U.S. v. Badger
| Decision Date | 26 February 1993 |
| Docket Number | 90-3245,90-3252,90-3659,91-2460,Nos. 90-3223,s. 90-3223 |
| Citation | 983 F.2d 1443 |
| Parties | 37 Fed. R. Evid. Serv. 252 UNITED STATES of America, Plaintiff-Appellee, v. James BADGER, Roscoe Foreman, Marcia F. Ivy, and Mariano "Mario" Lettieri, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jacqueline Oreglia, Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellant.
Jeffrey B. Steinback, Terence P. Gillespie, Geena D. Cohen, Leonard Goodman (argued), Genson, Steinback, Gillespie & Martin, Chicago, IL, for Mariano M. Lettieri.
Jack P. Rimland (argued), Stamos, Rimland, Halprin & Clark, Chicago, IL, for Marcia F. Ivy.
Rick Halprin (argued), Chicago, IL, for Roscoe Foreman.
Richard F. Walsh (argued), Chicago, IL, for James G. Badger, Jr.
Before BAUER, Chief Judge, MANION, Circuit Judge, and MOODY, District Judge. *
This case is a direct criminal appeal by four defendants: James Badger, Roscoe Foreman, Marcia Fay Ivy, and Mariano Lettieri. These four defendants and a fifth defendant were named in an eighteen-count superseding indictment that charged nine individuals with a conspiracy to distribute and possess heroin and cocaine, plus related crimes. Three counts of the indictment were dismissed, and the five defendants proceeded to trial. All were convicted of the remaining counts with which they were charged. After trial, the district court granted the fifth defendant judgement of acquittal due to insufficient evidence. The four remaining defendants have been joined in this consolidated appeal. Badger, Foreman, and Ivy appeal their convictions. Lettieri appeals both his conviction and sentence, as well as denial of his emergency motion for a new trial. We affirm.
Nedrick Miller, a thirty-year veteran of the Chicago Police Department, was neither serving nor protecting when he conducted a drug sales and distribution operation while managing a west-side Chicago apartment building from late 1987 through April 1989. In addition to his own operation, Miller earned $500-600 weekly for allowing Michael "Ice Mike" Gomire to sell cocaine around the clock from the building, the Washington Pine Apartments ("the Pines"). . Gomire rented as many as ten apartments at one time (Tr. 294), using them to process and sell drugs. (Tr. 345). A number of other people also worked in the building. Annette Daggs was the desk clerk (Tr. 292), Marcia Fay Ivy cleaned apartments and common areas (Tr. 1364-65), and Howard Lucas was the janitor. (Tr. 95).
Lucas got a second job when his pay was cut by the building owner. At that time, Miller put him in touch with Gomire, who put Lucas to work breaking down kilograms of cocaine ("kilos") into one ounce quantities. (Tr. 102). After a few months, someone involved in the drug organization learned that Lucas had traded bags of cocaine in exchange for sex. (Tr. 105). When Miller found out, he told Gomire to have Lucas beaten. (Tr. 361). Lucas left town to recuperate, and upon his return he worked for Miller, rather than Gomire, picking up drugs. (Tr. 107). Lucas sometimes picked up drugs from Mariano "Mario" Lettieri (Tr. 108), who owned Mario's Butcher Shop and Food Center ("the butcher shop") located near Miller's building. (Tr. 1260). Lucas picked up drugs from Lettieri on at least three occasions. The first time, he met Lettieri at a suburban sandwich shop and picked up a kilo. (Tr. 109-12). On another occasion, he accompanied Miller to meet Lettieri and picked up another kilo at a suburban cemetery (Tr. 112-15), and a third time he picked up several ounces of Karachi heroin from the butcher shop. (Tr. 115-18).
In the summer of 1988, Miller and Lettieri were at Loretto Hospital, where Miller and Gomire held a meeting while Lettieri looked on from another room. Miller invited Gomire to participate in a consignment sale of Lettieri's cocaine. (Tr. 349-53). Gomire agreed, and the three men began a joint operation to sell cocaine from the Pines. Gomire and Miller sold three to four kilos on consignment for Lettieri. (Tr. 353-56). Each kilo brought about $50,000 on the street. Usually $8000 of that was spent on "expenses" such as money lost in police raids and sandwiches for the workers. Miller and Gomire divided the remaining $42,000 into $1000 bundles. Lettieri's share was $29,000, which was delivered to him at the shop. Miller and Gomire kept the balance for themselves. (Tr. 354-55).
The Government learned of these activities, and in late 1987, the United States Drug Enforcement Administration ("DEA") began investigating Miller and the drug operations at the Pines. (Tr. 493). In September 1988, DEA Special Agent Van Quarles went undercover with the help of a confidential informant called Top Cat or TC. (Tr. 160). Agent Quarles portrayed a drug trafficker from Grand Rapids, Michigan called "Little Wolf". (Tr. 159-61). The "Little Wolf" cover worked, and Quarles arranged to buy cocaine from Miller. (Tr. 217-50). Daggs acted as Miller's mouthpiece, and Quarles worked through her at Miller's instructions. (Tr. 171). Despite that, Quarles met with Miller on two occasions. (Tr. 167, 172). At one of those meetings, Miller generously lent Quarles advice on how to best run a drug trafficking operation. (Tr. 172-73). At both meetings, Miller related details about losing $30,000 of Karachi heroin. (Tr. 168, 175). Quarles successfully purchased cocaine on four occasions, picking up the drugs from Daggs. (Tr. 218, 221, 231, 236). Little Wolf tried to set up a fifth cocaine purchase during January and February 1989, but Daggs told him that the cocaine sources had dried up. (Tr. 243).
Attempts to buy cocaine for resale to Little Wolf brought Marcia Fay Ivy into the picture. (Tr. 368, 1386). To the drug operators at the Pines, Ivy was known as Iyesha. 1 In February 1989, Ivy telephoned Roscoe Foreman, a Chicago attorney, and James Badger, a co-owner of a towing company (Tr. 959-60), and asked them to supply her with cocaine. (Tr. 1386-92). Foreman had met Ivy through his brother-in-law, and knew her as Eleanor McKinney (Tr. 804), or Bay-Bay. (Tr. 809). 2 Foreman and Ivy struck up a social and business relationship. At times, Foreman and his former wife would socialize with Ivy and her cousin. In addition she babysat his children, cleaned his house, and taught his wife to cook. (Tr. 758, 804, 809). Ivy was also a cousin to one of Badger's business partners, who introduced them. Badger also knew her as Eleanor McKinney (Tr. 962), and in 1988, she worked for Badger in a side business he had selling clothing. (Tr. 962-63).
The DEA listened to Ivy's conversations with Foreman and Badger; Miller's telephones had been tapped. (Tr. 499-502). They heard four of Ivy's conversations--two each with Foreman and Badger--arranging drug transactions. In the first conversation between Ivy and Badger, Ivy asked Badger how much it would cost her to get a "key" (kilo) from his suppliers. Badger replied "nineteen" or "nineteen five". (Govt.Exh. Tape No. 22). In drug circles, these prices were understood to mean a cost of nineteen or nineteen and a half thousand dollars per kilo. (Tr. 520). In the second conversation with Badger, Ivy called to confirm the price. (Govt.Exh. Tape No. 25).
Ivy's conversations with Foreman were similar. In the first one, Ivy asked Foreman whether he could get a "half a key" and what it would cost. Foreman indicated he would check. (Govt.Exh. Tape 24). In the second conversation, Foreman told Ivy he could get the cocaine, and it would cost "eleven dollars". (Govt.Exh. Tape 26). Eleven dollars, in the course of a drug transaction, is short form for eleven thousand dollars. (Tr. 521).
Ivy, Badger, and Foreman testified at trial. Ivy testified that she was only pretending to arrange drug deals, and alluded to a "caper" she was going to "pull off". (Tr. 1374-1393). That caper allegedly was a plan to steal Little Wolf's money as she had done on a previous occasion to another drug dealer. Both Foreman and Badger testified that they knew Ivy was pretending and they were simply humoring her. Foreman stated that he believed Ivy to be coming into money for some reason (Tr. 821-28), and Badger testified that he believed Ivy was pretending to act as a go-between for a drug deal but instead would "rip-off" the drug dealer by keeping the money and not delivering the drugs. (Tr. 964-65).
Co-conspirators Lucas, Gomire, and Daggs testified for the prosecution. The jury returned guilty verdicts on all counts, and the defendants were subsequently sentenced. The only challenge to the sentences comes from Lettieri, who received 190 months imprisonment followed by five years of supervised release. The case did not end, however, after sentencing.
In an unusual turn of events, Lettieri filed a motion for a new trial because Gomire recanted his trial testimony in a sworn affidavit. Gomire stated that while he was in Cook County jail on an attempted murder charge, he was asked by a Chicago Police officer to give information about Gomire's activities with Miller and Lettieri. Gomire averred that he felt threatened by the officer when he told him that he [Gomire] had no illegal dealings with Lettieri. Because of this alleged threat, Gomire claimed that he implicated Lettieri in the conspiracy and testified against him at trial in an effort to "protect [Gomire's] own best interests". Shortly after the recantation, Gomire was transferred to federal custody. Once there, he met with government attorneys and the trial judge and told them he had lied in the affidavit.
A special hearing was held to unravel the issues. At the hearing, Gomire recanted his recantation. He related that the attempted murder charge for which he was in jail resulted from a shooting where Gomire and a...
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