U.S. v. Blanding, s. 94-2975

• Decision Date: 14 April 1995
• Docket Number: Nos. 94-2975,94-2976 and 94-2977,s. 94-2975
• Citation: 53 F.3d 773
• Parties: 41 Fed. R. Evid. Serv. 1295 UNITED STATES of America, Plaintiff-Appellee, v. Alice K. BLANDING, Sidney C. Anthony and John L. Vaughn, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 773

53 F.3d 773

41 Fed. R. Evid. Serv. 1295

UNITED STATES of America, Plaintiff-Appellee, v. Alice K. BLANDING, Sidney C. Anthony and John L. Vaughn Defendants-Appellants.

Nos. 94-2975, 94-2976 and 94-2977.

United States Court of Appeals Seventh Circuit.

Argued Feb. 9, 1995.

Decided April 14, 1995.

Michael Jude Quinley (argued), Office of the U.S. Atty., Criminal Div., Fairview Heights, IL, for plaintiff-appellee.

Gene Gross (argued), Reed, Heller, Mansfield & Gross, DuQuoin, IL, for Alice Blanding.

William A. Alexander, Gene Gross (argued), Troutt, Alexander, Popit & Warner, Benton, IL, for Sidney C. Anthony.

David M. Williams, Gene Gross (argued), Fairfield, IL, for John L. Vaughn.

Before FAIRCHILD, CUMMINGS and CUDAHY, Circuit Judges.

CUMMINGS, Circuit Judge.

Defendants Alice K. Blanding, her son John L. Vaughn, and Sidney Cornell Anthony were indicted and tried together for conspiracy to possess with the intent to distribute cocaine base and various distribution offenses in violation of 21 U.S.C. Sec. 841. After a jury convicted all three of conspiracy as well as individual drug distribution counts, the district judge sentenced Blanding to 66 months', Anthony to 120 months', and Vaughn to 63 months' imprisonment. Defendants now challenge their convictions on a number of grounds, but we affirm.

FACTS

The drug investigation that netted defendants Blanding, Anthony and Vaughn centered around the southern Illinois town of Colp, a hamlet of about 300 residents. Using several local residents as informants and relying on controlled buys, several of which were secretly recorded, Illinois state police investigators uncovered what they alleged was a network of drug dealers relying for its main supply on Buford and Robert Lewis, two brothers from nearby Carbondale. According to the superseding indictment filed against the named defendants, Buford Lewis supplied both Anthony and an individual named Leonard Bowen with cocaine base; Bowen in turn supplied Blanding and Vaughn with the drug. The indictment also alleged that each of the three defendants made a number of individual sales of cocaine base in amounts ranging from .1 to 1.4 grams.

Police arrested ten suspects, including the three defendants, in early November 1993. Several of the suspects pleaded guilty; the grand jury returned an indictment against defendants and one additional individual, Brandon A. McKinney. McKinney subsequently pleaded guilty as well, but the remaining defendants went to trial on the conspiracy and distribution charges in April 1994.

ANALYSIS

Defendants mount several joint challenges to their convictions.

Alleged unconstitutionality of sentencing provisions of 21 U.S.C. Sec. 841 with respect to cocaine base

Defendants claim that the disparate statutory treatment of convictions for distribution of cocaine, as compared to cocaine base, violates constitutional guarantees of equal protection. However, as defendants themselves concede, "[v]irtually every Federal Court with the opportunity to address the equal protection argument [including this Circuit] has rejected it" (Pl.Br. 21). We are not persuaded to depart from recent Circuit precedents rejecting the equal protection claim. See, e.g., United States v. Chandler, 996 F.2d 917 (7th Cir.1993) (defendant failed to establish discriminatory intent of sentencing scheme, which passed muster under rational basis scrutiny); United States v. Lawrence, 951 F.2d 751 (7th Cir.1991) (sentencing scheme is rationally related to Congress' particular concerns about cocaine base). Defendants also urge us to find that the term "cocaine base" is ambiguous and to reject an enhanced penalty under the rule of lenity, but we believe that Congress has defined the substance--and its intention to impose punishment befitting the crime--with appropriate clarity.

Multiple conspiracies instruction

Defendants also challenge the district court's refusal to adopt their proposed instruction number 5, which dealt with multiple conspiracies. As discussed in greater detail below, the proof in this case may support a theory of multiple conspiracies, and an instruction advising the jury as to its responsibilities under that theory was proper. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (error where single conspiracy charged, eight or more separate conspiracies proved, and no multiple conspiracies instruction). What defendants fail to acknowledge is that the court did give a multiple conspiracy instruction, albeit worded slightly differently than the one proposed by defense counsel. ¹ We have previously approved the instruction that was actually given to the jury, United States v. Canino, 949 F.2d 928, 940-41 (7th Cir.1991), certiorari denied, 503 U.S. 996, 112 S.Ct. 1701, 118 L.Ed.2d 410, and see no reason why it was inappropriate here. ²Admissibility of co-conspirator statements

Defendants claim that the district court erred when it admitted certain evidence as non-hearsay pursuant to Fed.R.Evid. 801(d)(2)(E), which governs co-conspirator statements. ³ At a pre-trial motion hearing, the district judge determined from his own review of the proffers and audiotapes (primarily taped "overhears" of controlled purchases) made by a number of unindicted individuals that these individuals were members of the charged conspiracy, and hence admitted their statements subject to objection at trial (Mot.Hrg.Tr. 66-67). Defendants challenge as a violation of due process the trial judge's decision to admit these statements without making explicit findings as to their relevance or, the defense argues, subjecting the statements to "searching scrutiny" regarding their reliability (Pl.Br. 37).

In making a preliminary determination as to the admissibility of co-conspirator statements, the district judge simply followed our case law. In United States v. Santiago, 582 F.2d 1128 (7th Cir.1978), we held that statements of unindicted co-conspirators are admissible if the government convinces the court, as a preliminary matter and by a preponderance of the evidence, that a conspiracy existed, that the defendant and the declarant were members thereof, and that the proffered statements were made during the course of and in furtherance of the conspiracy. Id. at 1134-35. The court can then admit the statements subject to its later determination that the government proved these foundational elements at trial. Id. at 1131.

In recent years we have set forth additional pretrial methods, beyond the proffer and proof used in this case, by which a district court can make a Santiago admissibility determination. See, e.g., United States v. Cox, 923 F.2d 519, 526 (7th Cir.1991) (reviewing additional methods of making admissibility determinations). These methods have, if anything, expanded the discretion of trial judges in deciding how to handle co-conspirator statements; this Court has not, beyond advocating some sort of pretrial review, felt it necessary to set stricter parameters for such review. Beyond a conclusory allegation that the trial judge in this case was too hasty, there is nothing in defendants' argument that suggests the court exceeded its powers.

Indeed, the district court conditionally admitted the statements, pursuant to Santiago, and repeatedly offered the defendants the opportunity to mount a further challenge at trial if the government failed to lay a proper foundation for admission (Mot. Hrg.Tr. 27, 28, 29, 67). Defense counsel did not exercise this option. To the extent that defendants' challenge is viewed as a substantive objection to the admission of specific statements, their failure to preserve this claim at trial with contemporaneous objections is a forfeiture. See Prymer v. Ogden, 29 F.3d 1208, 1213 (7th Cir.1994) (failure to object at trial forfeits challenge on appeal), certiorari denied, --- U.S. ----, 115 S.Ct. 665, 130 L.Ed.2d 599. Moreover, defendants have made no showing of prejudice from the admission of co-conspirator statements. This challenge, too, falls short.

Sufficiency of the evidence

Defendants also contend that there was inadequate evidence to support the jury's finding that they were members of the charged conspiracy. While conceding they engaged in spot sales of cocaine base, Blanding, Vaughn and Anthony each insist the evidence did not support a finding that they conspired together as traffickers. Thus, they insist, their convictions on the conspiracy count must fail.

Presented with a sufficiency of the evidence challenge, this Court reviews the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the government, and will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Byerley, 999 F.2d 231, 234 (7th Cir.1993) (citations omitted). A mere scintilla of evidence, however, will not suffice; there must be "substantial" evidence that the defendant committed the charged crime. United States v. Durrive, 902 F.2d 1221, 1228 (7th Cir.1990).

At trial, the jury heard testimony from defendants Blanding and Anthony (Vaughn called no witnesses and did not testify), police informants Harry Dean Collins, Mark Malone and Donna Harper, and several other individuals named in the indictment including Bowen, McKinney, George "Jay" Wright and Abraham Flagg. For purposes of brevity, only the evidence relevant to our disposition of defendants' appeal is summarized below. As it must be in a sufficiency of the evidence challenge, this evidence will be viewed in the light most favorable to the government.

1. Harry Dean Collins

Collins testified that Bowen and he "dropped" drugs that they had obtained from the Lewis brothers to Blanding and other residents of Colp (Tr. 116). He also testified that he purchased cocaine from Blanding, Vaughn, and Anthony on various occasions (Tr. 126, 133), that he bought drugs from Blanding while Vaughn was present (Tr....