U.S. v. Smith

• Decision Date: 12 July 1993
• Docket Number: Nos. 91-2297,91-2563 and 91-3143,s. 91-2297
• Citation: 995 F.2d 662
• Parties: 38 Fed. R. Evid. Serv. 828 UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. SMITH, James J. Marren, and Gerald T. Louison, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 662

995 F.2d 662

38 Fed. R. Evid. Serv. 828

UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. SMITH, James J. Marren, and Gerald T. Louison Defendants-Appellants.

Nos. 91-2297, 91-2563 and 91-3143.

United States Court of Appeals Seventh Circuit.

Argued Sept. 29, 1992.

Decided May 3, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied July 12, 1993.

Frederick J. Hess, U.S. Atty., Robert T. Coleman, Asst. U.S. Atty., Office of the U.S. Atty., Fairview Heights, IL, and Michael C. Carr, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Benton, IL, for the U.S.

Joseph Saint-Veltri (argued), Denver, CO, for Ronald J. Smith.

Lynn A. Hirschfeld (argued), Chicago, IL, for James J. Marren.

John Speroni (argued), Marion, IL, for Gerald T. Louison.

Before RIPPLE and KANNE, Circuit Judges, and LEINENWEBER, District Judge. ^*

KANNE, Circuit Judge.

This case requires us to revisit the Lanier/Kramer drug ring which has kept this court busy with numerous appeals over the past few years. For the sake of brevity, we will set forth only a general overview of the drug ring's operations and relate specific facts pertinent to each defendant's appeal as necessary. ¹

Randy Lanier and Benjamin Kramer were partners in the marijuana importation business. Initially, the two men imported small amounts of marijuana, about 15,000 pounds, on small boats. However, as time progressed, the men were responsible for importing barge loads of marijuana, each containing approximately 150,000 pounds. From 1982 to 1986, there were seven episodes of marijuana smuggling planned and executed by Lanier and Kramer.

As with any commercial product, Lanier and Kramer had to devise ways of marketing and distributing the marijuana and secure people to help them implement these plans. To facilitate the distribution of such large amounts of marijuana, Lanier and Kramer utilized "major customers" in various cities throughout the United States. During the relevant time frame, Lanier and Kramer had three "major customers": Ron Ball, Chris Holdorf, and the partnership of Jeff Tuchband and David Tobias. Each of these customers, in turn, had primary customers of their own. After a shipment of marijuana arrived in this country, the three "major customers" were responsible for coming to the barge location, picking up their share of the marijuana and transporting it to stash houses in their area.

After extensive police work, the Lanier/Kramer organization was put out of business. A large number of individuals throughout the country were indicted as members of the Lanier/Kramer marijuana importation and distribution conspiracy. Several of these individuals were convicted, convictions we upheld on appeal. This case requires us to address three more convictions arising from the Lanier/Kramer conspiracy, those of James Marren, Ronald Smith and Gerald Louison. Unpersuaded by the defendants' arguments, we affirm both their convictions and their sentences.

Procedural History

On September 29, 1987, Marren was indicted, along with twenty other defendants, for conspiracy to distribute marijuana. The indictment alleged that the conspiracy ran from March 1980 through June 1987. Marren proceeded to trial on November 15, 1988 with five codefendants. On November 29, 1988, after Marren's counsel's opening statement, the government moved to disqualify Marren's attorney, Stephen Finta. Following a hearing, the trial court concluded that Finta might have been involved in the drug conspiracy and disqualified him. That same day, the court declared a mistrial as to Marren.

On March 2, 1989, Marren was charged with conspiracy in a superseding indictment. Marren filed a motion to dismiss based on double jeopardy, which was denied. ² On May 31, 1990, a grand jury issued another superseding indictment charging Marren, Smith and Louison (and eleven others) with conspiracy to knowingly and intentionally distribute more than 1,000 pounds of marijuana from in or about January 1978 to June 1987 in violation of 21 U.S.C. §§ 841(a)(1) and 846.

A joint trial began on December 3, 1990. All three defendants repeatedly filed motions for severance which were denied. On January 10, 1991, all three defendants were convicted. On appeal, the defendants claim several errors require reversal of their convictions or, at least, resentencing. We address each in turn.

Variance/Sufficiency of the Evidence

According to the defendants, the government's evidence at trial did not prove the existence of the single conspiracy alleged in the indictment, but rather proved, if anything, the existence of multiple conspiracies. The defendants claim that this alleged variance substantially prejudiced them. The challenge the defendants present is an all too familiar one for which we have several clearly established legal principles to guide our inquiry.

A conspiracy exists when two or more individuals agree to join together to commit an illegal act. United States v. Curry, 977 F.2d 1042, 1053 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993). "The crime of conspiracy focuses on agreements, not groups." United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir.1991). Thus, the government need prove only that the defendant knew of the agreement and intended to join it; the government need not prove specifically with whom the defendant conspired or that he even knew the other conspirators. Id. Furthermore, a conspiracy conviction may be based solely on circumstantial evidence. Curry, 977 F.2d at 1053.

The defendants' variance claim is really "a challenge to the sufficiency of the evidence supporting the jury's finding that each defendant was a member of the same conspiracy." Townsend, 924 F.2d at 1389. The difference between a single conspiracy and multiple conspiracies has been defined by this court. "If there is one overall agreement among various partners to perform different functions in order to carry out the objectives of the conspiracy, the agreement constitutes a single conspiracy." United States v. Gonzalez, 933 F.2d 417, 437 (7th Cir.1991). In contrast, if each of the conspirators' agreements has its own end or is an end itself, then multiple conspiracies exist. United States v. Paiz, 905 F.2d 1014, 1020 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991).

The question of whether there is one conspiracy or several is a question of fact for the jury. Id. at 1019. Thus we will uphold a conviction if, when viewing the evidence in the light most favorable to the government, "a reasonable trier of fact could have found beyond a reasonable doubt the existence of the single conspiracy charged in the indictment." Townsend, 924 F.2d at 1389. This is so even if the evidence at trial was also consistent with a finding that multiple conspiracies existed. Id. In addition, the scope of our review does not permit us to reweigh the evidence or make independent witness credibility determinations. United States v. Maholias, 985 F.2d 869, 874 (7th Cir.1993).

The defendants contend the following: (1) Marren admits to distributing marijuana during the time mentioned in the indictment but claims that he conspired with others--not any members of the Lanier/Kramer group; (2) Smith admits to drug activity in conjunction with Tuchband and Tobias, but claims he failed to join in the "larger conspiracy"; and (3) Louison denies knowingly joining any drug conspiracy, maintaining that he was not aware that marijuana was present in the trucks he drove.

After reviewing the evidence in the light most favorable to the government, we conclude that sufficient evidence exists to convict each defendant of having joined a single conspiracy to distribute Lanier/Kramer marijuana.

James Marren

During the mid to late 1970s, James Marren and Michael Canino were partners distributing marijuana in Philadelphia. The Marren/Canino partnership obtained marijuana from various sources. In 1976 or 1977, the two men began obtaining marijuana from Ron Ball, a "major customer" of his brother-in-law, Randy Lanier. At some point, Marren moved to Florida to obtain marijuana more easily; Canino remained in Philadelphia to service their customers. Originally, Marren along with Ball and Jim Blair worked to supply Canino with marijuana. However, in 1980, Ball became convinced that Marren was creating too much exposure for the group by his open discussion of drug deals and by obtaining marijuana from other sources. As a result, a deal was struck whereby Ball could sell marijuana directly to Canino. From then on, Marren was no longer actively involved in the distribution of Lanier marijuana but received a cut of the profit each time Ball made a delivery to Canino. According to several trial witnesses, Marren received commission payments, primarily from Canino, on approximately 150,000 pounds of marijuana over the next several years. Meanwhile, Marren also procured marijuana from other sources and supplied it to Canino.

Marren argues that this evidence proves only that he was involved in a separate and distinct conspiracy, presumably with Ball, Blair and Canino, prior to 1982. Marren does not dispute that a Lanier/Kramer drug conspiracy existed. Rather, he contends that the evidence did not show that he joined that conspiracy. We disagree. Marren introduced Ball, Lanier's brother-in-law and "major customer," to Canino to further the conspiracy's goal of distributing Lanier/Kramer marijuana. See United States v. Percival, 756 F.2d 600, 607 (7th Cir.1985) (introduction of drug coconspirators can show intent to join conspiracy). In addition, numerous witnesses testified that once Marren ended his day-to-day participation, he still was aware of the Lanier/Kramer operation's shipments and received $5 for each pound of Lanier/Kramer marijuana sold to Canino by Ball.

We believe that this circumstantial evidence was enough from which the jury could infer that Marren knew of the...