted as an aider and abettor and even punished with the same severity as a principal. United States v. Corral-Ibarra, 25 F.3d 430, 435-36 (7th Cir.1994). ¹ When considering a challenge to the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Porter's principal argument is that he never agreed with anyone to distribute cocaine. He contends that he was involved in mere "hand to hand" sales of narcotics to Pool and Brooks and nothing more. If true, then we would have to reverse Porter's conviction because "[w]hat is necessary [to sustain a conspiracy conviction] is 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); see also United States v. Garcia, 89 F.3d 362, 365 (7th Cir.1996). Therefore, we "determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt," Jackson, 443 U.S. at 318, 99 S.Ct. at 2788-89, despite Porter's claim that, at most, he made isolated sales of cocaine to the same individuals over nearly a three-year period without entering into a conspiracy to distribute the cocaine he sold.

In reviewing the record, we are looking for evidence of "a prolonged and actively pursued course of sales coupled with the seller's knowledge of and a shared stake in the buyer's illegal venture." United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). Over the years, we have refined our calculus and have identified a few factors more relevant than others in determining whether a conspiracy existed: "for example the length of the affiliation, the established method of payment ... the extent to which the transactions are standardized, and the demonstrated level of mutual trust." Id. at 342. No one factor is dispositive, but "[i]f enough point in the direction of a concrete, interlocked interest beyond the consummation of the individual buy-sell deals themselves, we will not disturb the conclusion reached by the finder of...