U.S. v. McClinton
| Citation | 135 F.3d 1178 |
| Decision Date | 01 April 1998 |
| Docket Number | Nos. 96-3143,96-3206 and 96-3229,s. 96-3143 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Xavier McCLINTON, Donald Kelley, and Andre McClinton, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Peggy A. Lautenschlager, Laura A. Przybylinski (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
Morris D. Berman (argued), Giesen & Berman, Madison, WI, for Defendant-Appellant Xavier McClinton.
James C. Murray (argued), Madison, WI, for Defendant-Appellant Donald Kelley.
Ralph A. Kalal (argued), Kalal & Associates, Madison, WI, for Defendant-Appellant Andre McClinton.
Before CUMMINGS, EASTERBROOK, and KANNE, Circuit Judges.
Three members of a Wisconsin drug trafficking conspiracy appeal their convictions and sentences. Xavier McClinton challenges the district court's rulings on the constitutionality of a warrantless search of his car, the denial of a mistrial motion for an incident of juror misconduct, the denial of a new trial motion for juror and prosecutorial misconduct at trial, the calculation of drug quantities attributable to him, his enhancement for being an organizer of the conspiracy, and his enhancement for possession of a firearm in connection with the drug conspiracy. Donald Kelley questions the court's refusal to grant a mistrial or a new trial motion for the same incidents of juror and prosecutorial misconduct and the court's refusal to depart downward for his minimal role in the offense. Andre McClinton appeals the court's enhancement of his sentence for his role as an organizer of the conspiracy. For the reasons given below, we find no error in the district court's determinations and affirm the convictions and sentences of all three defendants.
In the summer of 1995, the Dane County Narcotics and Gang Task Force began making controlled purchases of cocaine from Damon Henderson as part of an investigation into cocaine trafficking in that area of Wisconsin. After conducting several transactions through a confidential informant, law enforcement officials arrested Henderson. This arrest was carried out on August 12, 1995. Henderson was found to be in possession of two ounces of cocaine. A subsequent search of his residence revealed marijuana, another half ounce of cocaine, baggies, a firearm, and $5,060.
At the time of his arrest, Henderson agreed to cooperate with law enforcement. He provided a detailed description of the cocaine conspiracy in which he was involved for approximately one year. Xavier and Andre McClinton ran the organization. They received their cocaine from two Jamaicans, one of whom was Ian Haughton from Chicago, Illinois. Henderson also informed law enforcement that the McClintons periodically smuggled cocaine into the United States from Jamaica using young women as body couriers. The McClintons also used various methods of paying for the drugs. The normal method was for the McClintons to wire money as payment, but frequently the cocaine was fronted and then paid for with proceeds from its subsequent sale.
While law enforcement agents were debriefing Henderson in his apartment, surveillance officers outside reported that a red Cadillac, with license plates registered to Xavier McClinton, had arrived at Henderson's residence. Two men left the car and approached the apartment. Henderson met them outside and relayed the content of the conversation to the agents. The men were Xavier and Andre McClinton. According to Henderson, they came to collect $5,000 that Henderson owed them on an earlier front of cocaine. Law enforcement officials seized $5,060 from Henderson and replaced it with prerecorded currency which was returned so that Henderson could deliver it to either McClinton. After Henderson gave Xavier McClinton the money later in the day, Henderson reported back that Xavier McClinton was traveling to Chicago and back on August 13, 1995 to obtain some cocaine. The law enforcement officers responded by establishing surveillance along the suspected route.
They observed Xavier McClinton and a companion leave his residence and travel eastbound on I-90 toward Chicago. Based on the information Henderson provided, the officers believed that Xavier was on his way to Chicago to pick up another shipment of cocaine. They followed him in his red Cadillac south of Dane County to Chicago but lost him in the area of O'Hare Airport. Approximately five or six hours later, law enforcement officers observed Xavier McClinton traveling westbound on I-90 toward Madison, Wisconsin. Once the vehicle entered Dane County, they stopped Xavier and searched his car.
The agents did not find any controlled substance. They did, however, discover a bank bag that contained $16,000, including $4,500 of the prerecorded money that Henderson gave McClinton. The agents also found in the $16,000 two $20 bills that law enforcement officers had prerecorded and used in controlled purchases of cocaine in prior drug deals with Henderson before his arrest. The agents did not arrest Xavier McClinton at this time.
Given this partial success with Henderson, law enforcement officials continued to use him in controlled situations. On August 22, 1995, Henderson made a controlled purchase of 16 grams of cocaine from Andre McClinton. On August 23, 1995, Henderson made a second controlled purchase from Andre McClinton. Henderson wore a bodywire on both occasions. On September 15, 1995, Henderson made a third controlled purchase from Andre McClinton. All three of these purchases were fronted.
On September 19, 1995, agents provided Henderson with $600 in prerecorded currency to pay Andre McClinton for some of the previously fronted cocaine. Henderson then met with both Andre and Xavier McClinton. He later reported that he paid Andre for the fronted cocaine and that Andre did not keep the money but immediately pushed it to Xavier McClinton.
Law enforcement officials then concluded that they had sufficient evidence to arrest the members of the McClinton drug conspiracy. On October 10, 1995, Donald Kelley and Andre McClinton delivered 5.5 ounces of cocaine to Henderson. The next day, Henderson met with Andre McClinton to pay his balance for the cocaine. Andre McClinton was arrested at this time.
Subsequently, Donald Kelley, Ian Haughton, and Xavier McClinton were arrested. In the search of Xavier McClinton's apartment, agents found a Tec-9 semi-automatic assault rifle as well as a locked bank bag containing $15,550. In a search incident to Ian Haughton's arrest, agents found a set of keys which included a key to the bank bag in Xavier McClinton's apartment.
On December 20, 1995, following an earlier complaint and indictment, the grand jury for the Western District of Wisconsin returned a six-count superseding indictment against the defendants. Count I charged Xavier McClinton, Andre McClinton, Donald Kelley, and Ian Haughton with conspiring to distribute cocaine. Counts II, III, and IV charged Andre McClinton with distributing cocaine. Count V charged Andre McClinton and Donald Kelley with distributing cocaine. Count VI was a criminal forfeiture action. On December 22, 1996, the defendants entered not guilty pleas to the superseding indictment.
Two of the defendants, however, had a change of heart. On May 31, 1996, Ian Haughton pled guilty. He was sentenced on August 20, 1996 to a term of imprisonment of 70 months. He did not file an appeal.
On June 3, 1996, Andre McClinton entered a guilty plea to Count I of the superseding indictment. The court conditionally accepted the guilty plea pending review of the presentence investigation report. At sentencing, the district court enhanced Andre McClinton's offense level by four levels under § 3B1.1 of the United States Sentencing Guidelines ("U.S.S.G.") for his leadership role in the cocaine conspiracy. On August 20, 1996, the court sentenced Andre McClinton to a term of imprisonment of 168 months.
Xavier McClinton and Donald Kelley did not change their not guilty pleas. Prior to trial, these defendants submitted a number of pretrial motions including a motion to suppress evidence seized from Xavier McClinton's vehicle on August 13, 1995. McClinton argued that the law enforcement officers did not have probable cause to make the warrantless stop. Magistrate Judge Stephen L. Crocker issued a report and recommendation to deny the defendant's motion to suppress the evidence. Judge Crabb accepted this report and recommendation and denied the motion to suppress.
The trial of Donald Kelley and Xavier McClinton began on June 3, 1996, and four days later, both were found guilty. The district court sentenced Xavier McClinton to a term of imprisonment of 188 months. In calculating his base offense level, the court determined that he was involved in a conspiracy which was responsible for 3.5 to 5 kilograms of cocaine. It then enhanced this sentence level by four under § 3B1.1 of the Sentencing Guidelines for his leadership role in the conspiracy. Also, based on the discovery of a bank bag with $15,500 and a Tec-9 semi-automatic assault rifle with a loaded magazine found nearby, the court enhanced Xavier McClinton's offense level by two points for his possession of a gun in connection with a drug offense under § 2D1.1(b)(1) of the Guidelines. The court sentenced Donald Kelley to a term of imprisonment of 115 months, rejecting his claim of a minimal role in the offense.
Xavier McClinton, Andre McClinton, and Donald Kelley appeal to this Court.
The defendants raise a panoply of arguments in this appeal from suppression of evidence to sentencing violations; we address all the meritorious issues.
Xavier McClinton submits that law enforcement officers violated his Fourth Amendment rights when they stopped...
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