U.S. v. Baker, 94-1304

• Decision Date: 08 November 1994
• Docket Number: No. 94-1304,94-1304
• Citation: 40 F.3d 154
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael D. BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 154

40 F.3d 154

UNITED STATES of America, Plaintiff-Appellee, v. Michael D. BAKER, Defendant-Appellant.

No. 94-1304.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1994.

Decided Nov. 8, 1994.

Ralph M. Friederich, Asst. U.S. Atty. (argued), Criminal Div., Fairview Heights, IL, for plaintiff-appellee.

David M. Williams (argued), Fairfield, IL, for defendant-appellant.

Before POSNER, Chief Judge, MANION, Circuit Judge, and ASPEN, District Judge. ^*

MANION, Circuit Judge.

Michael Baker was convicted by a jury of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. Baker raises various challenges to his trial and conviction and sentence, none of which require reversal. We affirm.

I.

The facts most favorable to the government reveal that Michael Baker began distributing cocaine in the Carterville, Illinois area sometime in 1986. Baker obtained resale quantities of cocaine from his source in Florida and brought the drugs back to Illinois for resale. Baker's Illinois customers, including Danny Holmes, Snyder Bruce Herrin and David Falmier, would in turn distribute the cocaine obtained from Baker to their own customers.

Baker later realized that he could get a higher return on his money if he obtained cocaine by the kilogram. Kilograms cost around $20,000, however, and Baker did not have this kind of money. So Baker approached Holmes, Herrin and Falmier, and proposed that they pool their money to purchase a kilogram. Everyone agreed. Starting in late 1987 or early 1988, they began pooling their money and purchasing bulk quantities of cocaine. The record reveals that Baker entered into several such pooling arrangements with Holmes, Herrin, Falmier and Tommy Loyd, another Illinois distributor with whom Holmes had frequent drug dealings. With this money in hand, Baker, usually accompanied by another codefendant, would drive to Port St. Lucy, Florida and pick up a kilogram from Baker's supplier, someone identified only as "Paul." He would then return to Illinois where each contributor would take his pro rata share of the cocaine. In fact it was after one of these excursions that Baker and Falmier were found in possession of cocaine when they were pulled over for a traffic violation in Illinois on January 20, 1989.

Baker and Falmier were arrested and later charged by Illinois authorities with possession and distribution of cocaine ¹; however, this did not deter Baker and the others from continuing their cocaine cooperative. Following Baker's arrest, Loyd started obtaining cocaine from his niece, Julie Pahl, and her husband, John Pahl, both of whom lived in Coral Springs, Florida. The Pahls sold their cocaine for the same price as the "Paul" in Port St. Lucy (the record indicates that despite the similarity in their names, these were in fact separate suppliers). Loyd financed these purchases by entering into pooling arrangements with Baker, Falmier (both of whom presumably were released on bail), Herrin and Holmes. The pooling system was similar to the ones previously entered into with Baker. Loyd recruited various female drug couriers, including Deloris Lingle, to fly to Coral Springs, Florida to pick up kilograms of cocaine. According to Lingle, she would be met at the airport by the Pahls who, after receiving payment for cocaine, would tape the drugs to Deloris' abdomen. Lingle testified that she would then fly back to Illinois and deliver the cocaine to Loyd at his bar in Blairsville, Illinois. Lingle testified that on numerous occasions she saw Loyd split up the cocaine among himself, Holmes, Herrin, Falmier and Baker. At trial, John Pahl verified Lingle's testimony regarding Loyd's methods of purchasing and transporting the cocaine back to Illinois. John Pahl testified that he sold Loyd a total of 13 kilograms of cocaine. He also testified that Loyd told him that Holmes and Herrin had contributed to the purchase price of several of the kilograms purchased by Loyd. John Pahl stopped supplying Loyd with cocaine shortly after Loyd was arrested in July of 1989.

Following Loyd's arrest, Baker and Holmes, in late 1989, made another trip to Port St. Lucy, Florida to obtain a kilogram of cocaine from "Paul." Baker and Holmes each kicked in $10,000. Upon their return to Illinois, Baker and Holmes took their respective shares of the cocaine and distributed it to their own customers.

On December 16, 1992, a federal grand jury indicted Baker, Holmes, Falmier, and the Pahls, for conspiring to distribute cocaine, in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2. On July 13, 1993, the grand jury returned a superseding indictment against Baker only, charging that, from about January 1987 to January 1990, Baker, along with Loyd, Holmes, Falmier and the Pahls, conspired to distribute cocaine in violation of 21 U.S.C. Sec. 846. Sometime between these two indictments Baker's codefendants pleaded guilty; Baker pleaded not guilty and proceeded to trial. The jury found Baker guilty as charged. The district court sentenced Baker to 141 months imprisonment followed by a five-year period of supervised release.

On appeal, Baker alleges pretrial error stemming from the government's delay in bringing this case to trial. He also challenges the sufficiency of the evidence underlying his conspiracy conviction, and claims that the district court failed to enter specific findings as to the amount of drugs attributable to him for purposes of calculating his base offense level under the Sentencing Guidelines.

II.

A. Pre-Indictment Delay

Baker first challenges the district court's refusal to grant his motion to dismiss based on pre-indictment delay. Baker was arrested for state drug charges in Illinois on January 20, 1989; the federal government obtained its first indictment against Baker on December 16, 1992. Baker claims that the federal government's 47-month delay in obtaining its initial indictment substantially prejudiced his ability to mount an effective defense and therefore deprived him of his Fifth Amendment right to due process.

Initially, we point out that the most obvious safeguard against any potential prejudice flowing from the government's delay in seeking an indictment is the applicable statute of limitations. In the case of non-capital federal crimes, such as conspiracy under 21 U.S.C. Sec. 846, Congress has set out a five-year period of repose. 18 U.S.C. Sec. 3282. This reflects a legislative judgment that so long as prosecutions are brought within the designated timeframe, then, notwithstanding the possible loss of crucial evidence or failure of memory, a defendant will be able to adequately defend himself. But Baker has not argued that the government's prosecution was barred by the statute of limitations, and for good reason: Baker's last act in this conspiracy occurred in late 1989 and the original indictment was returned on December 16, 1992, well within the five-year period of limitations.

The Supreme Court has stated, however, that "the statute of limitations does not fully define [a] [defendant's] rights with respect to events occurring prior to indictment." United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). Instead, the Court in Marion observed that the Due Process Clause of the Fifth Amendment may provide a check on certain prosecutions, even though brought within the period of limitations, "if it were shown at trial that the pre-indictment delay in [bringing] [the] case caused substantial prejudice to [a] [defendant's] right[ ] to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." Marion, 404 U.S. at 324, 92 S.Ct. at 465; accord United States v. Sowa, 34 F.3d 447, 449-50 (7th Cir. Aug. 30, 1994). To make out a due process claim, it is the defendant's burden to establish prejudice with specific, concrete allegations supported by evidence; only after meeting this burden must the government explain the reasons for the pre-indictment delay. Sowa, at 450-51.

Baker failed to clear the first hurdle in asserting his claim. Nowhere in Baker's motion to dismiss, nor, for that matter at the hearing on that motion, did he point to anything that could plausibly demonstrate prejudice to his defense. Baker's motion simply alleged that the government's delay was an attempt "to prejudice the Defendant in his defense by relying upon lapses of memory from potential witnesses due to the length of time between gaining the information necessary for an indictment and bringing the indictment." When pressed by the district judge to offer some evidence supporting his claim, Baker's counsel simply reiterated his conclusory allegations of prejudice contained in his motion to dismiss. The district court denied Baker's motion, reasoning that Baker's bare allegations were in themselves insufficient to establish a violation of due process. This determination was correct. See, e.g., Pharm v. Hatcher, 984 F.2d 783, 787 (7th Cir.1993) (stating that vague allegations of "faded memory" are insufficient to establish prejudice for the purposes of a due process violation).

Moreover, the district court offered Baker the opportunity to renew his motion at trial and offer evidence in support; yet there is nothing in the record demonstrating that Baker, either at trial or in a post-trial motion, took up the district court's offer. This means that Baker has waived his claim in the district court, and can raise it in this court only if he can demonstrate plain error, "which is to say an error that must be corrected in order to avert a miscarriage of justice." United States v. Lechuga, 994 F.2d 346, 351 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993). We find no plain error here. In support of his claim, Baker points us to excerpts from the trial testimony of various witnesses, including himself, in which the witness, in responding to a question, states some...