125 F.3d 996 (7th Cir. 1997), 96-3167, United States v. Westbrook

Docket Nº:96-3167.
Citation:125 F.3d 996
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles W. WESTBROOK, Defendant-Appellant.
Case Date:September 03, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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125 F.3d 996 (7th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,


Charles W. WESTBROOK, Defendant-Appellant.

No. 96-3167.

United States Court of Appeals, Seventh Circuit

September 3, 1997

Argued Feb. 14, 1997.

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Frances C. Hulin, David E. Risley (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Eric M. Schwing (argued), Babette P. Salus, Schwing & Salus, Springfield, IL, for Defendant-Appellant.

Before RIPPLE, MANION and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

Following a jury trial, Charles W. Westbrook was found guilty of conspiracy to distribute cocaine base (crack) in violation of 21 U.S.C. §§ 846 and 841. He was sentenced to 188 months of imprisonment followed by a five-year period of supervised release. On appeal he requests our consideration of three issues: the district court's denial of his motion to suppress statements made after his arrest, its refusal to admit evidence of gang affiliation at trial, and its denial of his motion to find unconstitutional the federal crack cocaine laws and the corresponding sentencing guidelines. For the reasons set forth in the following opinion, we affirm the judgment of the district court.



On January 30, 1995, while traveling in their patrol car on South Grand Avenue in Springfield, Illinois, State Troopers Brad Carnduff and Donald Buckley spotted a possible burglary in progress. They observed a man (later identified as Charles Westbrook) looking back over each shoulder and then squeezing through the cracked-open doorway of room 228 on the second floor of the Red Roof Inn. The officers drove back and watched room 228 from an adjoining parking lot. Parked in front of the room was a green Chevrolet Caprice occupied by a woman later identified as Charles Westbrook's wife, Sonya Westbrook. The troopers saw Mr. Westbrook leave room 228, come down the stairs, talk with his wife, return to room 228, and then leave the room again, this time with another man (later identified as Charles Dean). When the two men came down the stairway they were out of view of the troopers for one or two minutes. The officers then watched the men walk to the Chevrolet, get in and drive away. 1

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When the green Chevy did not appear on the main highway as they had expected, the troopers began looking for it. Finding the car parked unoccupied on a car dealership lot near the Red Roof Inn, they checked the car's vehicle identification number and license plate number and learned there was no registered owner. Shortly thereafter, Mrs. Westbrook returned to the car. She first denied that she had been in the car and then gave conflicting stories to the troopers about the ownership of the car. When Mr. Westbrook came up, the officers learned that neither Westbrook had a valid driver's license or car insurance. The troopers told the Westbrooks they could not move the car without a licensed driver and proof of insurance; the Westbrooks replied that their friend had gone back to the motel to get his driver's license and that they would walk home to arrange for insurance.

After the Westbrooks left, Trooper Buckley stayed at the Westbrooks' car and Trooper Carnduff returned to the Red Roof Inn to tell the Westbrooks' friend about the needed insurance. The officer did not find their friend but did find crack cocaine buried in the mulch area behind the motel. Trooper Carnduff radioed Trooper Buckley that he had found "a lot of" narcotics, and then requested assistance. Master Sergeant Avart arrived to help Trooper Carnduff collect, photograph and secure the crack cocaine in the Master Sergeant's squad car. Master Sergeant Locke went to the car dealership and stayed with the Westbrooks' car while Trooper Buckley drove to the Red Roof Inn to see the crack.

A few minutes after Officer Buckley returned to the dealership, a taxicab brought the Westbrooks back to their car. Trooper Buckley placed them under arrest and advised Mr. Westbrook he was being arrested for possession with intent to distribute a controlled substance. He ordered the Westbrooks to lie on the ground; when Trooper Locke returned to assist Trooper Buckley, the two officers handcuffed Mr. and Mrs. Westbrook, placed them each in separate squad cars and transported them to the Red Roof Inn. No Miranda warnings were given at this point.

As Trooper Buckley approached the Red Roof Inn with Mr. Westbrook in his squad car, Mr. Westbrook looked toward the area where the crack cocaine had been found and said, "Man, I didn't know anything about that stuff." R.74 at 109. The officer told Mr. Westbrook to relax and assured him that someone would come to speak to him soon. Trooper Buckley then exited the squad car and left Mr. Westbrook, handcuffed and unattended, for approximately 45 minutes. While Mr. Westbrook was waiting in the squad car, he testified, he yelled out to Officer Carnduff; and when Officer Carnduff opened the driver's door of the squad car, Mr. Westbrook told him that the drugs were not his. 2 Neither trooper gave Mr. Westbrook his Miranda warnings during this time.

Special Agents O'Neal and Fisher of the Illinois State Police Enforcement Group, a drug task force, then arrived at the motel. They directed that the Westbrooks be taken to the Investigations Office and placed in separate interview rooms. Mr. Westbrook was interviewed by Agent O'Neal, Mrs. Westbrook by Agent Fisher. Mr. Westbrook and Agent O'Neal gave diametrically different accounts of the interview. At the suppression hearing, Mr. Westbrook testified that Agent O'Neal never advised him of his Miranda rights; rather, he simply handed Mr. Westbrook some papers and "told me to initial here, here, here." R.52 at 12. Agent

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O'Neal testified that he took Mr. Westbrook's personal history, read Mr. Westbrook his Miranda rights and gave him a written form with those rights, each of which Mr. Westbrook read and initialed after stating that he understood it. Afterwards, stated the officer, Mr. Westbrook signed a waiver of those rights and agreed to give Agent O'Neal a written statement. In that statement Mr. Westbrook said he had met a person the previous day named Kevin Dean 3 who paid Mr. Westbrook $20 to give him a ride from Evergreen Terrace to the Red Roof Inn and who then paged Mr. Westbrook later that day to come pick him up at the Red Roof Inn. According to Mr. Westbrook, he just had returned to that motel, after being paged, when the police saw him.

At some point during Mr. Westbrook's interview, Agent Fisher came into the room. Again the testimony of Mr. Westbrook differs significantly from that of Agent O'Neal. According to Mr. Westbrook, Agent Fisher held up a bag of marijuana and said, "Look what I found." R.52 at 13. He then told Mr. Westbrook that, if Westbrook cooperated in finding Kevin Dean, nothing would be said about the marijuana. Mr. Westbrook made his written statement for Officer O'Neal at that time. Agent O'Neal, however, testified that Mr. Westbrook signed the Miranda form, after being advised of each right, and that he agreed to waive his rights and signed the waiver portion of the Miranda form. According to the agent, Mr. Westbrook then wrote out a statement, voluntarily and without guidance from the officer. Agent O'Neal also testified that Agent Fisher came into the room with a bag of marijuana at some point, but the timing of the other agent's arrival was never clarified. Agent O'Neal denied that Mr. Westbrook was told that, if he cooperated, nothing would be said about the marijuana. Mr. and Mrs. Westbrook were released following their interviews but were told that the investigation would continue.

Some time later, in an unrelated investigation, Charles Dean (the man Mr. Westbrook had identified as "Kevin" Dean) was charged in the Southern District of Illinois with conspiracy to distribute cocaine. Dean pleaded guilty and agreed to cooperate with the government concerning any illegal activities in which he was involved. Pursuant to his plea agreement, therefore, Dean gave information about his criminal involvement in this investigation. When Agent O'Neal interviewed him, Dean told the officer about the events of January 27-30, 1995, and about the arrangement he had with Mr. Westbrook. Dean also testified at Mr. Westbrook's trial. 4 Dean, Mr. Westbrook and the police officers presented three versions of the facts that differed significantly in their content. 5 On

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March 29, 1996, following a three day trial, the jury found Mr. Westbrook guilty of conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was sentenced to 188 months of imprisonment and five years of supervised release. This appeal followed.



  1. Motion to Suppress

    Mr. Westbrook sought to suppress both his oral statements to Troopers Carnduff and Buckley at the Red Roof Inn and his written statement made later during Special Agent O'Neal's interrogation. He submitted that the statements were obtained in violation of his Fifth Amendment Miranda rights and were coerced. Following a hearing, the district court denied Mr. Westbrook's motion to suppress. We review the appeal of that decision under the two-pronged standard set forth in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and its progeny. The Ornelas Court established that appellate courts are to review de novo the ultimate questions of reasonable suspicion and probable cause. Id. at ----, 116 S.Ct. at 1663. Since Ornelas, we have followed that reasoning by requiring independent review of the district court's determination of whether the interrogation was custodial, see United States v. Yusuff, 96 F.3d 982,...

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