799 F.3d 900 (7th Cir. 2015), 13-3715, United States v. Wilbourn

Docket Nº:13-3715 & 13-3727
Citation:799 F.3d 900
Opinion Judge:Manion, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRIAN WILBOURN and ADAM SANDERS, Defendants-Appellants
Attorney:For UNITED STATES OF AMERICA (13-3715, 13-3727), Plaintiff - Appellee: Stuart D. Fullerton, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL. For BRIAN WILBOURN, also known as STAY HIGH, also known as 3, Defendant - Appellant (13-3715): Leonard Goodman, Attorney, Melissa A. Matuzak, At...
Judge Panel:Before FLAUM, MANION, and HAMILTON, Circuit Judges.
Case Date:August 26, 2015
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 900

799 F.3d 900 (7th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

BRIAN WILBOURN and ADAM SANDERS, Defendants-Appellants

Nos. 13-3715 & 13-3727

United States Court of Appeals, Seventh Circuit

August 26, 2015

Argued: April 22, 2015.

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Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07-cr-00843 -- Joan Humphrey Lefkow, Judge.

For UNITED STATES OF AMERICA (13-3715, 13-3727), Plaintiff - Appellee: Stuart D. Fullerton, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For BRIAN WILBOURN, also known as STAY HIGH, also known as 3, Defendant - Appellant (13-3715): Leonard Goodman, Attorney, Melissa A. Matuzak, Attorney, LEN GOODMAN LAW OFFICE LLC, Chicago, IL.

For ADAM SANDERS, also known as REDMAN, Defendant - Appellant (13-3727): Michael Bernard Nash, Attorney, Chicago, IL.

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

OPINION

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Manion, Circuit Judge.

Over a decade ago, federal authorities conducted an investigation of the drug trade at the now-razed Cabrini-Green housing projects in Chicago. That investigation, which centered on a drug conspiracy headed by Rondell Freeman, yielded a thicket of defendants and charges spanning a period of almost nine years. Altogether, fifteen persons were charged, ten pleaded guilty, and five went to trial, including our defendants, Brian Wilbourn and Adam Sanders.

At trial, Wilbourn and Sanders conceded that they sold drugs at Cabrini-Green but claimed to do so as small-scale, independent dealers and not as part of Freeman's organization. The jury disagreed and convicted them of multiple charges, including participation in the conspiracy. Following the trial, the district court vacated and granted a new trial on several charges, including conspiracy, because the government secured those convictions through testimony that it had good reason to know was false. The government appealed, and we affirmed in United States v. Freeman, 650 F.3d 673 (7th Cir. 2011). On remand, the government elected not to go forward with the vacated counts, and the district court sentenced Wilbourn to 184 months and Sanders to 160 months on the undisturbed counts.

They have appealed and challenge several rulings of the district court. For the reasons that follow, we affirm each of the district court's rulings except for three: we reverse the court's denial of Sanders' motion to suppress and remand for a new trial Sanders' conviction under Count 32; we likewise vacate Wilbourn's conviction under Count 4 and remand it for a new trial; and we vacate Wilbourn's sentence and remand his case to the district court to make new findings regarding the applicable drug quantity.

I. Background

Brian Wilbourn, Adam Sanders, and thirteen others were charged with participating in a conspiracy to manufacture and distribute narcotics and various related offenses. We covered extensively the details of the government's case in Freeman and recount here only those facts necessary to understand the issues relevant to this appeal. In short, the government alleged that the defendants, with Rondell Freeman serving as the ringleader, formed a conspiracy to sell narcotics at the Cabrini-Green housing project in Chicago. The conspiracy involved approximately fifteen persons and ran from 1998 until at least December 2007.

The government presented a bold case over the course of the five-week trial. Utilizing video and audio clips, testimony from informants, and evidence culled from garbage pulls, the government contended that Wilbourn and Sanders served in leadership roles in Freeman's conspiracy and not as small-time, independent drug dealers, as they claimed in defense. For the most part, the jury accepted the government's case and convicted both Wilbourn and Sanders on multiple counts, including conspiracy.

What the jury did not know, however, was that a significant aspect of the testimony of Seneca Williams--one of the government's

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key witnesses--was false. Williams had testified that Wilbourn played a prominent role in the conspiracy and that he frequently witnessed him engaging in drug trafficking activities at Freeman's penthouse apartment. The problem with Williams' testimony was that the penthouse apartment was only used during 2003 and Wilbourn could not have been present because he was in jail for the whole of that year. Still more problematic, the government elicited this testimony (and argued a variation of it in closing argument) even after the defense counsel had presented it with reliable information demonstrating that Wilbourn spent the whole of 2003 in jail and so could not have been present.

After the trial, the district court partially granted the defendants' motion for a new trial and vacated several counts against Wilbourn and Sanders, including the conspiracy. We affirmed and remanded the vacated counts for a new trial. Freeman, 650 F.3d at 683-84. On remand, the government elected not to go forward with the vacated counts and the district court proceeded to sentence the defendants on the undisturbed counts.

Wilbourn received a 184-month sentence (reduced from 200 months) based on his convictions on five counts: possession with intent to distribute narcotics (Counts 3, 12 and 13; 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2); using a telephone to facilitate a conspiracy (Count 4 or " phone count" ; 21 U.S.C. § 843(b)); and being a felon in possession of a firearm (Count 7; 18 U.S.C. § 922(g)(1)).

Sanders received a 160-month sentence for his convictions on five counts: using a telephone to facilitate a conspiracy (Counts 19, 20, 21, and 30 or " phone counts" ; 21 U.S.C. § 843(b)) and possession with intent to distribute narcotics (Count 32; 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2).

The appeal addresses five discrete issues: (1) whether drugs seized from a car in which Sanders was a passenger should have been suppressed; (2) whether the phone counts should be vacated where they are premised on a drug conspiracy that has been dismissed; (3) whether the district court correctly handled premature jury deliberations; (4) whether the district court should have granted a mistrial where the government entered evidence against Wilbourn after it had rested its case against him; and, (5) whether the court erred in sentencing Wilbourn based on relevant conduct.

We address the facts relevant to each of these issues.

A. Car Search

Throughout the investigation, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) maintained surveillance on Freeman's residence at Sheridan Road in Chicago. During their surveillance, which eventually included a wiretap of Freeman's telephone lines, the agents gathered evidence of drug trafficking conducted at the Sheridan Road residence by numerous individuals. Over a period covering almost two years, the police conducted more than a dozen trash pulls and recovered plastic baggies containing the residue of various narcotics that resembled bags discarded by Freeman's associates. Agents also observed Sanders enter Freeman's Sheridan Road residence and intercepted various calls between Freeman, Sanders, and other defendants.

On November 13, 2006, the ATF agents observed a Dodge Intrepid registered to Wilbourn's mother parked in a lot outside Freeman's Sheridan Road residence. At approximately 8:40 p.m., three black males, one resembling Wilbourn, got into the Dodge. The agents surveilled the automobile

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as it drove to a nearby gas station and pulled up next to a maroon Buick registered to a co-defendant named McClatchey. Chicago Police Officer Pat Munyon, who was assisting the surveillance operation, pulled in behind the Buick in the gas station. From his vantage point, he observed a black male exit the back seat of the Buick, approach the Dodge, and lean into the front passenger side. He remained there for approximately ten seconds before returning to the Buick. Officer Munyon did not record observing any drugs during this exchange.

The Buick left the gas station and travelled west for several blocks before it was stopped by Chicago police officers Jason Schoenecker and Michael Corlett. The officers observed two females sitting in the front seat and a male passenger in the back seat and instructed the male passenger to exit the vehicle. Recognizing the passenger as Adam Sanders, the police officers placed Sanders in the back seat of the police vehicle. The officers then searched the back seat area and smelled a strong odor of crack cocaine. Searching underneath the front passenger seat, they recovered a black plastic bag which contained several hundred smaller baggies, each of which, in turn, contained a rock of crack cocaine. One of those smaller baggies contained a larger, 18-gram rock, while the others contained less than a gram. A number of the baggies bore the orange and white marking (120 baggies total) associated with drugs sold by Wilbourn, while others carried the blue-devil marking (404 total) associated with Freeman. Laboratory analysis of the bags verified that the individual crack rocks contained approximately 77 grams of cocaine base.

Four days after the stop, ATF Special Agent Edward Piacenza prepared a report of the incident that incorporated the account of the event given to him by Officer Schoenecker. This report described the incident as a traffic stop but failed to provide any details about a traffic violation or questioning of the driver related to a traffic incident. The report went on to describe the search conducted by Officers Schoenecker and Corlett and the seizure of the...

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