U.S. v. Weaver

• Decision Date: 08 September 1989
• Docket Number: 88-1572,88-1437,88-1579 and 88-1595,Nos. 88-1179,s. 88-1179
• Citation: 882 F.2d 1128
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry WEAVER and Mark Schmanke, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Everett DECKER, Jerald Jessup and Michael Bailey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1128

882 F.2d 1128

UNITED STATES of America, Plaintiff-Appellee, v. Larry WEAVER and Mark Schmanke, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Everett DECKER, Jerald Jessup and Michael Bailey,

Defendants-Appellants.

Nos. 88-1179, 88-1437, 88-1572, 88-1579 and 88-1595.

United States Court of Appeals, Seventh Circuit.

Argued May 15 and June 12, 1989.

Decided Aug. 8, 1989.

As Amended Aug. 11, and Sept. 8, 1989.

James G. Richmond, U.S. Atty., Hammond, Ind., Richard A. Cook, Asst. U.S. Atty., South Bend, Ind., for U.S.

James M. Miller, Mirkin, Tuesley & Miller, South Bend, Ind., for Larry Weaver.

Christopher C. Myers, Myers & Wagoner, Fort Wayne, Ind., for Mark Schmanke.

Paul J. Newman, South Bend, Ind., for Everett Decker.

Bradley E. Prendergast, Hall & Kurz, Chicago, Ill., for Jerald Jessup.

Robert C. Rosenfeld, South Bend, Ind., for Michael Bailey.

Before BAUER, Chief Judge, CUMMINGS and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This case involves the appeals of five defendants found guilty by a jury of participating in various parts of a widespread scheme to alter and cash postal money orders. Each of the defendants raise different objections to their convictions. We affirm.

I.

The defendants in these consolidated cases are five of twenty-two persons indicted in connection with a conspiracy to alter and cash postal money orders. ¹ The conspiracy was centered in the Indiana State Penitentiary located at Michigan City. Some inmates at the prison arranged with various individuals outside the prison to have small denomination postal money orders, usually in the $1-3 range, smuggled into the prison. Inside the prison, the money orders were altered to much larger denominations, usually $100-300, and then smuggled back outside the prison where they were cashed. Some of the individuals who cashed the money orders were aware of the scheme while others participated on the assumption that the money orders were legitimate. The proceeds from the altered money orders were either used to pay inmate debts outside the prison or made their way back into the prison, in the form of drugs or cash, to be divided among the participating inmates. At this point, the cases of the five defendants diverge and, thus, we will treat them individually.

II.

A. Michael Bailey

Bailey was an inmate at the Michigan City prison. He was charged with one count of conspiracy (Count 1), a count common to all of the defendants, in violation of 18 U.S.C. Sec. 371, one count of possession of false and altered money orders (Count 159), in violation of 18 U.S.C. Sec. 1002, two counts of aiding and abetting transmission and presentment of altered money orders (Counts 127 and 134), in violation of 18 U.S.C. Secs. 2 and 500, and seventeen counts of aiding and abetting mail fraud (Counts 126, 128-33, 135-39, 154, 169, 174-75, and 178), in violation of 18 U.S.C. Secs. 2 and 1341. The jury found him guilty on all of these counts and the court sentenced him to a total of 25 years imprisonment, the sentence to run consecutive to the Indiana state sentence he is currently serving.

Bailey's first claim on appeal is that the charges against him should have been dismissed because the government violated the Interstate Agreement on Detainers (the "Agreement"). The Agreement, to which Indiana and the United States are both signatories, provides a comprehensive set of procedures to deal with the disruptions and uncertainties that arise when a "detainer[ ] based on untried indictments, informations, or complaints" is lodged against a prisoner already incarcerated in another jurisdiction. United States v. Mauro, 436 U.S. 340, 351, 98 S.Ct. 1834, 1842, 56 L.Ed.2d 329 (1978). Bailey apparently claims that the charges against him should have been dismissed because the government violated two provisions of the Agreement.

First, Bailey claims that the government failed to abide by Article IV(c) of the Agreement, which requires that proceedings made possible by the agreement take place within 120 days of the arrival of the prisoner in the charging state. Bailey was arraigned on September 14, 1987, and was not tried until January 19, 1988, 127 days later. Second, Bailey alleges that the government violated Article III(c) of the Agreement, which mandates that the warden promptly notify the prisoner of the source and contents of the detainer and also advise the prisoner of his rights under the Agreement.

A necessary prerequisite to the operation of the Agreement is that a detainer has actually been lodged by the charging state with the jurisdiction in which the prisoner is held. Mauro, 436 U.S. at 343, 98 S.Ct. at 1838; United States v. Bamman, 737 F.2d 413, 415 (4th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985). The Agreement itself does not define a detainer so courts have adopted the definition found in the House and Senate reports accompanying the Agreement. See United States v. Trammel, 813 F.2d 946, 948 (7th Cir.1987); Bamman, 737 F.2d at 415. According to those reports, a detainer is "a notification filed with the institution in which a prisoner is serving a sentence advising that he is wanted to face pending criminal charges in another jurisdiction." H.R.Rep. No. 1018, 91st Cong., 2d. Sess. 2 (1970); S.Rep. No. 91-1356, 91st Cong., 2d. Sess. 2, reprinted in, 1970 U.S.Code Cong. & Admin.News 4864, 4865. In this case, the district court held that the provisions of the Agreement were not applicable because no detainer was actually filed. We agree.

Bailey supports his claim that a detainer was filed against him principally with his own testimony. He testified that in September 1987, he was taken out of the general prison population by Indiana prison personnel and placed in administrative segregation for approximately 23 days. Bailey asserts that when he inquired why he was placed in segregation, he was told by prison officials that it was at the behest of postal inspectors. Nevertheless, Bailey also testified that the only documentation he ever saw supporting his segregation was a pink "101" slip, the slip used to document a violation of internal prison rules. Finally, Bailey points out that United States Postal Inspector Egan, the official who coordinated the mail order investigation at the prison, testified that he has the power to arrest and detain. From this evidence, Bailey claims that the government lodged a detainer against him prior to his placement in administrative segregation.

We agree with the district court that this evidence, without more, was insufficient to show that a detainer was filed. To show that a detainer has been "filed" there must be, at a minimum, proof that authorities from the charging jurisdiction notified the authorities where the prisoner is held that the prisoner is wanted to face charges. ² There is no proof in this case of any such communication. Bailey could identify neither the postal inspector who supposedly gave the order to have him placed in administrative segregation nor the Indiana prison official with whom he spoke. Also, while Inspector Egan admitted that he had the power to arrest and detain, there was no indication that he actually used that power in this case. Finally, the only document Bailey received was consistent with the government's position that Bailey was placed in segregation as a result of internal prison discipline. ³ In sum, Bailey has failed to show that his administrative segregation followed from a detainer, and thus he was not entitled to the protection of the Interstate Agreement on Detainers.

Bailey's second claim on appeal is that there was insufficient evidence to support his conviction on the charge of possessing altered money orders. Six money orders were found by prison personnel in the course of a search of Bailey's cell. At trial, Correctional Officer John Pegg, the officer who found the money orders in Bailey's cell, testified that the money orders were stained with purple blotches when he found them. Correctional Officer Charles Penfold, however, testified that the blotches were not originally on the money orders but were the product of ninhydrian, a chemical used to detect latent fingerprints. Penfold's testimony was corroborated by Postal Inspector Robert Thompson, who was responsible for sending the money orders to a laboratory for testing. Bailey claims that this discrepancy in testimony precluded his conviction on the possession charge.

A defendant who claims insufficient evidence exists to support his or her conviction carries a heavy burden. United States v. Muskovsky, 863 F.2d 1319, 1322 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1345, 103 L.Ed.2d 813 (1989). To be successful, the defendant must show that, viewing the evidence in the light most favorable to the government, no rational juror could have found all the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Field, 875 F.2d 130, 137 (7th Cir.1989). Bailey has not met his burden in this case.

Taken in the light most favorable to the government, a rational juror could have found that the defendant had committed all the elements of the crime beyond a reasonable doubt. All of the witnesses agreed that altered money orders were found in Bailey's cell. They also agreed that the denominations of the money orders produced at trial matched the denominations of those found in the cell. The only discrepancy was over the presence of the purple blotches. We believe that a rational juror could find that Officer Pegg was mistaken about the presence of the purple blotches and yet was correct in the balance of his testimony. Officer Pegg's testimony as to the blotches can be best characterized as equivocal. At times he appeared to be certain that the blotches were present when he discovered the money orders in Bailey's cell. On the other hand, when...