USA. v. Brack & Henderson
| Decision Date | 25 February 1999 |
| Docket Number | 98-2341,98-2116,Nos. 98-2032,98-2044,98-2152,s. 98-2032 |
| Citation | 188 F.3d 748 |
| Parties | (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Kenyatta Brack, Patrick Henderson, Willie Tyler, Nicholas Martinez, Maurita Stovall, and Dana Richardson, Defendants-Appellants. & 98-2438 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the Western District of Wisconsin. No. 97 CR 74--Barbara B. Crabb, Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before Bauer, Harlington Wood, Jr., and Ripple, Circuit Judges.
This is a consolidated direct appeal by six defendants convicted of various offenses stemming from a crack cocaine conspiracy. The defendants raise numerous issues on appeal. For the reasons stated below, we affirm in part and reverse in part.
From the middle of 1995 until August 1, 1997, Christopher Bell (Bell") led a conspiracy to distribute crack cocaine in Southern Wisconsin. On August 7, 1997, a federal grand jury sitting in the Western District of Wisconsin returned a fourteen-count indictment against eleven individuals, including Kenyatta Brack (Brack"), Patrick Henderson (Henderson"), Willie Tyler (Tyler"), Nicholas Martinez (Martinez"), Maurita Stovall (Stovall"), and Dana Richardson (Richardson"). Count 1 of the indictment charged all the defendants with conspiracy to distribute cocaine base and to possess cocaine base with intent to distribute, in violation of 21 U.S.C. sec. 846. Count 2 charged Brack with possession of cocaine base with intent to distribute, in violation of 21 U.S.C. sec. 841(a)(1). Finally, counts 3, 4, 5, 7, 8, and 10 charged Richardson with possession of cocaine base with intent to distribute, and distribution of cocaine base, both in violation of 21 U.S.C. sec. 841(a)(1).
On January 30, 1998, Brack pled guilty to the conspiracy charge. However, he reserved the right to appeal the district court's denial of his motions to suppress evidence found when the police strip searched him, and when they searched Room 109 of the Econolodge in Beloit, Wisconsin. Also on January 30, 1998, after filing numerous pretrial motions, proposed voir dire questions, and proposed jury instructions, as well as participating in a final pretrial conference, Martinez entered a conditional plea of guilty to the conspiracy charge. Martinez's trial was scheduled to begin three days later. Finally, on March 6, 1998, Richardson pled guilty to possession of cocaine base with intent to distribute. The remaining three appellants proceeded to trial before a jury.
At trial, both Bell and Martinez testified that Tyler was a distributor for the conspiracy. Bell further testified that his relationship with Tyler began in September 1996 and continued until August 1997. However, there is some confusion about whether Tyler distributed drugs for Bell during the entire year or for only eight months. In any case, the conspiracy delivered half an ounce to an ounce of crack to Tyler each week. Bell testified that much of the crack was given to Tyler on credit, although Martinez testified that he was under the impression that Tyler usually paid Bell in advance. Finally, Bell testified that he wanted Tyler to sell drugs for him because Tyler was able to sell to people with whom Bell didn't otherwise do business.
On February 6, 1998, the jury found Henderson, Tyler, and Stovall guilty of the conspiracy charge. On March 20, 1998, Tyler submitted a six- page, single-spaced, handwritten account of his offense and contended that he qualified for sentencing under the safety valve provisions. 18 U.S.C. sec. 3553(f); U.S.S.G. sec. 5C1.2. Tyler's attorney also wrote to the government to confirm Tyler's willingness to submit to a safety valve interview. However, the government took the position that Tyler had not provided truthful information. It pointed to inconsistencies between Tyler's safety valve statement and the sworn testimony of Bell and Martinez. No interview was conducted because of the government's lack of faith in the veracity of Tyler's statement. The district court held that Tyler had not met the safety valve requirements.
Richardson's truthfulness was also called into question at sentencing. At issue was a typed statement by Richardson in which he denied that he was a member of the conspiracy, and claimed that he was merely an independent dealer who was supplied by Bell. In addition, Richardson estimated that he sold between one and one and a half ounces of cocaine a month. These assertions conflicted with statements made by Bell and Martinez to police shortly after they were arrested. Both Bell and Martinez told police that Richardson was a member of the conspiracy and that he sold between one and four ounces of cocaine a week. The district court found that Richardson was a member of the conspiracy, that his relevant conduct involved more than 1.5 kilograms of cocaine base, and that he had falsely denied relevant conduct. Accordingly, the lower court refused to reduce Richardson's offense level for acceptance of responsibility.
Martinez also experienced some difficulty at sentencing. The district court granted him a two- level sentence reduction for acceptance of responsibility, but it denied him an additional one-level reduction because he pled guilty only three days before trial. Furthermore, the court gave him a two-level sentence enhancement for possession of a dangerous weapon.
As for Stovall, her sentence was enhanced by two levels for using a minor to commit a crime. In applying the enhancement, the district court relied on recordings of two telephone conversations that took place on July 12 and July 23, 1997. During both phone calls, Stovall asked Maurice Tucker (Tuck"), a fourteen year old who worked for Bell's organization, to bring her some crack. The court found that these conversations showed that Stovall asked Tuck to do work for her that involved the distribution of drugs." (Tr. vol. 3 at 28.)
The following table summarizes the offenses of conviction and sentences of the appellants.
Appellant Offense of Conviction Sentence
Brack conspiracy to distribute & to
possess with intent to distribute 188 mo
Henderson conspiracy to distribute & to
possess with intent to distribute 360 mo
Tyler conspiracy to distribute & to
possess with intent to distribute 188 mo
Martinez conspiracy to distribute & to
possess with intent to distribute 250 mo
Stovall conspiracy to distribute & to
possess with intent to distribute 235 mo
Richardson possession with intent to
distribute 324 mo.
Brack's first argument on appeal is that there was no probable cause to support the search warrant for Room 109 of the Econolodge and that, consequently, the district court should have suppressed any evidence found when the room was searched. Before we discuss probable cause, however, we must address the government's contention that Brack is not entitled to challenge the existence of probable cause because he has not shown that he personally ha[d] an expectation of privacy in the place searched, and that his expectation [wa]s reasonable." Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 472 142 L.Ed.2d 373 (1998).2 It is by now well-established that Fourth Amendment protections extend to temporary dwellings such as hotel rooms. United States v. Jerez, 108 F.3d 684, 690 n. 4 (7th Cir. 1997); Carter, 119 S. Ct. at 473. However, the government's challenge puts Brack in the unhappy position of bearing the burden of proving that he was dwelling, at least temporarily, in Room 109 of the Econolodge, see United States v. Torres, 32 F.3d 225, 230 (7th Cir. 1994), which he cannot do without seriously weakening his claim that there was no probable cause to search the room. Since we find below that there was probable cause to support the warrant, we need not address Brack's expectation of privacy further.
Probable cause exists when the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661 (1996). Therefore, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S. Ct. 2317, 2335 n. 13 (1983). An anticipatory warrant must be supported by probable cause to believe that contraband will be located at the premises to be searched after certain events transpire." United States v. Dennis, 115 F.3d 524, 528 (7th Cir. 1997). In determining whether probable cause exists, an official must consider the totality of circumstances. Gates, 462 U.S. at 238, 103 S. Ct. at 2332. We review determinations of probable cause de novo. Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
Brack's argument is essentially that the Rock County Court Commissioner was presented with insufficient reliable evidence to support a finding of probable cause. He notes that an official cannot merely ratify the bare conclusions of others," Gates, 462 U.S. at 239, 103 S. Ct. at 2333, and that, for this reason, [a]n officer's statement that 'affiants have received reliable information from a credible person' . . . is . . . inadequate," id. at 239, 103 S. Ct. at 2332-33; see also United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir. 1996) (). The point...
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