U.S. v. Penny

Decision Date26 July 1995
Docket NumberNo. 94-2934,94-2934
Citation60 F.3d 1257
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jonathan PENNY, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Barry Rand Elden, Asst. U.S. Atty., Gil Soffer (argued), Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

Michael D. Monico, Barry A. Spevack (argued), Monico, Pavich & Spevack, Chicago, IL, for defendant-appellant.

Before BAUER and RIPPLE, Circuit Judges, and REYNOLDS, District Judge. *

RIPPLE, Circuit Judge.

After a jury trial, Jonathan Penny was convicted of criminal conspiracy to distribute narcotics and of distribution of narcotics, in violation of 21 U.S.C. Secs. 841 and 846. The district court sentenced Mr. Penny to twenty-five years of imprisonment followed by supervised release for the remainder of his natural life. Mr. Penny appeals the conviction. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND
A. Facts

From 1984-90, Jonathan Penny purchased and sold large quantities of narcotics. Starting in the early 1980s, Mr. Penny had begun to accumulate significant wealth due to his drug business. Andre Jackson, a former large-scale buyer and seller of drugs in Chicago, and later a government informant, testified that he had noticed that Mr. Penny's lifestyle reflected an increase in wealth. Mr. Penny, on one occasion, related to Jackson that he was generating income through heroin sales.

The record contains evidence that, as early as 1984, Mr. Penny was involved in a broad-reaching drug distribution scheme. While Mr. Penny was serving a term of imprisonment in the East Moline Correctional Center, he stated to his cell mate, William Bauer, a prisoner sentenced to imprisonment for armed robbery, that he earned his livelihood selling cocaine. He explained to Bauer how he ran his business, including how his wife, Clara, handled the business while he was imprisoned. He also shared with Bauer the manner in which he conducted his drug dealings.

Mr. Penny, on Bauer's suggestion, arranged for a narcotics transaction while he was imprisoned. Mr. Penny was to provide one ounce of cocaine to associates of Bauer who would in turn sell it on the street. To facilitate the transaction, Mr. Penny contacted LaVada Davis, a drug dealer whose services Mr. Penny engaged consistently. Ms. Davis transported the cocaine to Bauer's wife, who then delivered the narcotics to an acquaintance of Bauer's in Peoria. Payment was made to Penny through Bauer's wife who brought the cash to Bauer in jail.

Signs of a large drug distribution network were also demonstrated by the manner in which Mr. Penny directed an independent carpenter, Peter Loeb, to build and rehabilitate his many residences. Starting in 1983, Mr. Penny paid Loeb in cash--weekly for labor and monthly for materials. The work that Loeb performed grew so extensively that, from 1985-88, Loeb worked exclusively for Mr. Penny. No limit was set on the cost of Loeb's work. He gutted and remodeled residences--carpentry work alone for each residence many times exceeding $50,000. Loeb, per Mr. Penny's instructions, constructed concealed rooms and closets with false backs in these properties. Occasionally, Mr. Penny employed Loeb as a consultant, and flew him down to Arizona so that Loeb could evaluate whether it would be advisable to build on various parcels of land. Loeb testified that, for the last three years that he worked for Mr. Penny, he was paid $720,000 for labor and materials. He also stated that, when he traveled to Penny's residence to receive payment for his work, he observed cash and packets of white powder lying on Penny's bed.

Mr. Penny also spent significant sums of money from 1984-1989 on automobile restoration and racing. Mr. Penny paid for the Mr. Penny and Andre Jackson continued to associate after Penny left jail. In 1987, Mr. Penny told Jackson that he was selling large amounts of brown heroin. Mr. Penny stated at the time that brown heroin was more profitable than cocaine, and showed Jackson approximately five buildings that he claimed he had purchased and remodelled with proceeds from heroin sales. In May 1987, Jackson purchased 150 pounds of marijuana from Penny. When Jackson took delivery of the drugs, he was led through a secret door concealed in a kitchen closet into a room. In that room, Jackson saw marijuana, drug paraphernalia, and heroin dilution tools. Mr. Penny, Jackson testified, stated that he used the room for mixing and storing drugs. Penny added that the room was fireproof, and that he believed it would go undetected in a police raid.

installation of secret compartments in three of his automobiles. Additionally, each year, Mr. Penny paid approximately $25,000 in cash to have an automobile restoration company do general work on his automobiles and to create an insignia Mr. Penny could place in his vehicles. In 1987, Mr. Penny paid a professional race car driver $40,000 to race a car painted with Penny's name and insignia.

Through 1987, Jackson continued to purchase marijuana and cocaine from Mr. Penny. Jackson would pick up the drugs at Penny's various residences. By the fall of 1987, Jackson agreed to sell a kilogram of cocaine to Mr. Penny for $20,000. Jackson delivered the drugs, but was never paid. Jackson was arrested by police in December 1987, but his dealings with Penny did not cease. In December 1988, the lawyer Jackson hired to represent him offered to sell fifty kilograms of cocaine to him. The lawyer stated that his supplier was Mr. Penny. Thereafter, Jackson approached Penny directly to purchase cocaine, and arranged for some multi-kilogram purchases.

Mr. Penny, meanwhile, continued narcotics dealings with William Bauer, now released from prison. Penny supplied Bauer with cocaine through the fall of 1988. However, Bauer failed to resell the cocaine to pay Penny, and consequently, Penny ceased supplying Bauer.

B. Earlier Proceedings

In 1989, the government began its investigation of suspected criminal activity by Mr. Penny. On April 5, 1989, the government seized approximately ten buildings, some automobiles and other assets in a civil forfeiture action. Searches of the seized assets produced firearms and ammunition, marijuana, cocaine, heroin, financial records that demonstrated that substantial money was used to remodel the Penny properties, as well as other records and assets that indicated that substantial sums of money were deposited in accounts or expended. Mr. Penny continued his drug transactions after the forfeiture, and, in July and September 1990, he conducted drug transactions with two different government informants.

The government filed a criminal indictment on June 9, 1992. It alleged that Mr. Penny had participated in a criminal conspiracy to distribute narcotics and had distributed narcotics, in violation of 21 U.S.C. Secs. 841 and 846. On August 30, 1993, a jury trial was commenced, and on September 10, 1993 the jury found Penny guilty on both charges. After consideration of a motion and an amended motion for new trial, in August 1994, the court sentenced Penny to twenty-five years of imprisonment, to be followed by supervised release for the remainder of his life.

In the related forfeiture action, in which Clara Penny, but not Jonathan Penny, contested the civil forfeiture of the properties seized in 1989, the district court granted summary judgment on the merits to the government. United States v. All Assets & Equip. of W. Side Bldg. Corp., 843 F.Supp. 377 (N.D.Ill.1993). We affirmed in part, 1 and remanded in part, holding that the government had probable cause to seize the property and that the district court appropriately denied Mrs. Penny's motion for continuance. We remanded the case to the district court to determine whether the holding of the Supreme Court of the United States in United States v. James Daniel Good Real Property,

--- U.S. ----, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), required that Clara Penny recover damages for the lost use of her property between the initial seizure and the adversary hearing.

II ANALYSIS

Mr. Penny raises a number of issues on appeal. He submits that his conviction must be reversed because his criminal prosecution followed a separate civil forfeiture action, and thus subjected him to double jeopardy. Mr. Penny also submits that there existed insufficient evidence to support a conviction of conspiracy to distribute narcotics. In addition, he raises three evidentiary issues that, he contends, constitute reversible error. First, Mr. Penny avers that the trial court erred by allowing the admission of evidence of Mr. Penny's unexplained wealth. Second, Mr. Penny contends that a statement by a government agent improperly bolstered the testimony of a drug-dealer-turned-government-informant. Lastly, Mr. Penny claims that he was unfairly prejudiced by the erroneous admission of testimony of a United States Marshal, who was not qualified as an expert, yet testified about the use of coffee beans in door frames by drug dealers. We consider each contention in turn.

A. Double Jeopardy

Mr. Penny submits that his criminal conviction should be reversed on the ground that such a conviction constitutes double jeopardy because the government had seized his assets in a prior civil forfeiture action brought in April 1989. Mr. Penny did not contest the civil forfeiture action, and in August 1990, the court entered a default judgment.

1.

We begin our evaluation of this double jeopardy claim by noting that Mr. Penny failed to raise this issue in the district court. We therefore must determine, as an initial matter, whether Mr. Penny waived his right to object. In United States v. Buonomo, 441 F.2d 922, 924 (7th Cir.), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971), we stated that "[c]onstitutional immunity from double jeopardy is a personal right which if not affirmatively...

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