40 F.3d 850 (7th Cir. 1994), 93-1708, United States v. James

Docket Nº:93-1708, 93-1724, 93-1798, 93-1855 and 93-1954.
Citation:40 F.3d 850
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Twan J. JAMES, Ernest Parker, Reginald G. Allison, Yvonne R. Ferguson, and Walter Williams, Defendants-Appellants.
Case Date:November 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 850

40 F.3d 850 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Twan J. JAMES, Ernest Parker, Reginald G. Allison, Yvonne R.

Ferguson, and Walter Williams, Defendants-Appellants.

Nos. 93-1708, 93-1724, 93-1798, 93-1855 and 93-1954.

United States Court of Appeals, Seventh Circuit

November 1, 1994

Argued Dec. 6, 1993.

As Amended .

Certiorari Denied in No. 93-1954 Jan. 23, 1995.

See 115 S.Ct. 948.

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Chris R. Larsen, Asst. U.S. Atty. (argued), Rodney Cubbie, Milwaukee, WI, for U.S.

David E. Lowe (argued), Hachey & Lowe, Milwaukee, WI, for Twan J. James.

Glen B. Kulkoski (argued), Carr, Kulkoski & Carr, New Berlin, WI, for Ernest Parker.

Christopher Lowe (argued), Milwaukee, WI, for Reginald G. Allison.

Thomas M. Croke (argued), Brookfield, WI, for Yvonne R. Ferguson.

Charles W. Jones, Jr., Michael A. Yamat (argued), Jones & Associates, Milwaukee, WI, for Walter L. Williams.

Before KANNE and ROVNER, Circuit Judges, and CURTIN, District Judge. [*]

ILANA DIAMOND ROVNER, Circuit Judge.

Following a jury trial, Twan J. James, Ernest Parker, Reginald G. Allison, Yvonne R. Ferguson, and Walter Williams were each convicted of conspiring to possess with intent to distribute cocaine. In addition, James, Allison, and Williams were convicted of conspiring to possess and of possessing heroin with the intent to distribute, and of using a firearm in relation to their drug trafficking offenses. James, who has a previous felony conviction involving narcotics, was also found guilty of possession of a firearm by a felon.

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On appeal, the defendants raise several challenges to their convictions, and Allison and Williams also challenge their sentences.

I. FACTS

The Early Operations of the Conspiracy

The conspiracy began in early 1990, in Milwaukee, Wisconsin. At that time, Marvin Linnear ("BK"), Earnest Parker ("Tookie"), and Parker's girlfriend Carolyn Ward began selling heroin and cocaine from Ward's residence at 3433 North Fifth Street in Milwaukee. Linnear supplied Parker with heroin and with kilogram quantities of cocaine, and Parker and Ward then packaged the drugs for distribution. By the early summer of 1990, Glen James ("G") joined Parker, Linnear, and Granvel Windom in selling cocaine and heroin from a house located at 2125 North Palmer Street, also in Milwaukee. Charles Shaw, who is Ward's cousin, sold the drugs at Linnear's direction at the Palmer Street house, and witnessed approximately $2,500 to $3,000 worth of narcotics distributed from the house on a daily basis. Shaw received $500 per day from Linnear in exchange for selling heroin and cocaine. Shaw's involvement with the Palmer Street drug house ended with his arrest at the house on August 24, 1990, by the Milwaukee police. Shaw was held for several days, then released without prosecution.

Upon his release, Shaw began selling heroin and cocaine with Windom at yet another drug house in Milwaukee, which was operated by a man known only by the nickname of "Gordy." Several days later, Linnear, Glen James, and Walter Williams took over operations of that house and told Shaw they no longer needed his assistance. Shaw then briefly frequented a drug house located at First and Wright Streets in Milwaukee, which was operated by Ward and by Glen James' brother, Twan J. James ("Dog"). Shaw did not participate in distributing cocaine and heroin from the Wright Street drug house, and soon stopped visiting the house.

The Search of 2179 North 45th Street

During the summer of 1991, Shaw sold cocaine on the street in front of a Milwaukee apartment building located near 800 North 23rd Street. Purchasers of the drug would drive up or walk up to Shaw to obtain their supply. His source for the cocaine was Glen James. On July 30, 1991, at approximately 5:45 p.m., Shaw telephoned a tip to the Milwaukee police that illegal drugs were being "bagged up" in the upper flat of a duplex located at 2179-81 North 45th Street in Milwaukee, and that "G" (Glen James) was doing the bagging. (Dec. 10, 1992 Tr. at 83-84.) Six police officers, all in plainclothes, went to the residence to investigate. Because the officers did not believe they had probable cause to support a search warrant at that time, they decided to follow a "knock and talk" procedure. Upon arriving at the duplex, they planned to knock on the door, announce that they were police officers, and request to speak with the occupants concerning the complaint of drug trafficking that had been received.

When they reached the duplex, Officer William Hammerling, Detective Edward Liebrecht and Officer Michael Lewandowski went to the rear side door of the first floor of the duplex. At that time, the officers believed that the alleged drug trafficking was taking place in the second floor flat, and they hoped to find someone on the first floor who would open the rear door of the building and allow them access to the second floor without alerting the people inside. (Dec. 8, 1992 Tr. at 108.) As they were walking along a paved walkway to the rear side door, Detective Liebrecht looked into a set of windows on the side of the building. He saw a dining room in which four men were seated around a glass-top table. Detective Liebrecht had a clear view of the objects on the table, and saw a mechanical coffee grinder, a dinner plate containing a large mound of white powder, a handgun, and two foil wrappers. (Dec. 8, 1992 Tr. at 108-09.) All four of the men appeared to be doing something with their hands, but Detective Liebrecht could not be certain what they were doing. (Dec. 8, 1992 Tr. at 109-10.) One of the men, who was later determined to be Twan James, looked up and spotted Detective Liebrecht. He then got up from the table, grabbed a plastic bag with silver items in it, and ran from the

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dining room. A second man, who turned out to be Williams, grabbed the two foil wrappers from the table and also fled the room. Detective Liebrecht told Officer Hammerling that there were drugs and guns in the first floor residence, and Officer Hammerling began knocking on the rear side door and announcing that they were police officers. At the same time, Detective Liebrecht and Officer Lewandowski saw Williams run out of the duplex onto a second-floor porch, and ordered him to go back inside the building. Officer Hammerling then forced open the rear side door and entered the first floor residence with Officer Lewandowski and Officer Gary Temp.

When Officer Hammerling entered the residence, he saw Glen James and Twan James standing in the kitchen next to a large steel sink. The faucet of the sink had been opened and the water was running full force. He also heard the sounds of running water and of a flushing toilet in another part of the flat. Officer Hammerling told the James brothers to raise their hands over their heads and face the wall. He then walked through the dining room and came upon the bedroom door, where he saw Reginald Allison standing in the doorway as if he had just left the bedroom. (Dec. 9, 1992 Tr. at 56-57.) He also discovered a Ruger .44 caliber semiautomatic rifle propped up against the wall of the bedroom. After bringing Allison to the kitchen, he continued to search the first floor of the duplex for other people. As he walked back through the dining room, he observed several items on the dining room table, including a nine-millimeter semiautomatic pistol, a digital electronic scale, a coffee grinder, several bottles containing mannitol, a cutting agent commonly used in preparing cocaine and heroin for street distribution, three cellular telephones, several beepers, and plastic baggies and tin foil.

In the meantime, Officer Lewandowski went to the upper floor of the duplex and found Williams hiding in a closet in the attic. He too was arrested and brought to the kitchen. Officer Carol M. Starr confiscated the nine-millimeter pistol and the .44 caliber rifle, both of which proved to be loaded. Detective Liebrecht searched the bedroom for other suspects or weapons, and discovered a leather coat hanging in the closet. Inside a pocket of the coat, he found a plastic bag containing seventy-three tinfoil packets of heroin. (Dec. 9, 1992 Tr. at 27.) Suspecting that illegal drugs were being destroyed in the bathroom, Detective Liebrecht disconnected the water supply pipe and removed the entire toilet to examine it. Not having equipment with which to examine the contents of the pipe leading from the toilet, Detective Liebrecht was unable to determine whether drugs or paraphernalia had already been flushed and had made their way further down the pipe. Glen James, Twan James, Allison, and Williams were then searched. Williams, who produced a false California driver's license identifying him as Dwayne Tutt, was carrying $1,550 in cash; Glen James and Twan James had in their possession $640 and $3,534 in cash, respectively. All four were later released. 1

On August 20, 1991, police were summoned to 2179 North 45th Street by the building manager, Anton Cizel. Earlier that day, a maintenance man had reset the toilet that had been removed by Detective Liebrecht during the July 30, 1991 investigation. When the toilet failed to operate properly, the maintenance man determined that something was obstructing the drain pipe and causing the toilet to back up. Using a hand snake to clear the drain pipe, he retrieved a plastic bag containing small tinfoil packets that had been caught in the pipe. The maintenance man gave the bag to Cizel, who then turned it over to police.

Earnest Parker's Telephone Calls to Coconspirators

Between...

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