U.S. v. Pless

• Decision Date: 18 December 1992
• Docket Number: 91-3666,Nos. 91-3418,s. 91-3418
• Citation: 982 F.2d 1118
• Parties: 37 Fed. R. Evid. Serv. 909 UNITED STATES of America, Plaintiff-Appellee, v. James L. PLESS and Michael L. Cummings, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1118

982 F.2d 1118

37 Fed. R. Evid. Serv. 909

UNITED STATES of America, Plaintiff-Appellee, v. James L. PLESS and Michael L. Cummings, Defendants-Appellants.

Nos. 91-3418, 91-3666.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 9, 1992.

Decided Dec. 18, 1992.

John J. Thar, Asst. U.S. Atty., Donna Eide (argued), Office of U.S. Atty., Indianapolis, IN, for plaintiff-appellee.

David J. Colman (argued), Bloomington, IN, for defendants-appellants.

Before POSNER and COFFEY, Circuit Judges, and SHADUR, Senior District Judge. ^*

SHADUR, Senior District Judge.

Half brothers James L. Pless ("Pless") and Michael L. Cummings ("Cummings") were convicted in a jury trial of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. ¹ In the same trial Cummings was also found guilty of being a convicted felon in possession of firearms in violation of Sections 922(g)(1) and 924(a)(2). Pless and Cummings appeal their convictions, while Cummings also challenges his sentence. We affirm in all respects, save for a partial remand to complete the written record on Cummings' sentence.

Background

In June 1990 Cummings had pleaded guilty to methamphetamine possession in a federal court in California. In November of that year Cummings' probation was transferred to Bloomington, Indiana, where Cummings moved into a house at 4750 Robinson Road that Pless had rented for him. On March 25, 1991 agents of the Federal Bureau of Investigation, the Drug Enforcement Agency and officers of the Indiana State Police searched the Robinson Road residence pursuant to a search warrant issued by an Indiana state court magistrate. Fruits of that search were the subject of a later suppression hearing, which we deal with a bit farther on.

On June 12, 1991 a grand jury handed down a three-count superseding indictment in this case. In the first count Cummings, Pless and four others--including Cummings' son Chad, Cummings' adopted daughter Sandy McCormick and Cummings' half brother (Pless' full brother) William--were charged with conspiracy to manufacture methamphetamine in a quantity greater than 1000 grams, in violation of Section 841(a)(1). Under the second count Cummings, Pless and ten others, including William Pless' wife Beth, were charged with conspiracy to distribute methamphetamine in violation of the same statute. In the final count Cummings was charged with being a convicted felon in possession of firearms in or affecting commerce, in violation of Sections 922(g)(1) and 924(a)(2). Cummings, Pless and two others (Michael Starks and Randall Newton) went to trial. Starks and Newton were acquitted, but Cummings and Pless did not fare so well and were convicted on all counts.

Cummings was sentenced to a term of life in prison on each of Counts One and Two and a term of 60 months on Count Three, all to be served concurrently. Pless received concurrent sentences of 188 months on Counts One and Two. Each defendant filed a timely notice of appeal. We have jurisdiction pursuant to Section 3742(a) and 28 U.S.C. § 1291.

Pless raises two issues on appeal:

1. whether the government met its burden of proving beyond a reasonable doubt that he was a knowing participant in the conspiracy; and

2. whether the district court abused its discretion in permitting Pless to respond to a government request to "just tell the story" on cross-examination.

Cummings poses two other issues:

1. whether the evidence obtained pursuant to the search warrant of the Robinson Road residence should have been suppressed because the search warrant was unsupported by probable cause; and

2. whether various aspects of the sentencing, including the sentencing date, denial of writs of habeas corpus ad testificandum, the timing and content of the judge's tentative findings as to disputed factors and the judge's emphatic expression of his view on disputed factors violated Cummings' due process and statutory rights under Fed.R.Crim.P. ("Rule") 32, United States Sentencing Commission Guidelines ("Guidelines") § 6A1.3, ² and the Local Order ("Local Order") adopted by the judges of the district court to implement the Guidelines.

We address all those questions in turn.

Sufficiency of Evidence

Pless contends that the record evidence cannot support the jury's conclusion that he was a knowing participant in the conspiracy to manufacture and distribute methamphetamine. In weighing the sufficiency of evidence on appeal, we make the familiar inquiry "whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979) (emphasis in original)).

Even apart from the extraordinarily steep mountain that standard requires any defendant to climb, anyone who wants to preserve such a challenge on appeal must have renewed a motion for judgment of acquittal either at the close of all the evidence or via a post-trial motion within the seven-day period prescribed by Rule 29(c) (United States v. James, 923 F.2d 1261, 1267 (7th Cir.1991)). If not, defendant has waived the challenge on appeal, and we may reverse a conviction for insufficiency of the evidence only if there has been a manifest miscarriage of justice (id.).

Pless has fallen afoul of that waiver rule. Although his counsel moved for a judgment of acquittal at the close of the government's evidence, the motion was not renewed either at the close of all the evidence or by a post-trial motion. Because Pless has certainly made no showing of a miscarriage of justice, that could end the discussion. But to eliminate any prospect of an inadequate-representation-of-counsel motion at some later date, we go on to make it plain that the evidence was sufficient to support the jury verdict even under the slightly less demanding Jackson standard of review.

Under Section 846 the essential definition of a conspiracy is an agreement between two or more individuals to commit an offense in violation of the Controlled Substance Act. It is the government's burden to prove that the defendant both knew of the conspiracy and intended to associate himself or herself with the criminal scheme (see United States v. Sullivan, 903 F.2d 1093, 1098 (7th Cir.1990)). United States v. Paiz, 905 F.2d 1014, 1020 (7th Cir.1990) (citations omitted) teaches that proof short of those elements will not suffice:

Evidence of "mere association with conspirators, knowledge of the conspiracy, or presence during conspiratorial discussions," without more, will not do the trick. Evidence must be presented "to support the inference that the defendant in some way joined and participated in the conspiratorial scheme."

Only a brief review of the evidence is needed to scotch Pless' contention. He himself admitted that he was paid on two occasions to go to a chemical distributor in Chicago to pick up "a package"--crystal iodine. Although he denied knowing the contents or intended use of the package, Pless admitted that he lied to the clerk at the chemical distributor's place of business about needing the chemical for horses. Pless maintained that he was picking up the package for William and Beth Pless, not Cummings. But others testified both (1) that Cummings had asked and had paid Pless to make the pickup and (2) that Cummings needed the crystal iodine for the methamphetamine manufacturing process.

Beth Pless also testified that Pless had offered to sell some methamphetamine to a third person, that he had asked her to sell some methamphetamine for him and that he had driven a van full of Cummings' laboratory equipment onto remote property that Pless owned after Cummings and others had dismantled the laboratory for fear of discovery. Other testimony showed that Pless willingly would have sold methamphetamine and that he had bragged about how much money he would make selling it. Cummings' adopted daughter Sandy McCormick testified that Cummings had called Pless to help clean up a leak in the laboratory and had also called him to help dismantle the laboratory when he feared a police raid.

Surely a rational jury could have found beyond a reasonable doubt on that evidence that Pless knowingly participated in the scheme to manufacture and distribute methamphetamine. Indeed, the rational juror would have had to strain mightily to reach any other conclusion.

Admission of Evidence on Cross Examination

Pless also argues that the district court erred in overruling his objection to the government's "just tell the story" question posed to him on cross-examination. Pless contends that thus calling on him to describe in narrative form the untrue story that he had told to the chemical distributor in Chicago was too broadly framed and hence unduly prejudicial.

On such evidentiary matters we give special deference to the trial court, reversing the district judge's decision to admit testimony only where there has been a clear abuse of discretion (United States v. Allen, 930 F.2d 1270, 1273 (7th Cir.1991)). That is not at all the case here: Fed.R.Evid. 611(a) provides district judges with authority to allow testimony in narrative form rather than as answers to specific questions (see 3 Jack Weinstein and Margaret Berger, Weinstein's Evidence p 611, at 611-19-611-20 (1991)), and we ourselves have said that "[t]here is ... nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality" (United States v. Garcia, 625 F.2d 162, 169 (7th Cir.1980)). Indeed, both Weinstein's Evidence and Garcia suggest that the narrative may well be the preferable form in some respects.

Even were the rule otherwise than we have stated, Pless could not prevail on this issue. Here is the exchange between the prosecutor and Pless on...