162 F.3d 937 (7th Cir. 1998), 98-1691, United States v. Hach

Docket Nº:98-1691, 98-1801.
Citation:162 F.3d 937
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carl HACH and Francis Hach, Defendants-Appellants.
Case Date:December 09, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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162 F.3d 937 (7th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Carl HACH and Francis Hach, Defendants-Appellants.

Nos. 98-1691, 98-1801.

United States Court of Appeals, Seventh Circuit

December 9, 1998

Argued Sept. 18, 1998.

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Peggy A. Lautenschlager, Larry Wsalek (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Mark A. Eisenberg (argued), Eisenberg Law Offices, Madison, WI, for Defendant-Appellant Carl J. Hach.

Charles W. Giesen (argued), Giesen Law Offices, Madison, WI, for Defendant-Appellant Francis Hach.

Before POSNER, Chief Judge, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

This case presents us with the combined direct appeals of Francis "Butch" Hach ("Butch") and Carl Hach ("Carl"). The Haches, father and son respectively, were involved in cocaine use and dealing in Cooksville, Wisconsin, from the late 1980's until their arrests in 1997. The two men were indicted for conspiracy to distribute cocaine along with Anthony and Nicholas LaCorcia.

Butch Hach was tried and convicted by a jury in January 1998, and was sentenced to 240 months imprisonment. He raises a bevy of issues on appeal, asking that his conviction be reversed, or in the alternative, that his sentence be vacated or remanded. Carl Hach pleaded guilty to the conspiracy and was sentenced to 188 months imprisonment. He only asks that we remand his case for resentencing. For the reasons set out below, we affirm Butch's conviction, and affirm Butch and Carl's sentences.

FACTS

The Haches lived in Cooksville, Wisconsin at the Cooksville Blacksmith Shop, which Butch owned. Beginning sometime in the late 1980's Butch and Carl began to purchase cocaine first from Mark LaCorcia (now deceased), then from Nick LaCorcia, and after Nick was incarcerated, from the third LaCorcia brother, Tony. The LaCorcias also had a partner, Tom Sajenko, who frequently couriered drugs and money to and from the Haches.

The defendants received their cocaine at the Blacksmith Shop. The cocaine was weighed on Carl's scale, and delivered to the

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defendants in their respective bedrooms. The Haches sometimes resold the cocaine they obtained from the LaCorcias and Sajenko. Tony LaCorcia continued delivering cocaine to the Haches until May, 1997, when law enforcement authorities executed a search warrant on the Blacksmith Shop. At that time, Carl agreed to cooperate with law enforcement. Due to Carl's cooperation, Tony LaCorcia was arrested by the authorities.

At the defendants' separate sentencing hearings, the district court made factual findings concerning the amount of drugs attributable to the conspiracy and to Butch and Carl individually. The district court attributed between 5.4 and 8.3 kilograms of cocaine to the conspiracy. It also held that based on the joint participation of the defendants, each was accountable for the entire amount. In addition, Butch received a two point adjustment to his sentence pursuant to the Sentencing Guidelines' obstruction of justice enhancement for false testimony at trial and sentencing. Butch was also found to have a criminal history category II based on a 1985 conviction for operating a motor vehicle while under the influence of alcohol. Finally, the district court imposed a $20,000 fine on Butch after determining that his net worth was in excess of $50,000.

ANALYSIS

I.

Butch Hach's Appeal of His Conviction

Butch Hach contends that his conviction should be overturned on numerous grounds. We discuss, and reject, each of his arguments in turn.

A.

Among his arguments, Butch contends that the district court erred in denying his Rule 29(a) motion for a judgment of acquittal. We review this argument first, because, should we find in his favor, the remainder of his appeal is moot. We apply a de novo standard of review to the district court's denial of a motion for acquittal made pursuant to Fed. R. of Crim. P. 29(a). United States v. Draves, 103 F.3d 1328, 1331 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2528, 138 L.Ed.2d 1028 (1997). When a defendant avers a lack of sufficient evidence, the question both the district court and this Court ask is whether evidence exists from which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 1332. Proving that no such evidence exists presents "a nearly insurmountable hurdle to the defendant." United States v. Pulido, 69 F.3d 192, 205 (7th Cir.1995) (quoting United States v. Teague, 956 F.2d 1427, 1433 (7th Cir.1992)). If, after viewing the evidence in the light most favorable to the prosecution, we believe that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will affirm. United States v. Pribble, 127 F.3d 583, 590 (7th Cir.1997). In our review, we do not weigh evidence or assess credibility issues--those tasks fall within the jury's province. Id. at 590. 1 Only if the record is devoid of evidence from which a jury could find guilt will we reverse. Pulido, 69 F.3d at 205-06.

To sustain a conspiracy conviction, the record must contain evidence showing that a conspiracy to distribute cocaine existed, and that Butch Hach knowingly participated in it. United States v. Hunter, 145 F.3d 946, 949 (7th Cir.1998). Butch maintains that while he bought, consumed and

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sold cocaine, he had no agreement with the LaCorcias and Sajenko to distribute what they sold him. If he is correct, his conviction must be reversed, because, as we have held, to demonstrate a conspiracy, the government must show "proof of an agreement to commit a crime other than the crime that consists of the sale [of cocaine] itself." United States v. Pearson, 113 F.3d 758, 761 (7th Cir.1997) (quoting United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.1993) (en banc)). "[A] simple agreement between a buyer and seller to exchange something of value for cocaine cannot alone constitute a conspiracy because such an agreement is itself the substantive crime." United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994).

Butch Hach argues that his relationship with his suppliers--the LaCorcias and Tom Sajenko, and his son Carl--was just this type of arms-length buyer-seller arrangement. Butch argues that his dealers never directed him to sell the cocaine they had sold him. He seeks to bolster his case by contending, for example, that Tom Sajenko never said to him "Butch, here's some cocaine. If you can't sell it, you don't have to pay for it." According to Butch, the absence of such facts indicates the absence of a conspiracy.

However, we may look beyond the lack of explicit agreements and direct evidence to circumstantial evidence which tends to establish the conspiracy to distribute cocaine. United States v. Larkins, 83 F.3d 162, 166 (7th Cir.1996). In reviewing the record, we look for evidence of a "prolonged and actively pursued course of sales coupled with the seller's actual knowledge and a shared stake in the buyer's illegal venture." Clay, 37 F.3d at 341. As discussed in both Pearson and Clay, we have identified four factors as particularly salient in determining whether a conspiracy existed, and whether a defendant knowingly participated in it: (1) the length of affiliation, (2) the established method of payment, (3) the extent to which transactions were standardized, and (4) the demonstrated level of mutual trust. See 113 F.3d at 761; 37 F.3d at 342. Although none of these factors is dispositive, if enough are present and point to a concrete, interlocking interest beyond individual buy-sell transactions, we will not disturb the fact-finders inference that at some point, the buyer-seller relationship developed into a cooperative venture. Pearson, 113 F.3d at 761.

The record shows that each of these factors existed in the relationship between Butch Hach and his co-conspirators, and that in the aggregate, the facts denote the "concrete and interlocked interest" required by Pearson. As to the length of affiliation, Butch Hach bought cocaine from the LaCorcias and Tom Sajenko for seven years. In that time, the LaCorcias and Sajenko provided Butch with cocaine on a steady basis, sometimes providing amounts fit for more than personal consumption. When one of the sellers was incarcerated or indisposed, another in the group picked up the slack.

The transactions were also standardized--nearly every sale had certain hallmarks. Deliveries were made almost exclusively to the upstairs bedrooms at the Blacksmith Shop; they were routinely made on Wednesdays or Thursdays. Each time, the cocaine was measured out and weighed in Carl's bedroom on Carl's scale, whether he was present or not. The payments were sometimes made at the time of delivery, and sometimes made a few days later. Sajenko testified that on occasion, if Butch did not have enough cash, Sajenko would still give him the cocaine and return for full remuneration later. Frequent and repeated transactions with an attendant established method of payment that includes a rudimentary form of credit can support a conspiracy conviction. United States v. Fagan, 35 F.3d 1203, 1206 (7th Cir.1994) (citing United States v. Dortch, 5 F.3d 1056, 1065 (7th Cir.1993)).

These routinized deliveries indicate the fourth factor--demonstrated level of mutual trust. The Haches permitted Tom Sajenko free, unencumbered access into their living area at the Blacksmith Shop, where he was allowed to use Carl's scale to weigh to cocaine. After apportioning the drugs, Sajenko waited for Carl and Butch to join him so he could deliver them their drugs. The arrangement...

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