U.S. v. Neighbors
| Decision Date | 29 December 2009 |
| Docket Number | No. 09-1115.,No. 09-1113.,No. 09-1114.,No. 09-1116.,09-1113.,09-1114.,09-1115.,09-1116. |
| Citation | 590 F.3d 485 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David NEIGHBORS, LaFrederick Taylor, Kamal Sims, and Trevor Perry, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Bradley Blackington, Attorney (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
Chad E. Groves, Attorney (argued), Groves & Day, Henderson, KY, Conor M. O'Daniel, Foster, Montgomery & O'Daniel, Attorney (argued), Barbara Coyle Williams, Attorney (argued), Evansville, IN, John W. Tullis, Attorney (argued), Owensboro, KY, for Defendants-Appellants.
Trevor Perry, Greenville, IL, pro se.
LaFrederick Taylor, Yazoo City, MS, pro se.
David Neighbors Jonesville, VA, pro se.
Before FLAUM, WOOD, and SYKES, Circuit Judges.
In 2008, a grand jury indicted David Neighbors, LaFrederick Taylor, Kamal Sims and Trevor Perry for participating in a conspiracy to distribute crack cocaine and powder cocaine. After an eight-day trial, a jury convicted Neighbors, Taylor, Sims and Perry of conspiracy to possess and distribute crack cocaine, finding each responsible for various levels of drugs involved in the conspiracy. The jury also found Neighbors guilty of three additional drug charges and Taylor guilty of a gun charge. The jury acquitted Perry of a felon in possession of a weapon charge and acquitted one of their co-defendants completely. Neighbors, Taylor, Sims, and Perry now appeal various aspects of their consolidated trial and Perry appeals his sentence. For the reasons set forth below, we affirm on all counts.
A jury found that defendants-appellants Neighbors, Taylor, Sims, and Perry participated, at varying levels, in a conspiracy to possess and distribute cocaine base (crack cocaine) that spanned several months in 2007. The majority of the transactions involved in this conspiracy took place at the home of Neighbors, located at 619 Jackson Avenue in Evansville, Indiana. Law enforcement became aware of this conspiracy in April of 2007 when Detective Brock Hensley of the Vanderburgh County Task Force employed a confidential informant, Samuel Curry, to make a controlled purchase of drugs from Neighbors at 619 Jackson. Surveillance of Neighbors and individuals who frequented 619 Jackson continued after this date. Approximately a month after this controlled buy, on May 22, 2007, the Vanderburgh County Task Force obtained a wiretap for Neighbors's home phone number at 619 Jackson that ran through August 22, 2007. On July 24, 2007, the Task Force officers obtained a second wiretap for Neighbors's cell phone that also ran through August 22, 2007. During the time the Task Force was conducting surveillance, Neighbors made at least nine trips to Louisville, Kentucky to purchase powder cocaine from his supplier, Thomas Perkins. Phone conversations amongst appellants discussing the acquisition of cocaine preceded each of these trips. Additionally, these wiretaps recorded conversations between the appellants regarding numerous other drug transactions.
On August 30, 2007, the officers executed search warrants for appellants' various residences. At the residence of Taylor, the officers found a firearm under the mattress in the bedroom and a digital scale in the living room. At the residence of Sims, officers found $918 on Sims's person and additional money in the oven. At Perry's residence, officers found digital scales in the master bedroom. At 619 Jackson, officers found a man by the name of Keshaun Horne who had money, cell phones, and scales on him. Officers also found plastic baggies, a small amount of cocaine, and two documents with Neighbors's name on them. Officers located Neighbors later that day and found him with the cell phone attached to the phone number for which they had obtained the second wiretap. Neighbors, Taylor, Sims, and Perry were taken into custody that day.
On May 21, 2008, a federal grand jury returned an eight-count indictment against Neighbors, Taylor, Sims, Perry, and eight other individuals.1 Count One charged Neighbors, Taylor, Sims, and Perry with conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. The indictment specified the drug quantity and type as "50 grams, or more, of a mixture or substance containing a detectible amount of cocaine base (crack cocaine) and 5 kilograms, or more, of a mixture or substance containing a detectable amount of cocaine hydrochloride (powder cocaine)." The indictment also charged Neighbors with three other possession with intent to distribute counts, and charged each Taylor and Perry with one count of possession of a firearm by a convicted felon.
After an eight-day trial, the jury convicted all four defendants-appellants. The jury returned a verdict of guilty for all four appellants on Count One, the conspiracy count. The jury additionally returned guilty verdicts for Neighbors on the other drug counts, and Taylor on the possession of a firearm count. The jury returned a verdict of not guilty for Perry on the possession of a firearm count. On the special verdict form the jury found: (1) Neighbors engaged in a conspiracy to distribute in excess of 50 grams of cocaine base and less than 500 grams of cocaine hydrochloride; (2) Taylor engaged in a conspiracy to distribute in excess of 50 grams of cocaine base; (3) Sims engaged in a conspiracy to distribute in excess of 50 grams of cocaine base; and (4) Perry engaged in a conspiracy to distribute less than five grams of cocaine base. The jury did not find that Taylor, Sims, or Perry engaged in a conspiracy to distribute less that 500 grams of cocaine hydrochloride.
Defendants-appellants appeal various claimed trial and sentencing errors. We recount the facts surrounding these alleged errors in the analysis below.
The district court assembled the jury panel at random, using voter registration polls from the Evansville area. The panel of prospective jurors contained no African-Americans. During voir dire, two prospective jurors on the panel noticed and commented on the racial make-up of the jury panel. One prospective juror, of his own initiative, said, "If I were sitting in the defendant's chair, I might be a little concerned that we're all rather light skinned over here, and isn't it supposed to be a jury of your peers?" (Trial Tr. 4). Because of the jurors' comments, the district court asked the jurors whether they felt uncomfortable rendering judgments for African-Americans because they were Caucasian. All of the potential jurors responded that they did not feel uncomfortable. Despite the reassurances of the jurors, defense counsel objected to the make-up of the jury panel and moved for a mistrial. The district court denied this motion.
All four of the appellants appeal the district court's denial of the mistrial based on the racial composition of the jury pool. Appellants claim that the complete lack of African-Americans in the jury pool violated their Sixth Amendment right to a jury selected from a fair cross-section of the community. This is a mixed question of law and fact, therefore we review the issue de novo. United States v. Phillips, 239 F.3d 829, 842 (7th Cir.2001).
The Supreme Court has determined that "the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Both parties agree that Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), controls when determining whether the jury venire is a representative cross-section of the community. Under Duren, "in order to establish a prima facie violation of the fair-cross-section requirement, a defendant must show: (1) the group allegedly excluded is a distinctive part of the community, (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process." Duren, 439 U.S. at 364, 99 S.Ct. 664. The district court followed the three-part Duren analysis and concluded that appellants did not meet the requirements to warrant a mistrial. Specifically, the district court found that the appellants did not meet their burden of showing a systematic exclusion of African-Americans from the venire.
Appellants do not refute the district court's reasoning but rather implore this court to shift the burden of proof for the third-prong of the Duren analysis to the government. Appellants acknowledge that this court addressed this exact issue in United States v. Guy, 924 F.2d 702 (7th Cir.1991). In Guy, we found that a complete lack of African-Americans on the venire satisfies the first two prongs of the Duren analysis to establish a violation of the fair-cross-section requirement. 924 F.2d at 706. However, we concluded that the complete lack of African-Americans on the venire alone is insufficient to satisfy the third prong of the Duren analysis when the venire is randomly selected from voter lists pursuant to an authorized plan. Id. Appellants criticize this reasoning for failing to account for systematic inequities present in a system that chooses venires from voter registration lists because voter registration lists generally under-represent minorities in the community. To address this problem, appellants propose that a district court should consider a venire wholly lacking in racial diversity prima facie evidence of systematic exclusion and require the government to rebut this presumption.
To support their argument that we should abandon Guy, appellants rely on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). They...
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