U.S. v. Miller, 04-1989.

Decision Date20 April 2005
Docket NumberNo. 04-1989.,04-1989.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Duane L. MILLER, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Bradley Blackington (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Kathleen M. Sweeney (argued), Indianapolis, IN, for Defendant-Appellant.

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

After an undercover sting operation involving numerous purchases of the drug Ecstasy, the Marion County Sheriff's Department arrested Duane Miller and an accomplice during a buy-bust operation. Miller was indicted for one count of conspiracy to distribute Ecstasy and two counts of distribution, and was convicted by a jury of conspiracy and one count of distribution. Miller appeals his conviction on four grounds, contending that there is insufficient evidence to support his convictions, that the district court abused its discretion by not allowing him to explain his request for new counsel before denying that request, that the district court's enhancement for obstruction of justice violated his Sixth Amendment rights under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and that the district court erred by not considering him for a reduction for his minor role in the offense. Though we find that there was sufficient evidence to support Miller's convictions and that the district court did not abuse its discretion in denying his request for new counsel, we remand to the district court for a determination whether Miller should receive a role in the offense reduction.

I.

The facts of this case may be summarized as follows. After receiving a tip, Marion County Sheriff's Department Detective Brian Mahone learned that Patrick Holman was a "street source" of Ecstasy in Indianapolis, and that he could be reached at a certain cellular telephone number. Detective Mahone purchased 10 Ecstasy pills from Holman on April 28, 2003, and purchased 100 pills on May 1, when Holman was driven to the buy location by Miller. On May 5, Detective Mahone called Holman to arrange a third purchase of 1,000 pills for $8.00 per pill; Holman replied that he would have to check and called Mahone moments later to tell him that the price would be $8.50 per pill. Holman then received an incoming call from Miller's home telephone, and told Mahone that he would have to take a call from his "cousin." When he came back on the line to Detective Mahone, Holman informed the detective that "he" had set the price at $8.50. On May 8, Detective Mahone again called Holman to arrange the buy; Holman told Mahone that his "cousin" had increased the price to $9.00 per pill. Eventually, the buy was set for May 9, 2003. Shortly after Detective Mahone and another undercover detective came to the buy location, Holman and Miller arrived in separate cars. Holman entered Detective Mahone's car, took the purchase money and then told the detective to call his "cousin" at Holman's cellular number. Detective Mahone did so and handed his cell phone to Holman who said, "Hey, it's cool." After Holman hung up, Miller left his car and handed Detective Mahone a bag containing 1,000 Ecstasy pills. Detective Mahone told Miller that he would put the pills under his car seat; Miller responded, "You already know, a safety, a safety precaution." Detective Mahone then told Miller that he enjoyed "dealing with PJ [Holman]" because he was "on time." Detective Mahone continued to purchase Ecstasy from Holman until Miller and Holman were apprehended in a buy-bust operation on June 10, 2003.

In June of 2003, Miller was indicted for one count of conspiracy to possess with intent to distribute Ecstasy (Count 1) and two counts of distribution of Ecstasy (Counts 3 and 4, for transactions in May of 2003), in violation of 21 U.S.C. § 841(a)(1). The district court appointed counsel for Miller, and his jury trial was scheduled for mid-August, 2003. Thereafter, Miller requested and was granted three continuances, postponing his trial until January 12, 2004. On January 9, 2004, the last business day before trial, Miller retained his own attorney, who filed a conditional appearance and requested a fourth continuance at 4:07 p.m. On the morning of trial, the district court held a brief hearing on the continuance, but spoke only to Miller's court-appointed counsel and the attorney he had retained. Miller's court-appointed counsel said that Miller had missed an appointment the previous Friday, and asked the district court to consider other factors in an ex parte hearing. The district court then denied Miller's request, finding that there had not been a lack of communication between Miller and his appointed counsel, and that the request was untimely. After denying the request, the district court provided Miller's court-appointed counsel an opportunity to supplement the record during an ex parte proceeding, in which that counsel discussed the impact of Miller's missed appointment upon his trial preparation. The district court then asked Miller if he wanted to address the issue, and Miller stated only that he had missed the appointment to meet with the attorney he had retained. He cited no reasons for requesting new counsel and stated that he had communicated well with his appointed attorney.

Miller testified at trial and admitted that he had delivered a bag to Mahone on May 9, 2003, but claimed to be unaware that the bag contained Ecstasy. On January 13, 2004, the jury convicted Miller of the conspiracy charge and of one count of distribution. At sentencing, the district court held Miller accountable only for the Ecstasy pills distributed in the May 1, 2003 buy, and not for additional Ecstasy pills distributed during the course of the conspiracy. Rejecting Miller's argument that he should receive a two-level reduction for his allegedly minor role in the offense, the district court applied a two-level enhancement for obstruction of justice, finding by a preponderance of the evidence that Miller had lied when he claimed not to know that there were Ecstasy pills in the bag he delivered to Detective Mahone. Miller was then sentenced to 70 months' imprisonment on Counts 1 and 4, to run concurrently.

II.

On appeal, Miller contends that there is insufficient evidence to support his convictions, that the district court abused its discretion by not allowing him to explain his request for new counsel before denying that request, that the district court's enhancement for obstruction of justice violates his Sixth Amendment rights since it was based on facts not found by a jury or admitted to by the defendant and that the district court erred by not considering him for a reduction for his minor role in the offense.

A.

We first address Miller's insufficient evidence claim. Miller concedes that he drove Holman to one buy and handed a bag to Detective Mahone at another, and that he complimented Detective Mahone for taking a "safety precaution" by concealing the bag. At trial, however, Miller denied that he knew the bag contained a controlled substance, and asserts on appeal that there is merely a probable inference that he was aware of the bag's contents, and not proof beyond a reasonable doubt. Miller also emphasizes that he never received any of the purchase monies, was never present when money was discussed or exchanged, was never named in connection with Holman and that a search of his apartment revealed no evidence linking him to the transactions.

A conspiracy conviction requires a showing that two or more people joined together for the purpose of committing a criminal act and that the charged party knew of and intended to join the enterprise. United States v. Adkins, 274 F.3d 444, 450 (7th Cir.2001). The government may establish these elements through "circumstantial evidence and the reasonable inferences therein concerning the parties' relationships, their overt acts, and their overall conduct." United States v. Navarrete, 125 F.3d 559, 562 (7th Cir.1997). A defendant has joined a conspiracy if "his presence, along with other evidence indicating that the presence or act was intended to advance the ends of the conspiracy is shown." Id. at 662 (internal quotation marks omitted). Finally, when attempting to prove a drug conspiracy, the government cannot merely show that the defendant was a participant in a buyer-seller relationship, but must "prove that the defendant conspired to commit some crime beyond that agreement to sell drugs." United States v. Rock, 370 F.3d 712, 714 (7th Cir.2004) (emphasis in original). Because Miller did not file a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, we review this insufficient evidence claim for plain error, and consider whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal citations omitted).

Here, the government has met its burden of proof. Holman's telephone records establish that Miller was the person Holman referred to as his "cousin," who set the prices for Ecstasy, which Holman quoted to Mahone. Moreover, Miller admits to engaging in overt acts in furtherance of the conspiracy, such as driving Holman to the first buy, handing a bag to Mahone during the second buy and complimenting Detective Mahone on his concealment of the bag. The evidence also indicates that Miller delivered the bag to Detective Mahone only after Holman told him that it was "cool," and that Miller received a compliment on Holman's professionalism. These facts establish that Miller and Holman were not only on the same side of the transaction, but that Miller participated actively in the Ecstasy sales, was concerned about payment by third-party purchasers and...

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