U.S. v. Atterson, s. 89-2157

• Citation: 926 F.2d 649
• Decision Date: 25 February 1991
• Docket Number: Nos. 89-2157,89-2158,89-2159,89-2160 and 89-2256,s. 89-2157
• Parties: 32 Fed. R. Evid. Serv. 379 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Timothy ATTERSON, Defendant-Appellant, Cross-Appellee, Sarah McCoy, Stephen Mike Randall, Juan Manuel Laurelez, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 649

926 F.2d 649

32 Fed. R. Evid. Serv. 379

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Timothy ATTERSON, Defendant-Appellant, Cross-Appellee, Sarah McCoy, Stephen Mike Randall, Juan Manuel Laurelez,

Defendants-Appellants.

Nos. 89-2157, 89-2158, 89-2159, 89-2160 and 89-2256.

United States Court of Appeals, Seventh Circuit.

Argued April 11, 1990.

Decided Feb. 25, 1991.

Frances C. Hulin, Richard N. Cox, Asst. U.S. Attys., Danville, Ill., for U.S.

J. Steven Beckett, Beckett & Crewell, Champaign, Ill., for Timothy C. Atterson and Sarah L. McCoy.

Traci Nally-Harris, Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, Champaign, Ill., for Juan M. Laurelez.

Arthur M. Lerner, Lerner & Kirchner, Champaign, Ill., for Stephen M. Randall.

Before WOOD, Jr., EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Three of the four defendants in these consolidated appeals challenge their drug-related convictions. The fourth defendant, Timothy Atterson, appeals only from his sentence. The government cross-appeals from the district court's refusal to increase Atterson's guideline offense level for possession of a firearm during the commission of a drug offense. As the defendants raise only one common issue on appeal, we will address each defendant's appeal separately prior to addressing the issue raised in the government's cross-appeal.

1. FACTUAL BACKGROUND

Timothy Atterson, a resident of Mahomet, Illinois, traveled to and from Tucson Arizona ten times between September, 1987 and May, 1988. He typically flew into and out of Lambert Airport, located in St. Louis, Missouri, for those trips. On one occasion, he and his girlfriend, co-defendant Sarah L. McCoy (now Mrs. Atterson), drove to Arizona in late January, 1988, for a two-week period. Law enforcement agents from Illinois, Missouri, and Arizona conducted surveillance in connection with four of Atterson's Arizona trips. This surveillance established the following facts.

On December 18, 1987, Atterson loaded two large blue suitcases into the trunk of his automobile, drove from his home to Lambert Airport, and departed on a flight bound for Tucson. Upon arriving in Tucson, Atterson drove to co-defendant Juan Manuel Laurelez' home. Atterson returned to Lambert Airport on December 21, 1987. A narcotics detection dog reacted to both of Atterson's suitcases in the baggage handling area.

Atterson retrieved the suitcases without incident, loaded them into the trunk of his car, drove the car to Urbana, Illinois, and pulled up to a shed rented by co-defendant Stephen Mike Randall. He and Randall chatted briefly outside the shed. Shortly thereafter, Atterson got back into his car and drove off. He returned to the shed later that same evening. At that time, Atterson removed a "pillow-shaped" object from his car and carried the object into the shed. Approximately one hour later, Atterson emerged from the shed carrying a large shopping bag.

On April 5, 1988, agents again observed Atterson as he returned to Lambert Airport on a flight from Tucson. This time he claimed his two large blue suitcases, loaded them into the trunk of his car, and drove from the airport to West Terre Haute, Indiana. At that point, agents lost sight of his car. Several hours later, Atterson was seen driving up to Randall's home and pulling his car into a shed located on Randall's property. ¹ Atterson backed his car out of the shed approximately twenty-five minutes later and drove home. On April 25, 1990, Atterson was again seen returning to Lambert Airport from Tucson. He was followed from the airport to the Terre Haute, Indiana area where agents once again lost sight of his car.

This familiar sequence of events occurred once more beginning on May 17, 1988. Atterson was seen placing his two blue suitcases in the trunk of his car and leaving his home for the airport whereupon he boarded a flight bound for Tucson. He returned to the airport two days later, on May 19, 1988, retrieved his suitcases, and drove directly to Randall's home. Upon arriving there, Atterson drove his car into Randall's shed. Approximately one hour later, Atterson backed his car out of the shed and drove home.

After Atterson departed, agents executed search warrants at Randall's home and shed. Three large plastic bags, each containing trash compactor bags which in turn contained approximately thirty pounds of marijuana, were seized from the shed. Laurelez' palmprint was lifted from one of the compactor bags. Agents also seized a bag containing a triple-beam balance scale, boxes of clear plastic bags, and twist-ties from the shed. The search of Randall's mobile home led to the seizure of cash totalling $1,050.00 from a bedroom dresser drawer, and an additional $1,910.00 in cash and records pertaining to marijuana sales from a safe found in the bedroom.

Later that same evening, agents executed search warrants at Atterson's home and car. The two large blue suitcases were taken from the trunk of Atterson's car, opened, and found to be virtually empty. Two Western Union receipts, representing cash transfers from Atterson to Laurelez, were also confiscated from the car. The search of Atterson's home, which he had shared with Sarah McCoy since 1981, resulted in the seizure of 894 grams of marijuana, a triple-beam scale, two additional Western Union receipts, ten $100 bills, and a notebook recording drug transactions. Agents also found two Western Union receipts, representing cash transfers from McCoy to Laurelez, in McCoy's purse along with an address book containing Laurelez' and Randall's home telephone numbers.

Following a jury trial, each defendant was convicted of conspiracy to distribute in excess of 100 kilograms of marijuana. Stephen Mike Randall was also convicted of possession with intent to distribute marijuana. Sarah McCoy was convicted of possession of marijuana; interstate travel in aid of racketeering; and money laundering. Juan Manual Laurelez was convicted of possession with intent to distribute marijuana and money laundering. Timothy Atterson was convicted of possession with intent to distribute marijuana; interstate travel in aid of racketeering; and money laundering. Each was sentenced under the United States Sentencing Guidelines ("Guidelines").

2. ANALYSIS

Before turning to the issues raised separately by each defendant, we address the only common issue presented by these consolidated appeals. Jointly, the defendants challenge the sufficiency of the evidence with respect to the 100 kilograms (220 pounds) of marijuana found to have been involved in the conspiracy. They each concede that a favorable ruling on this issue would impact only on their sentences.

Recent decisions of this circuit clearly hold that the amount of the controlled substance involved in an offense is not an essential element of that offense which the government must prove beyond a reasonable doubt. Rather, the district judge must resolve the quantity issue at sentencing. See United States v. Reynolds, 900 F.2d 1000, 1003-04 (7th Cir.1990); United States v. Ocampo, 890 F.2d 1363, 1372-73 (7th Cir.1989). The district court's finding as to the amount of the controlled substance involved in the offense is a factual finding invoking a "clear error" standard of review. Id. Applying that standard to the facts before us, we find that there is ample evidence in the record to support the district judge's finding that the defendants conspired to distribute over 100 kilograms of marijuana. Indeed, the jury determined that the government, although not required to do so, had established the existence of this quantity beyond a reasonable doubt.

At trial, the government submitted evidence demonstrating that Atterson had travelled to Tucson at least ten times within a nine-month period. Each of those trips, with one exception, were for five-day periods or less. Law enforcement officials set up surveillance in connection with four of those trips. On each occasion, Atterson travelled to and from Arizona with two large suitcases in tow. A narcotics detection trained dog reacted to both suitcases upon Atterson's return from one of these trips. Financial records introduced at trial revealed that Atterson, during the same period of time, spent almost $40,000 more than he could account for. Finally, bank and Western Union records revealed that during the relevant period of time, Atterson and McCoy had transferred funds totalling $64,036 to Laurelez and his wife. That evidence, coupled with the inference that at least thirty pounds of marijuana was involved on each trip, unquestionably supports the district court's finding that the conspiracy involved an intent to distribute in excess of 100 kilograms of marijuana. We thus reject this challenge to the sentences imposed by the district court and turn to the issues raised by each defendant's appeal.

A. Stephen Mike Randall

As noted previously, Stephen Mike Randall was convicted of possession with intent to distribute approximately thirty pounds of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), in addition to his conspiracy conviction. Randall, however, challenges only the conspiracy conviction, contending that the evidence at trial was insufficient to link him to the conspiracy.

Randall's burden of supporting a challenge directed to the sufficiency of the evidence is formidable as we must affirm so long as "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Penson, 896 F.2d 1087, 1093 (7th Cir.1990). In making this determination, we look to all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the government. We must affirm unless the record is barren of any evidence, regardless of its weight, from which the trier of fact could find guilt beyond a reasonable doubt. United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988), cert. denied, 488 U.S....