U.S. v. Billops

• Decision Date: 16 December 1994
• Docket Number: 94-2303,Nos. 94-2035,s. 94-2035
• Citation: 43 F.3d 281
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tiffany M. BILLOPS and James A. Morning, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 281

43 F.3d 281

UNITED STATES of America, Plaintiff-Appellee, v. Tiffany M. BILLOPS and James A. Morning, Defendants-Appellants.

Nos. 94-2035, 94-2303.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 1994.

Decided Dec. 16, 1994.

Ranley R. Killian, Jr. (argued) and Randy G. Massey, Office of the U.S. Atty., Crim. Div., Fairview Heights, IL, for plaintiff-appellee.

Howard B. Levy (argued), Chicago, IL and Andrea L. Smith (argued), Office of the Federal Public Defender, East St. Louis, IL, for defendants-appellants.

Before GOODWIN, ^* RIPPLE, and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

In this consolidated appeal, James A. Morning and Tiffany M. Billops appeal their conviction for drug trafficking offenses. Mr. Morning stands convicted of conspiracy to possess with intent to distribute cocaine base (21 U.S.C. Secs. 841(a)(1) and 846); possession with intent to distribute cocaine base (21 U.S.C. Sec. 841(a)(1)); and use of a firearm during a drug trafficking offense (18 U.S.C. Sec. 924(c)). The district court imposed a sentence totalling 324 months. Ms. Billops was convicted of conspiracy to possess with intent to distribute cocaine base (21 U.S.C. Secs. 846 and 841(a)) and of possession of cocaine base (a lesser included offense of 21 U.S.C. Sec. 844(a), possession with intent to distribute cocaine base). She was sentenced to concurrent terms of 262 months and 240 months on the two counts. Ancillary penalties were also imposed on each defendant. Before this court, both appellants submit that the evidence is insufficient to support the judgment of conviction. They also raise several issues with respect to their sentences. For the reasons set forth in the following opinion, we affirm the judgments of the district court.

I BACKGROUND

The charges in this case were the product of an investigation conducted by the Sheriff's Department of St. Claire County, Illinois. The investigation involved drug activities at 52 Laura Lee Drive. Law enforcement officers made four controlled purchases of crack cocaine in one week at that residence. Based on those purchases, the Department obtained a state search warrant for the premises of that house.

On January 12, 1994, the Sheriff's Department used a confidential informant to make one more controlled purchase of crack cocaine from that address. It then executed the search warrant. The officers found the defendants in the southwest bedroom. Co-defendant Shawn Binford was in another room of the house. ¹ The search uncovered six firearms and 10.4 grams of cocaine base. The officers also found a pager, a police scanner, money, and rocks of crack cocaine scattered over the floor of the bedroom.

Mr. Morning and Ms. Billops were arrested, taken to the Sheriff's Department, advised of their Miranda rights and interviewed. Each signed a written statement. In his statement, Mr. Morning admitted that he had sold 50 half-ounces of crack cocaine from the Laura Lee residence between June 1993 and the date of his arrest. He also A three-count indictment charged Billops, Morning, and Binford with conspiracy to distribute cocaine base, possession with intent to distribute cocaine base, and the use of a firearm during a drug trafficking offense. The jury found Mr. Morning guilty of all three counts; it found Ms. Billops guilty of Count 1 (conspiracy) and guilty of the lesser included charge of possession of cocaine base on Count 2. It found her not guilty on Count 3 (using or carrying a weapon in relation to a drug trafficking crime transaction).

stated that he kept a handgun for protection during his drug business. Ms. Billops also signed a written statement. She admitted that she lived at 52 Laura Lee, that she had sold crack cocaine from there at least 100 times between April or May 1993 and the time of her arrest, and that she possessed a handgun for protection. Ms. Billops indicated that co-defendant Shawn Binford and others also sold crack cocaine from the residence.

At sentencing, the district court determined that Mr. Morning's total offense level was 38 and that he had a criminal history category of II. The district court then sentenced him to 264 months of imprisonment on each of Counts 1 and 2, to be served concurrently, and a consecutive term of 60 months on Count 3, for a total term of 324 months. Ms. Billops' offense level was 38 and the criminal history category II. She was sentenced to a term of 262 months in prison on Count 1 and a concurrent term of 240 months on Count 2.

II DISCUSSION

We shall address the contentions of each defendant with respect to the sufficiency of the evidence. We shall then address, with respect to each, sentencing matters.

A. Sufficiency of Evidence

We turn first to the contentions that the record will not support the convictions of the defendants. As we have repeatedly noted, the defendant who seeks to upset a jury verdict on this ground must overcome a very high hurdle. The applicable standard is well settled. Our inquiry, when reviewing a challenge to the sufficiency of the evidence presented to support a criminal conviction, is "whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Howell, 37 F.3d 1197, 1201 (7th Cir.1994); United States v. Garcia, 35 F.3d 1125, 1128 (7th Cir.1994).

In evaluating contentions with respect to the sufficiency of the evidence, we examine the evidence of record in light of the elements of each offense. The conviction based on that evidence may be reversed "[o]nly when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Rosalez-Cortez, 19 F.3d 1210, 1215 (7th Cir.1994) (quoting United States v. Teague, 956 F.2d 1427, 1433 (7th Cir.1992)).

1.

We turn first to the conspiracy convictions. With respect to this charge, the government had to prove an agreement between two or more persons to possess with intent to distribute cocaine base, the defendants' knowledge of the agreement, and their intention to join it. United States v. Williams, 31 F.3d 522, 525 (7th Cir.1994); United States v. Salazar, 983 F.2d 778, 781 (7th Cir.1993). We also note that the Supreme Court recently held that, in establishing a violation of the criminal conspiracy statute, 21 U.S.C. Sec. 846, "the Government need not prove the commission of any overt acts in furtherance of the conspiracy." United States v. Shabani, --- U.S. ----, ----, 115 S.Ct. 382, 385, 130 L.Ed.2d 225 (U.S.1994). "In determining whether a defendant was a party to the conspiracy at issue, this Court has considered the existence of mutual dependence or mutual support among the defendant and members of the conspiracy as evidence suggesting that defendant did, in fact, join the conspiracy." United States v. Testa, 33 F.3d 747, 750 (7th Cir.1994) (citing United States v. Townsend, 924 F.2d 1385 1392 (7th Cir.1991)). "An agreement to conspire is 'typically distinguished by cooperative relationships between the parties that facilitate the achievement of the goal.' " Rosalez-Cortez, 19 F.3d at 1215 (quoting Townsend, 924 F.2d at 1395). Proof of that agreement may, of course, be grounded in circumstantial as well as direct evidence. ²

We cannot accept Mr. Morning's submission that the government has failed to carry its burden in this regard. In addition to Mr. Morning's own written admission that he sold crack cocaine fronted by others, the government presented evidence of the five controlled purchases made from Mr. Morning's residence in one week; the currency used to purchase the crack cocaine on prior occasions; a quantity of cocaine base from the bedroom Mr. Morning and Ms. Billops shared and a police scanner and a pager found in the house. A jury clearly could have found the essential elements of conspiracy beyond a reasonable doubt. Ms. Billops' contention that she cannot be convicted of conspiracy because she was acquitted of the offense of possession with intent to distribute cocaine also must fail. To the extent that her submission rests on the proposition that the jury verdicts are inconsistent, two considerations defeat her claim. First, it is well established that consistency in verdicts is not required because each count in the indictment must be treated for these purposes as a separate count in the indictment. ³ Secondly, and more basically, there is no inconsistency here. The jury decided that the government had not proven that her possession of cocaine base on a given day (on or about January 12, 1994) included the intent to distribute. That determination does not preclude the possibility that she conspired over a longer period of time to distribute the contraband.

2.

Mr. Morning also argues that there was no proof that he possessed cocaine with the intent to distribute it. He admits that there was enough crack cocaine found in the house to prove constructive possession, but contends that intent to distribute may be inferred only when the amount of drugs is more than that needed for personal use. United States v. Maholias, 985 F.2d 869, 879 (7th Cir.1993). The evidence showed that 10.4 grams of crack cocaine were seized from the residence on January 12, 1994. Up to three times that amount, he contends, could be consistent with personal use amount. See United States v. Kimmons, 917 F.2d 1011, 1016 (7th Cir.1990) (determining that government did not prove defendant's intent to distribute cocaine through its witness, a drug enforcement agent, who testified that thirty grams could be consistent with either distribution or personal use). Thus, he contends, the government failed to prove that he intended to distribute crack.

We note at the outset that there was unrebutted testimony at trial that the...