U.S. v. Larkins
| Decision Date | 01 July 1996 |
| Docket Number | No. 95-2103,95-2103 |
| Citation | 83 F.3d 162 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank Lars LARKINS, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 94 CR 126--John D. Tinder, Judge.
Victoria Ursulskis (argued), Office of U.S. Atty., Indianapolis, IN, for plaintiff-appellee.
Daniel E. Radakovich (argued), Chicago, IL, for defendant-appellant.
Before ESCHBACH, FLAUM, and MANION, Circuit Judges.
Defendant Frank Larkins was convicted by a jury on both counts of a two-count indictment. Count I charged him with conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count II charged him with carrying a firearm during drug trafficking, in violation of 18 U.S.C. § 924(c)(1). The district court sentenced him to 80 months' imprisonment on count I and 60 months' imprisonment on count II. The imprisonment on count II was to be served consecutively to the 80 months imposed on count I. Defendant appeals his convictions and his sentence. We affirm.
In August of 1994, a confidential informant told the members of the Lake County Drug Task Force ("Lake County") that an individual named Ricki McClendon wanted to purchase kilogram quantities of cocaine. In response to the confidential informant's information, Lake County formulated a reverse sting plan. Pursuant to this reverse sting, the informant told McClendon that he and a friend had "ripped off" that friend's brother for an unstated amount of cocaine. The pilfered cocaine was offered at a discounted price of $11,000 per kilogram because of the theft and because the informant and his confidant needed money as quickly as possible. The normal market price for a kilogram of cocaine was between $20,000 and $29,000.
Lake County contacted the Drug Enforcement Agency ("DEA") and the Indianapolis Police because McClendon wanted the transaction to take place in Indianapolis rather than in Lake County. The participants agreed that the transaction would take place on August 31, 1994. The law enforcement officials secured two rooms at the Indianapolis Airport Days Inn hotel for the transaction and for surveillance of the transaction. Surveillance of the transaction included video and audio equipment to monitor the suspects' activities, officers inside and outside the hotel, and an undercover Indianapolis Police Officer, J.T. Jones, who played the role of the informant's confidant. Lake County brought three kilograms of cocaine to be displayed to McClendon during the sale process if necessary.
McClendon arrived with two vans, one tan and one maroon. McClendon rode in the maroon van that was driven by defendant Frank Lars Larkins, Jr. Larkins remained in the maroon van until the time of his arrest. McClendon proceeded to the hotel room and told Jones and the informant that the money for the deal was in one of the vehicles. McClendon also disclosed that he had brought three individuals and some weapons with him.
During the course of the meeting, McClendon requested that the informant accompany him to a vehicle to count the money. McClendon and the informant exited the hotel room and entered the maroon van. Larkins and McClendon sat in the front seats while the informant sat in the back seat. The informant found a scale and a brown paper bag containing the buy money on the back seat. While in Larkins's van, the informant conversed with Larkins and McClendon. During the conversation Larkins handled a weapon located between the two front seats. Larkins offered the weapon to the informant as a sign of trust. The informant was wearing a wire and the conversation was recorded on an audio tape. The conversation consisted of informal discussions meant to ease the situation--that is, that everything was "cool" and that Larkins and McClendon were not going to rob or rip off the informant.
The dialogue in the van lasted approximately five minutes. McClendon and the informant then went back into the hotel. When they arrived at the hotel room, McClendon indicated to Jones and the informant that he had enough money to purchase only two kilograms of cocaine. McClendon proposed that he take delivery of the two kilograms immediately and that Jones and the informant accompany him to a sale that same day. McClendon would sell the two kilograms of cocaine to a customer that McClendon had already lined up. McClendon would then pay Jones additional money for additional kilograms of cocaine.
McClendon and the informant then returned to Larkins's van. While waiting for Jones to meet them, McClendon, the informant, and Larkins had a second conversation. Larkins tried to reassure the informant that he and McClendon were "cool," that they were not the police, and that the only way people get caught is if someone knows what's going on.
Shortly thereafter the police arrested Larkins and McClendon and found two loaded handguns, a paper bag containing $25,682.00, and a digital scale. The police then learned that the maroon van driven by Larkins was registered to Larkins. The tan van was registered to McClendon's father.
During a hearing before the trial, Larkins asked the district court to exclude the audio tapes of the various conversations because they were not intelligible or understandable. The court reviewed the tapes and found them intelligible and understandable and, therefore, admissible subject to normal foundational objections. At Larkins's trial, the court allowed the United States to play the tapes of the police surveillance. The court also permitted the United States to play tapes of telephone conversations between the informant, McClendon and an unknown third party made prior to the August 31, 1994, meeting.
At the conclusion of the evidence, the district court discussed its proposed jury instructions with the defendant and the United States. Larkins reviewed the jury instructions, but did not object to them. The jury convicted Larkins of both counts of the indictment. At sentencing, a presentence report was prepared and provided to Larkins. The court then announced its tentative sentence and gave both parties an opportunity to object. Larkins did not object.
Larkins appeals his conviction on a number of grounds. Larkins presses hardest his challenge to the sufficiency of the evidence. In particular, he argues that the evidence failed to establish his agreement to participate in the distribution of the cocaine. We review a challenge to the sufficiency of the evidence to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt when the evidence is viewed in the light most favorable to the government. United States v. Monroe, 73 F.3d 129, 131 (7th Cir.1995). Larkins bears a very heavy burden in challenging the sufficiency of the evidence with regard to his participation in a conspiracy. United States v. Pulido, 69 F.3d 192, 205 (7th Cir.1995).
We have noted many times that a conspiracy is "a confederation of two or more persons formed for the purpose of committing, by their joint efforts, a criminal act." Id. at 206 (quoting United States v Campbell, 985 F.2d 341, 344-45 (7th Cir.1993) (citations omitted)). In order to sustain a conspiracy conviction, the government must provide substantial evidence that a conspiracy existed and that the defendant knowingly agreed to join that conspiracy. United States v. Carson, 9 F.3d 576, 587 (7th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 135, 130 L.Ed.2d 77 (1994). The government may establish each element of a conspiracy through circumstantial evidence. United States v. Edwards, 77 F.3d 968, 974 (7th Cir.1996). With respect to the first element, an agreement, the government need not establish a formal agreement to conspire. United States v. Hickok, 77 F.3d 992, 1005 (7th Cir.1996). The jury properly may find an agreement to conspire based upon "circumstantial evidence and reasonable inferences drawn therefrom concerning the relationship of the parties, their overt acts, and the totality of their conduct." Id. (quoting United States v. Mojica, 984 F.2d 1426, 1432 (7th Cir.), cert. denied, Castaneda v. United States, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993)).
The government marshals several facts in support of its position that the evidence established a conspiracy to distribute cocaine. First, McClendon arrived at the Days Inn with two vans, but he rode in the van owned and driven by Larkins. It is reasonable to infer that Larkins knew of the plan to acquire cocaine for distribution because McClendon did not need Larkins to drive him and he did not ride in Larkins's van out of necessity. McClendon could have ridden in the other van. Second, McClendon consistently referred to "my boys" who were outside in the "two vans" during his discussion with the confidential informant. The jury reasonably could infer from this that Larkins was one of McClendon's "boys" and that he was in on the conspiracy. Third, Larkins controlled the van containing over $25,000, two loaded handguns, and a digital scale. Fourth, Larkins carried on several conversations with the confidential informant regarding the drug transaction, urging everyone to be "cool." Larkins stated: During one of these conversations, Larkins watched the informant count the money and Larkins pushed a weapon toward the informant to garner the informant's trust and to establish his and McClendon's trustworthiness. This evidence is more than sufficient to establish an agreement between Larkins and McClendon.
There is also sufficient evidence to establish that the agreement between Larkins and McClendon encompassed plans to distribute...
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