956 F.2d 1427 (7th Cir. 1992), 90-1706, United States v. Teague

Docket Nº:90-1706.
Citation:956 F.2d 1427
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth E. TEAGUE, Defendant-Appellant.
Case Date:March 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1427

956 F.2d 1427 (7th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth E. TEAGUE, Defendant-Appellant.

No. 90-1706.

United States Court of Appeals, Seventh Circuit

March 12, 1992

Argued May 30, 1991.

Rehearing and Rehearing En Banc Denied

April 23, 1992.

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Barry R. Elden, Asst. U.S. Atty., Diane L. Saltoun, Asst. U.S. Atty. (argued), Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Algis F. Baliunas, Orland Park, Ill., Janis D. Roberts, Thomas A. Durkin (argued), Durkin, Foster, Roberts & Barnett, Chicago, Ill., for defendant-appellant.

Before COFFEY, EASTERBROOK and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Kenneth E. Teague appeals his conviction, after a jury trial, of conspiring to possess with the intent to distribute 250 pounds of marijuana in violation of 21 U.S.C. § 846, the possession with the intent to distribute 250 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1) and the use of a communication facility to commit a felony in violation of 21 U.S.C. § 843(b). We AFFIRM.

I. FACTS

On November 9, 1988, a confidential informant for the Drug Enforcement Administration ("DEA") telephoned Teague to arrange a meeting between Teague, the informant and an undercover DEA agent, William Zopp, Jr., at the Phillips 66 truck stop near Joliet, Illinois to arrange for the sale of marijuana to Teague. 1 During the course of the scheduled meeting, the three men engaged in a wide-ranging conversation about drug deals that demonstrated Teague's awareness of other large marijuana and cocaine deals in which his acquaintances were involved. Teague complained several times because Special Agent Zopp and the confidential informant failed to bring him a sample of the marijuana, but he stated that his friends would take 500 pounds if it were dry and "if it's good." He stated that the guy who was providing the money for the deal was not familiar enough with marijuana to know whether it was good, but that Teague's "partner" would advise him regarding it. During this meeting the DEA agent and the confidential informant arranged to contact Teague the following week to see if Teague was

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able to finalize arrangements for taking delivery of the 500 pounds of marijuana.

Over the next twenty-six days, Zopp and his putative drug-dealing partner, DEA Special Agent Kevin Lane, phoned Teague twelve times to continue negotiating and finalizing the terms of the delivery of the marijuana (each of the conversations were recorded and introduced in evidence at trial). Teague's initial plan fell through because the person Teague expected to finance the purchase invested half a million dollars in another drug deal. Thereafter Teague offered to purchase 100 pounds of marijuana rather than 500, as he could finance that amount himself. But when Zopp informed Teague that he and his partner wanted an additional $50.00 per pound if they were going to sell 100 pounds only, Teague objected because he was able to get marijuana "fronted" to him if he were willing to pay $600 a pound. 2 Negotiations continued in subsequent telephone calls, with Teague attempting to persuade Zopp to sell him 100 pounds and Zopp resisting selling less than the 500 pound increment originally negotiated. Zopp finally agreed to sell Teague 250 pounds, but when it appeared that Teague would be unable to produce the finances for that amount, Zopp broke off negotiations and gave Teague a pager number for Special Agent Lane in order that "if you feel you are going to have the money together, you can just page him." Nine days later on November 30, 1988, Special Agent Lane telephoned Teague in response to Teague having called his pager. At this time Teague offered to buy the 250 pounds of marijuana if Lane would sell it for $500 a pound, accept payment for 100 pounds on delivery and "front" the other 150 pounds to Teague for a day or two following delivery. On December 2, 1988, when Zopp phoned Teague to finalize plans for delivery of the 250 pounds of marijuana, Teague informed him that another man was going to provide $25,000.00 for the purchase and that Teague would borrow the other $25,000.00 from the bank. They arranged for Teague to meet Zopp at the Phillips 66 truck stop on December 5, 1988, at 1:00 p.m. for Teague to display the cash to Zopp, whereupon Zopp would arrange to have the marijuana delivered in his partner's van, which Teague would in turn use to transport the marijuana to a safe hiding place.

On the morning of December 5, 1988, DEA agents initiated surveillance of Teague's home at approximately 11:00 a.m. Shortly thereafter, at 11:20 a.m., officers observed one Dennis Cullick arrive at the Teague residence in a four-door blue Buick and enter the house. At approximately 12:20 p.m. Cullick left the Teague home in his blue Buick, followed by a man named Curt Lidle driving Teague's black convertible Corvette. 3 Lidle parked the Corvette in front of a bar and joined Cullick in the blue Buick. Agents observed the blue Buick arrive at the truck stop about 12:45 p.m. where Cullick purchased gas while Lidle entered the building at the truck stop. Approximately five minutes later Lidle exited from the buildings, entered the blue Buick and drove off. One agent followed the blue Buick to a fast-food place where Cullick and Lidle purchased sandwiches, after which they drove to a McDonald's parking lot to lunch. At approximately 1:00 p.m. the blue Buick was observed heading back toward the truck stop. 4

At 1:00 p.m. Zopp met Teague in the parking lot of the truck stop. Teague was wearing a long, winter coat with bulging pockets. When Zopp asked him if he had the money, Teague took his hands out of his pockets and held the pockets open so Zopp could see into them. When Zopp observed that Teague's pockets were bulging with money, he gave a pre-arranged arrest

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signal to the surveillance agents, and Teague was quietly arrested. At the time of his arrest, Teague had $50,000.00 on his person. 5

Teague was charged, and the district court set a trial date for May 30, 1989. But on May 26, 1989, defense counsel appeared before the trial judge and requested a continuance of the trial and that a status hearing be held 21 days thereafter because Teague had signed himself into a drug treatment program at Palos Heights Hospital in Illinois and was not scheduled for discharge until June 13, 1989. The court granted the continuance, and at an August 23, 1989 status hearing the following exchange regarding Teague's mental competency occurred:

"[DEFENSE ATTORNEY]: ... I have a client who has suffered some mental incapacity during the pendency of this case, and I have brought this to the Court's attention.

* * * * * *

"THE COURT: Is your client in a mental institution at this time?

"[DEFENSE COUNSEL]: No, he's not now. He has been, but he's not institutionalized currently.

"THE COURT: But you have raised the issue of his fitness, or competency, or mental state?

"[DEFENSE COUNSEL]: No, I have not. I have advised the Court of it, and the Government is aware of it, but I don't believe it rises to the level of competency proceedings."

This is the final mention of Teague's mental condition in the trial record, but, as will be discussed more thoroughly below, the record is void of evidence tending to establish that Teague was unable to understand the proceedings against him or to confer with his attorney on his own behalf. 6

Teague was tried before a jury on October 25-31, 1989. The jury returned a verdict of guilty on all charges, including one count of a conspiracy to possess with the intent to distribute 250 pounds of marijuana in violation of 21 U.S.C. § 846; ten counts of the use of a telephone to commit a felony in violation of 21 U.S.C. § 843(b); and one count of possession with the intent to distribute 250 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). 7 Although Teague was convicted of conspiring to possess with the intent to distribute and possession with the intent to distribute 250 pounds of marijuana, the trial judge accepted his argument at sentencing that he should be held responsible for 100 pounds only, since Teague stated during the...

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