874 F.2d 1145 (7th Cir. 1989), 88-1259, United States v. Douglas

Docket Nº88-1259, 88-1260, 88-1333 and 88-2775.
Citation874 F.2d 1145
Party NameUNITED STATES of America, Plaintiff-Appellee, v. James DOUGLAS, Martin L. Pruitt, Leon Mason, Defendants-Appellants.
Case DateApril 21, 1989
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1145

874 F.2d 1145 (7th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

James DOUGLAS, Martin L. Pruitt, Leon Mason, Defendants-Appellants.

Nos. 88-1259, 88-1260, 88-1333 and 88-2775.

United States Court of Appeals, Seventh Circuit

April 21, 1989

Argued Nov. 1, 1988.

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[Copyrighted Material Omitted]

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James Evans, Evans & Froehlich, Champaign, Ill., Julie H. Friedman, Chicago, Ill., Michael J. Higgins, Willowbrook, Ill., for defendants-appellants.

Frances C. Hulin, U.S. Atty's Office, Danville, Ill., for plaintiff-appellee.

Before WOOD, Jr., EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge. [*]

HARLINGTON WOOD, Jr., Circuit Judge.

A jury, for the second time, convicted James Douglas, Leon Mason, and Martin Pruitt of conspiracy to possess with intent to distribute and to distribute heroin and cocaine in violation of 21 U.S.C. Sec. 846. On appeal all three challenge their convictions, alleging violation of the Double Jeopardy Clause of the Fifth Amendment and numerous trial court errors. We affirm all three convictions.

I. FACTS

Although this case involves only a "street-level" drug distribution conspiracy, the facts are somewhat complicated, particularly in light of its procedural history. We therefore recount only minimal factual details, providing further elaboration as the need arises.

On June 2, 1986, a jury convicted Douglas, Mason and Pruitt, along with James Anderson and Cindy Klaman, 1 of conspiracy to possess with intent to distribute and to distribute heroin and cocaine. Those convictions arose out of the same set of operative facts that gave rise to the convictions now on appeal. The defendants and Anderson appealed their first convictions to this court, and on May 6, 1987 we vacated their convictions and remanded the case for

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a new trial. 2 United States v. Douglas, 818 F.2d 1317 (7th Cir.1987) (Douglas I ).

The defendants and Anderson were retried, before a jury, and again found guilty on September 25, 1987. Douglas and Mason were sentenced to fifteen years custody, Pruitt to nine years--the same sentences which were imposed after their original convictions. 3 This appeal arises out of these reconvictions.

Although there was some variation in evidentiary detail between the defendants' first trial and their second, the essential facts remained constant. The key members of the charged conspiracy consisted of Jose "KiKi" Castro, a long-time distributor of cocaine and heroin in the Chicago area; Herman Franklin, a Chicago resident and heroin addict who had formerly lived in Danville, Illinois and was a daily customer of Castro; Junior Ray Duckworth, originally a Danville customer of Castro who later moved to Chicago and became a key player in Castro's drug distribution operation; and the defendants, who were the alleged conduits through which Castro distributed heroin and cocaine in the Danville area. 4

Franklin introduced Duckworth, Anderson and Mason to Castro between the fall of 1983 and the summer of 1984, the time period covered by the charged conspiracy. Anderson in turn introduced Douglas to Castro during the same time period. Pruitt apparently became involved in the conspiracy through Duckworth. On multiple occasions, Douglas, Mason and Pruitt separately purchased one-half to one ounce quantities of cocaine and heroin from Castro and/or Duckworth. Most of these transactions were at least partially on credit.

The procedure involved taking the drugs on credit, with payment to be made at the time of the next pickup or delivery. Mason and Douglas bought from Castro in Chicago, making trips to his home, with only one to two weeks between trips. Eventually Mason and Douglas stopped coming to Castro's home, and Castro began making trips to Danville, both to collect the money Mason and Douglas owed and to deliver drugs to other buyers. It was on these trips to Danville that Pruitt bought drugs from Castro and Duckworth at Pruitt's mobile home in Danville. The conspiracy crumbled not long after these trips began when Castro and Duckworth were arrested for selling cocaine to an undercover drug agent from the Danville Metropolitan Enforcement Group (MEG).

It was never alleged or proven at trial that Douglas, Mason and Pruitt knew each other or had any drug dealing business with each other. Their only proven relationship to one another was that they each were buying drugs on credit from Castro, or owed Castro money for drugs bought on credit, during roughly the same time period. Further, there was no direct evidence that Douglas, Mason or Pruitt actually distributed the drugs they bought from Castro. There was evidence, however, that during the time these defendants were buying drugs on credit from Castro, Douglas sold drugs and gave drugs away as a quid pro quo, Mason offered a woman money to hold "packages" for him and later threatened her unless she paid him for a "package"

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she no longer had, and Pruitt indicated to Duckworth that he could "get rid of" the cocaine Castro was providing.

The defendants contend that these facts, adduced at both trials, prove only the existence of a mere buyer-seller relationship between each of them and Castro, and that such evidence is insufficient to support their convictions of conspiring to possess with intent to distribute and to distribute cocaine and heroin. The defendants raised this same issue on their first appeal but we declined to address it, even upon a petition for rehearing, vacating the original convictions instead on the basis of an error in the jury instructions. Our failure to address this issue on the first appeal forms the basis of the defendants' double jeopardy claim.

II. ANALYSIS

Double Jeopardy

Only Mason and Pruitt challenge their convictions at the second trial on the basis of double jeopardy. Their argument is essentially this: On appeal from their first convictions each claimed that the trial judge erred in refusing to give a jury instruction stating the defendants' theory of defense, and as a matter of law, the government presented insufficient evidence to support the defendants' convictions. This court held in favor of the defendants on the jury instruction issue, vacated their convictions, and remanded for a new trial. Douglas I, 818 F.2d 1317. We declined to rule on the sufficiency of the evidence claim. Id. at 1320 n. 2. The defendants filed a motion requesting that the court decide the sufficiency question; we construed this motion as a petition for rehearing and denied it. Defendants were thereafter retried and convicted. The defendants claim that we were required to address the sufficiency of the evidence on the first appeal, and that our failure to do so subjected them to double jeopardy in violation of the Fifth Amendment.

This court has never directly addressed the question of whether the Double Jeopardy Clause requires us to review the sufficiency of evidence offered at trial when a defendant raises the issue on appeal. A number of other circuits have held that a reviewing court cannot refuse to address a defendant's challenge to the sufficiency of the evidence offered at trial. See, e.g., Vogel v. Commonwealth of Pennsylvania, 790 F.2d 368, 376 (3d Cir.1986); United States v. Hodges, 770 F.2d 1475, 1477 (9th Cir.1985); United States v. Bibbero, 749 F.2d 581, 585-87 (9th Cir.1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed.2d 847 (1985); United States v. Morris, 612 F.2d 483, 492 (10th Cir.1979).

These decisions are based primarily upon a broad reading of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Burks, the Supreme Court explained and modified the rule established in United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), that the Double Jeopardy Clause does not bar retrial of a defendant who succeeds in having a conviction set aside on appeal. After tracing the Double Jeopardy Clause's somewhat tortured and inconsistent history, the Court in Burks limited the Ball rule to cases where the reversal of conviction is based upon trial error. Burks, 437 U.S. at 14-15, 98 S.Ct. at 2148-49. Where a defendant obtains a reversal on the basis of evidentiary insufficiency, however, the Double Jeopardy Clause does bar retrial. Id. at 18, 98 S.Ct. at 2150-51.

The Court explained Burks most recently in Lockhart v. Nelson, --- U.S. ----, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988):

Burks was based on the view that an appellate court's reversal for insufficiency of the evidence is in effect a determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury. Because the Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for the same offense, it ought to do the same for the defendant who obtains an appellate determination that the trial court should have entered a judgment of acquittal.

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Lockhart, 109 S.Ct. at 290 (emphasis in original; citations omitted). In other words, "a reversal on the insufficiency of the evidence ... is the constitutional equivalent of an acquittal" barring retrial under the Double Jeopardy Clause. Webster v. Duckworth, 767 F.2d 1206, 1214 (7th Cir.1985),cert. denied, 475 U.S. 1032, 106 S.Ct. 1242, 89 L.Ed.2d 350 (1986).

Mason and Pruitt would have us read into this rule a requirement that whenever a defendant challenges a conviction upon the grounds of insufficient evidence, a reviewing court must address that issue. The Supreme Court, however, has never held that a reviewing court must review the sufficiency of the evidence whenever a defendant raises the issue on appeal. In fact, the Court held in Richardson v. United States, 468 U.S. 317, 323, 104 S.Ct. 3081, 3084-85, 82 L.Ed.2d 242 (1984), that...

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