U.S.A. v. Bailey, 99-2933

• Decision Date: 12 September 2000
• Docket Number: No. 99-2933,99-2933
• Citation: 227 F.3d 792
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Robert Bailey, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 792

227 F.3d 792 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Robert Bailey, Defendant-Appellant.

No. 99-2933

In the United States Court of Appeals For the Seventh Circuit

Argued June 8, 2000

Decided September 12, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 790--Milton I. Shadur, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Easterbrook, Kanne and Williams, Circuit Judges.

Kanne, Circuit Judge.

Robert Bailey, a cadet with the Village of Maywood (Ill.) Park District Police Department, joined other police officers in an attempted robbery of a drug-dealer. The "drug-dealer" proved to be part of an FBI sting operation, and Bailey had succeeded only in attempting to rob an undercover FBI agent. Bailey was convicted of attempted robbery. He appeals his conviction, claiming that the government failed to prove the prerequisite jurisdictional nexus to interstate commerce and that the district court erred by instructing the jury on a "depletion of assets" theory for the interstate commerce nexus that was unsupported by the evidence. Bailey also claims that the district court made two errors at sentencing, wrongly enhancing his sentence for possession of a firearm and abuse of a position of trust. Finding no errors, we affirm.

I. History

Bailey joined the Maywood Park District Police Department in March 1995, as a cadet, a volunteer training position. Cadets are not sworn police officers, but they wear police uniforms and patrol paired with police officers. Bailey was assigned to patrol areas in and around various city parks, and he worked on occasion with Lieutenant Charles Jones and Officer Michael Broome. Bailey, Jones and Broome had previously conducted shakedowns of drug dealers, and in late 1995, the government confronted Broome with evidence of his involvement in these activities and convinced him to cooperate with the FBI. On January 16, 1996, Broome met with Jones and Bailey to plan another robbery, which in reality would be a sting operation conducted by the FBI. Broome wore a listening device to the January 16 meeting and recorded the events that transpired.

Broome told Jones and Bailey that he had an informant who owed him a favor because Broome did not charge him when Broome caught him with cocaine. This unnamed informant did not exist, but Broome produced pictures of two men to substantiate his story. Broome claimed that the informant would identify a larger drug source, from whom they could steal money and/or drugs. Broome told Bailey and Jones that his informant paid his supplier about $1,200 per ounce of cocaine. The officers decided that they would ask the informant to call his supplier to buy an ounce of cocaine, then rob the cocaine dealer of the drug purchase money. When asked if he was interested, Bailey responded, "Deal me in." Later, Bailey also told Broome that he knew sources to sell as much cocaine as they found on the supplier, if they robbed the supplier of drugs as well as money.

Broome told Bailey on January 25 that the plan they had discussed was to take place that afternoon. He asked Bailey to call Jones and to arrange to meet near Bosco Park in Maywood so that they could drive together to the deal location. He also informed Bailey that the cocaine supplier was a Mexican male. Bailey and Broome informed Jones of the rendezvous, and later Bailey met Broome, who was now wearing a listening device, at the predetermined location and drove to Bosco Park in Broome's patrol car. Jones failed to appear at the rendezvous, so Bailey and Broome proceeded without him.

The FBI set up surveillance in the park, and FBI Special Agent Miguel Del Toro (playing the role of the drug dealer) waited in a red car. Broome and Bailey arrived first and pulled up behind the red car (purportedly identified by Broome's informant), followed shortly by Jones, who drove a Maywood Park Animal Control Division van. Broome and Bailey left their patrol car and approached either side of Del Toro's car. Bailey went to the passenger side, and as he approached, Del Toro noticed that Bailey's hand rested on a black-handled, nickel-plated firearm, which he carried on his right hip. Broome ordered Del Toro out of the car, and Bailey searched the car and Del Toro's jacket and wallet and found about $1,200 in cash. Jones never left the van but ordered Broome and Bailey to strip Del Toro and search him and his car for drugs and more cash. The search revealed no drugs. During the search, Del Toro insisted that he was a dry-waller, not a drug dealer. After the search, the officers met up to split the money. While counting the money, Broome recounted Del Toro's insistence that he installed dry-wall, to which Bailey responded, "Oh yeah, a fucking dry-waller."

Two weeks later, FBI officials confronted Bailey with pictures and other evidence of the robbery. Bailey admitted his involvement and described the event in great detail. However, he refused to admit that he possessed a firearm during the deal. Bailey was indicted on one count of robbery under the Hobbs Act, 18 U.S.C. sec. 1951, and on one count of use or possession of a firearm during and in relation to a robbery, under 18 U.S.C. sec. 924(c). Jones also was charged with these crimes, but he agreed to plead guilty to each and to testify against Bailey. Bailey chose a jury trial.

At trial, the government sought to prove jurisdiction under the Hobbs Act by presenting two types of evidence relating to criminal conduct affecting interstate commerce. First, the government presented the testimony of DEA Special Agent Nancy Lane, who testified that the coca plant, from which cocaine is derived, is not grown in Illinois and that cocaine is manufactured in South America. Second, the government introduced evidence that all fuel purchases for the Maywood police department were made through a centralized billing location in Oklahoma, thus implicating interstate commerce. The government also presented tape-recorded evidence of the January 16 meeting, photographs, tape and video recorded evidence of the January 25 shakedown, testimony from Broome, Jones and Del Toro, and evidence of Bailey's confession. Both Broome and Del Toro testified that Bailey possessed a firearm on his right rear hip during the shakedown, but the two disagreed about its color. Another government witness testified that Bailey owned a firearm but did not possess it on the day of the robbery. Bailey called only one witness, FBI Special Agent Gary Sebo, who took Bailey's confession. Bailey's counsel examined Sebo about Bailey's refusal to admit, at any point during the confession, to his possession of a gun during the robbery.

At the close of the introduction of evidence, the district court held a jury instruction conference. Bailey objected to the government's proposed jury instruction on depletion of assets. He also tendered an alternative depletion of assets instruction. The district court overruled Bailey's objection and gave the government's proposed instruction.

The jury returned a guilty verdict on the Hobbs Act charge, but acquitted Bailey on the possession of a firearm charge. At sentencing, the government argued that Bailey's sentence merited a five-level enhancement under United States Sentencing Guidelines sec. 2B3.1(b)(2)(C) for possession of a firearm in connection with his offense, a two-level enhancement for abuse of a position of trust, pursuant to U.S.S.G. sec. 3B1.3 and an enhancement for physical restraint of Del Toro. Bailey contested each of these enhancements and also sought a two-level decrease for accepting responsibility. Judge Shadur conducted a hearing and granted the enhancements sought by the government and granted Bailey the two-level decrease he requested. The district judge computed Bailey's total offense level to be twenty-seven with a criminal history category I, requiring a sentence of seventy to eighty-seven months. Bailey was sentenced to seventy months imprisonment, followed by three years supervised release.

II. Analysis

Bailey appeals four issues arising from his trial and sentencing. First, Bailey contends that the government failed to prove the jurisdictional prerequisites required to prosecute him under the Hobbs Act. Second, Bailey argues that the district court erred by giving a jury instruction on the "depletion of assets" theory because that theory was unsupported by the evidence. Third, Bailey argues that the district court committed clear error by finding that he possessed a gun during the course of his criminal conduct, which led the district court to enhance his sentence for use of a firearm. Fourth, Bailey finds error in the district court's determination that he occupied a position of trust and as such, was eligible for that sentencing enhancement.

A. Interstate Commerce

Bailey contends that his conviction must be reversed because the government failed to establish that Bailey's conduct affected interstate commerce. A connection with interstate commerce is a jurisdictional requirement of 18 U.S.C. sec. 1951, see United States v. Shields, 999 F.2d 1090, 1097-98 (7th Cir. 1993), and if the government failed to present sufficient evidence of such a connection, Bailey's conviction must be overturned. Nonetheless, we grant great deference to jury verdicts and will overturn a verdict for insufficient evidence "only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Morrison, 207 F.3d 962, 966 (7th Cir. 2000) (internal quotation omitted).

The Hobbs Act prohibits any robbery or extortion or attempt or conspiracy to rob or extort that "in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce." 18 U.S.C. sec. 1951(a). The Supreme Court has interpreted jurisdiction under sec....