U.S. v. Thompson

• Decision Date: 18 September 1991
• Docket Number: Nos. 90-1305,90-1390,90-1391 and 90-2343,s. 90-1305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randolph THOMPSON, Terrius Wynn, Alcus Todd Thompson, and Donovan Dawes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1331

944 F.2d 1331

UNITED STATES of America, Plaintiff-Appellee, v. Randolph THOMPSON, Terrius Wynn, Alcus Todd Thompson, and Donovan Dawes, Defendants-Appellants.

Nos. 90-1305, 90-1390, 90-1391 and 90-2343.

United States Court of Appeals, Seventh Circuit.

Argued April 3, 1991.

Decided Sept. 18, 1991.

R. Jeffrey Wagner and Joseph R. Wall, Asst. U.S. Attys. (argued), Office of U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

David Lenefsky (argued), New York City, for defendant-appellant Randolph D. Thompson.

Thomas G. Halloran (argued), Milwaukee, Wis., for defendant-appellant Terrius Wynn.

Frederick F. Cohn (argued), Chicago, Ill., Gerald P. Boyle, Milwaukee, Wis., for defendant-appellant Alcus T. Thompson.

Paul Lazarus (argued), Bierman, Shohat & Loewy, Miami, Fla., for defendant-appellant Donovan Dawes.

Before FLAUM and RIPPLE, Circuit Judges, and MOODY, District Judge. ^*

FLAUM, Circuit Judge.

The convictions appealed in this case were the product of an investigation that centered on the drug trafficking activities of Todd Thompson. Assisted by co-defendant Terry Wynn and others, Thompson purchased cocaine from several sources in Los Angeles, including his cousin and co-defendant Randy Thompson and co-defendant Donovan Dawes, and distributed it from his home in Milwaukee. The appellants, along with several others, were indicted for conspiring to possess and distribute cocaine. Thompson and Dawes, along with Tony Weathers, a co-conspirator who pled guilty and testified at trial, were indicted in six counts for violating the Travel Act, 18 U.S.C. § 1952, by sponsoring the interstate travel of Chris Guddie and Jennifer Bailey, whom they employed as couriers to transport cash and cocaine between Milwaukee and Los Angeles. The same trio was charged with constructive possession of the four kilograms of cocaine Bailey was carrying when she was arrested on the return leg of a trip to Los Angeles in February 1989 and the two kilograms Guddie had with her when she was arrested after a trip in May 1989. The indictment also included five counts charging violations of 21 U.S.C. § 843(b) by using the telephone to facilitate drug offenses. Todd Thompson was named in each of these counts, and Dawes in three of them. In the final count of the indictment, Todd Thompson was charged with possessing a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c).

The appellants raise a host of challenges to their convictions. Donovan Dawes, along with Tony Weathers, Bailey, Guddie, and a number of others with whom Todd Thompson conducted drug-related business pled guilty to the charges against them. Dawes conditioned his plea, however, on his right to appeal denials of motions to suppress evidence and to dismiss the indictment. He maintains that the wiretap of Todd Thompson's home failed to satisfy statutory prerequisites of the federal electronic surveillance statute, 18 U.S.C. § 2518, and sought to suppress the evidence garnered from the wiretap (he also challenges the government's refusal to provide him with copies of all of the recordings it made by means of the tap). Dawes also seeks dismissal of the indictments against him, alleging that the government continued to use the grand jury as a means of collecting evidence against him even after he had been indicted. Randy Thompson and Terry Wynn both contest the sufficiency of the evidence supporting their conspiracy convictions, and each raises a number of individual issues as well. Randy claims that the district court erroneously failed to give necessary jury instructions and failed to inquire whether his waiver of his right to testify was made knowingly and intelligently. He also contests the district court's finding at sentencing that he warranted an enhancement under § 3B1.1 of the Sentencing Guidelines for being a supervisor of criminal activity; Todd Thompson appeals the enhancement he received under § 3B1.1 as an organizer of criminal activity. In addition to c the sufficiency of the evidence that he conspired to distribute cocaine, Wynn asserts that the district court based his sentence on drug trafficking activity not fairly attributable to him. Along with Todd Thompson, he also claims that he was unfairly prejudiced at trial when the district court revoked bail for the defendants near the close of the government's case. Wynn and Todd Thompson also object to the enhancement of their sentences for obstruction of justice. And finally, Todd Thompson appeals the consecutive five-year sentence he received for his firearms conviction, claiming that it violates the eighth amendment's prohibition of cruel and unusual punishment. We affirm the appellants' convictions and the sentences of Todd Thompson and Donovan Dawes, but vacate and remand the sentences of Randy Thompson and Terry Wynn.

I. Post-Indictment Use of the Grand Jury

Unlike his co-defendants, Donovan Dawes entered a plea agreement to the conspiracy charge conditioned on his right to appeal the district court's denial of his motions to suppress evidence and to dismiss the indictment. Dawes premised the motion to dismiss on his view that the government had abused the grand jury process by calling witnesses against him after he had already been indicted by the grand jury. "Once a defendant has been indicted, the government is precluded from using the grand jury for the 'sole or dominant purpose' of obtaining additional evidence against him." United States v. Moss, 756 F.2d 329, 332 (4th Cir.1985); see also United States v. Scott, 784 F.2d 787, 792 (7th Cir.), cert. denied, 476 U.S. 1145, 106 S.Ct. 2257, 90 L.Ed.2d 702 (1986). Dawes maintains that the government effectively used the grand jury, rather than the procedures required by the Federal Rules of Criminal Procedure, to conduct discovery into the charges already pending against him when it subpoenaed Jennifer Bailey and Kristina McHenry to testify before the grand jury. The government maintains that these witnesses were called before the grand jury as part of a continuing investigation into the activities of the conspiracy designed to uncover evidence of crimes not contained in the indictment.

The burden is on Dawes to show that the government's purpose was primarily to collect evidence relating to pending charges. Moss, 756 F.2d at 332. He has clearly failed to meet that burden with regard to McHenry's testimony. McHenry was a friend of Artaynia Demps, a woman who lived with Todd Thompson during much of the period Thompson was distributing cocaine. The prosecutors questioned her about her involvement with many of those associated with Todd Thompson, including Demps, Tony Weathers, Chris Guddie, and Terry Wynn. McHenry also testified about her contacts with Dawes, but the testimony did not relate to any specific acts for which Dawes had been indicted. He maintains that the government's questions went to his involvement with, and knowledge of, the conspiracy; we agree, but cannot say that he has shown that the government's purpose was to gather more evidence to implicate Dawes in the conspiracy rather than to determine whether McHenry could tell them if Dawes had committed any substantive crimes for which he had not yet been indicted. Were we to adopt Dawes' broad view, the government would be unable to return to the grand jury after obtaining a conspiracy indictment no matter how narrowly focused its interrogation; most substantive crimes committed during the course of a conspiracy also serve to further implicate the perpetrator in the conspiracy itself.

The questioning of Jennifer Bailey is more problematic. To be sure, Bailey was a witness who might have provided the government with additional information about substantive crimes committed by Dawes, Randy Thompson, or others, during the course of the conspiracy, so the prosecutors were entitled to bring her before the grand jury even after the indictments against the principal conspirators had issued. Nevertheless, we agree with Dawes' view that much of the Bailey's questioning related to her third trip to Los Angeles in February 1989 when she delivered cash to Dawes and returned to Milwaukee with a suitcase containing four kilograms of cocaine. Dawes had already been indicted for his involvement in these events (Count 5), and it is difficult to credit the government's position that its questions relating to this exchange were asked with an eye toward uncovering evidence of other transactions in which Dawes was involved. Consider the questions the Assistant United States Attorney asked concerning the exchange:

AUSA: And do you contact this person known as "D"?

Bailey: Yes.

AUSA: And what happens next?

Bailey: I contact him, I called him. He comes, gets the suitcase. He says he is going to bring me the suitcase back later on that evening. He didn't come back that evening, so I got worried and called Todd and told Todd that he didn't bring the suitcase back, and what was going on and this and that and they said just hold on, he will be there. And the next day he came with it.

AUSA: "D" came back with the suitcase?

Bailey: Right, the next evening.

AUSA: When "D" comes back with the suitcase, he comes to your hotel room?

Bailey: Yes.

AUSA: What does he ask you to do?

Bailey: First he calls and said he would be there in 20 minutes, and it took him about a half hour. When he came, he asked me to leave the room for 20 minutes and I went downstairs. He said go downstairs in the lounge and I went down in the lounge, and was gone from the room for about an hour.

AUSA: And you come back to your room and is "D" still there?

Bailey: "D" is gone.

AUSA: Is the suitcase there?

Bailey: The suitcase is there.

We do not see how this series of questions was designed to enhance the government's knowledge of anything but Dawes' involvement with, and responsibility for, the cocaine in Bailey's possession when she was arrested upon her return to Milwaukee. Had...