U.S. v. Edwards

Citation945 F.2d 1387
Decision Date15 October 1991
Docket Number89-2890,Nos. 89-2880,s. 89-2880
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jackie EDWARDS, Leda Martin, Olanrewaju Raji, Andre Stover, Jimmy Lee Coleman, C.C. Hampton, Marlowe Cole, Eric L. Bennett, Reggie Griffin, and Ronald McMillen, Defendants-Appellants. to 89-2892, 89-2952, 89-2953, 89-3101, 89-3519, 90-1869 and 90-2117.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Sean B. Martin (argued), Barry R. Elden, Vilija Bilaisis, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for U.S.

Robert F. Nemzin (argued), Anita Rivkin-Carothers, Chicago, Ill., for Jackie Edwards.

William H. Theis (argued), Chicago, Ill., for Leda Martin.

Bruce H. Bornstein (argued), Freedman & Bornstein, Chicago, Ill., for Olanrewaju Raji.

Robert A. Korenkiewicz (argued), Chicago, Ill., for Andre Stover.

Carl P. Clavelli, Chicago, Ill., for Jimmy L. Coleman.

Nathan Diamond-Falk (argued), Chicago, Ill., for C.C. Hampton.

Julie L. Friedman (argued), Chicago, Ill., for Marlowe Cole.

Richard T. Sikes (argued), Chicago, Ill., for Eric L. Bennett.

Michael D. Gerstein (argued), Chicago, Ill., for Ronald K. McMillen.

William J. Stevens (argued), Chicago, Ill., for Reggie Griffin.

Before CUMMINGS and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

For three years from 1986 through December 1988, Marlowe Cole presided over the "IBM" of heroin distribution systems on the south side of Chicago. Drug enforcement agents investigated the operation and the United States convened a Special Grand Jury in April 1987 to review evidence obtained primarily through an extensive compilation of authorized wiretapped telephone conversations. The Grand Jury returned a 132-count indictment on December 1, 1988, charging eighteen individuals with participation in a three-year heroin distribution conspiracy run by Cole. For their involvement in the Cole heroin network, as it became known, the defendants were charged with conspiracy for their various roles under 21 U.S.C. § 846, for distribution in excess of one kilogram of heroin in violation of 21 U.S.C. § 841(a)(1), and with use of the telephone to commit a drug offense in violation of 21 U.S.C. § 843(b). Ten of the original Cole organization defendants appeal various aspects of their case to this Court.

Of the ten defendants whose appeal is now before us, six were tried jointly before Judge Bua in the spring of 1989. They were Jackie Edwards, Leda Martin, Olanrewaju Raji, Andre Stover, Jimmy Lee Coleman, and C.C. Hampton. After an eleven-day trial, the jury deliberated for three and one-half days and found all six guilty. Although defendant Eric L. Bennett's role in the Cole organization was discussed at the joint trial, he was a fugitive at the time of trial. He was apprehended and tried and convicted separately in August 1989 in a bench trial before Judge Bua. Three other defendants pleaded guilty. Marlowe Cole, the organization's "CEO," admitted to operating a continuing criminal enterprise in violation of 21 U.S.C. § 848 and to money laundering in violation of 18 U.S.C. § 1956. Judge Bua sentenced him to a prison term of 30 years. Ronald McMillen also entered into a plea, admitting his liability for conspiracy to distribute in excess of one kilogram of heroin in violation of 21 U.S.C. § 846. Judge Bua sentenced him to 121 months' imprisonment. Lastly, Reggie Griffin, like Bennett, was a fugitive at the time of the joint trial. After he was apprehended, Griffin pleaded guilty to the conspiracy count of the indictment. He received a prison term of 83 months.

The six defendants who went to trial also received prison sentences, all of which were imposed by Judge Bua pursuant to the Sentencing Guidelines. Based both on their respective roles in the Cole heroin conspiracy and the various adjustments to their sentences, the defendants received a variety of prison sentences. Jackie Edwards received a sentence of 30 years. Leda Martin received a sentence of seventeen years and six months. Olanrewaju Raji received a sentence of 188 months. The trial court sentenced Stover to imprisonment for a term of 20 years. Jimmy Lee Coleman ultimately received a prison term of 20 years. Defendant C.C. Hampton received a sentence of 262 months. Finally, Eric L. Bennett, after his separate trial, was sentenced to a prison term of 25 years.

Defendants have presented a compendium of claims, most of which lack merit and which we will not address directly in the discussion below. We affirm the conspiracy convictions of each defendant. However, based upon a careful review of the record and the defendants' arguments, we conclude that the Sentencing Guidelines were incorrectly applied in this case. The conduct for which a defendant can be sentenced under the Guidelines is limited to that conduct which is reasonably foreseeable. In interpreting the Guidelines language for sentencing co-conspirators, we look for guidance to substantive conspiracy law since the Guidelines language approximates the substantive standard. An examination of the relevant cases reveals that a critical factor in determining the proper sentence is the degree of any given defendant's involvement in the conspiracy. As to certain defendants, we conclude that the scope of the Cole heroin conspiracy for the purposes of sentencing is narrower than viewed by the trial judge. Therefore, we remand for resentencing such defendants under the version of the Guidelines in force at the time of sentencing.

I. FACTS

The Marlowe Cole heroin conspiracy was a sophisticated retail business. It was well organized, tightly knit, carefully managed, and highly profitable. Cole stood at the head of the organization, and was assisted in the running of the operation by his live-in girlfriend, Deborah Cain. They oversaw the daily operation of the business and engaged the services of the suppliers, distributors, and drug couriers. They also diluted the heroin from its wholesale strength, dividing it into user-sized plastic packages, sending the product to be sold on the south side of Chicago. Working under Marlowe Cole were the organization's mid-level managers, C.C. Hampton, Leda Martin, and Jimmy Lee Coleman. These intermediaries stored and inventoried the packages of heroin and oversaw the operation of the business on the street, enforcing Cole's strict business regulations. They distributed the product to the street dealers, who in turn returned the proceeds of sale to the mid-level managers.

Eric Bennett and Ronald McMillen were among those street vendors who received the heroin from the mid-level managers. They hawked heroin in the streets and from a barren apartment called the "workhouse."

At the other end of the organizational spectrum were the wholesalers who procured heroin for sale by Cole and his underlings. Olanrewaju Raji, Andre Stover, Reggie Griffin, and Jackie Edwards provided the business with a supply of large, wholesale quantities of heroin. With this distribution apparatus in place, the Cole organization operated seven days a week, selling, bartering and extending credit to those trading for or buying the one and only commodity--heroin.

This portrait of the Cole organization emerged from the extensive evidence compiled, including the phone calls between co-conspirators, recorded during a two-month-long wiretap during which federal agents, with court approval, taped approximately 6,000 telephone conversations. Additionally, two insiders, Ontario and Haussian Evans (who were nephews of Cole), provided live testimony on the Government's behalf. The Evans brothers delivered heroin for their Uncle Marlowe. Drug enforcement agents who made undercover purchases of heroin from the Cole organization also testified in court. Finally, the Government introduced documentary evidence, including tax records, phone records, financial documents, and other physical evidence.

II. ANALYSIS
A. Application of the Sentencing Guidelines

The appeals in this case arise in part over the proper application of the Sentencing Guidelines in determining the base offense level assigned by the district court to each defendant. The base offense level corresponds to the quantity of drugs involved in the offense. Sentencing Guidelines § 2D1.1. The sentencing judge refers to the Drug Quantity Table, § 2D1.1(c), and chooses the base offense level that matches the amount of the specific controlled substance (or substances) involved. The base offense level, in turn, serves as a jumping-off point, for the judge selects a sentence that falls within the applicable guideline range for that level, and then adjusts the sentence accordingly for other factors, such as criminal history or acceptance of responsibility, and for other relevant details disclosed in the Presentence Investigation Report.

The Government and the defendants do not disagree over whether the Guidelines apply to the sentencing in this case. It is uncontroverted that a conspiracy that began before the Guidelines went into effect but continued after the Guidelines became law is within the scope of the Guidelines. Here the conspiracy with which the defendants were charged began in 1986 and continued through December 1988. The Guidelines initially went into effect on November 1, 1987. Therefore, they provide the legal framework for sentencing the members of the Cole organization. United States v. Osborne, 931 F.2d 1139, 1144 (7th Cir.1991); United States v. McKenzie, 922 F.2d 1323, 1328 (7th Cir.1991); United States v. Fazio, 914 F.2d 950, 959 (7th Cir.1990). However, all of the defendants save Eric Bennett, Reggie Griffin and Ronald McMillen were sentenced before November 1, 1989, the date on which certain substantive amendments to the Guidelines took effect. There have been additional amendments since then, effective November 1, 1990, but they are not discussed by the...

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