U.S. v. Bradley, s. 98-2525

• Decision Date: 28 January 1999
• Docket Number: 98-2783,Nos. 98-2525,s. 98-2525
• Citation: 165 F.3d 594
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Frederick R. BRADLEY, also known as Ricky George, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 594

165 F.3d 594

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Frederick R. BRADLEY, also known as Ricky George,

Defendant-Appellant/Cross-Appellee.

Nos. 98-2525, 98-2783.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 1998.

Decided Jan. 28, 1999.

Suzanne M. Garrison (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Grant J. Shostak (argued), Moline & Shostak, St. Louis, MO, for Defendant-Appellant.

Before BAUER, DIANE P. WOOD, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

There's truth to the old adage that it's best to leave sleeping dogs lie. And so it is that defendants, who benefit from favorable calls under the federal sentencing guidelines, should think more than twice about appealing their cases when their appeals have little likelihood of success. This is so because a defendant's appeal may draw a guidelines cross-appeal when the government would not (probably not, at least) appeal on its own in the first instance. ¹ This is such a case. The defendant's appeal is meritless, and the government--which we can't imagine would have appealed independently--wins its cross-appeal. So our defendant will finish the day worse off than he was before it started. A word to the wise....

A jury found Frederick Bradley guilty on six counts of distributing crack cocaine. All six counts involve substantially the same scenario. In each, an undercover officer (Jerry Simon of the East St. Louis, Illinois, police department) purchased crack from Bradley through an informant. The transactions occurred over a period of a month, and the quo for the cocaine quid was $300, $600, $1,500, $1,500, $550, and $400. In the last deal, Bradley added a gun to the dope he sold to Simon.

Bradley's appeal rests on two claims: insufficiency of the evidence and a failure by the government to prove that crack, as opposed to powder, cocaine was sold.

An insufficiency of the evidence argument is an uphill fight all the way, United States v. Johnson, 152 F.3d 618 (7th Cir.1998), and this one doesn't get out of the starting blocks. The challenge is nothing more than nit-picking over minor discrepancies in the testimony (i.e., did Agent Simon meet surveillance officers at police headquarters or at a Wal-Mart store before going to the site of the last sale?). Bradley points to a number of these minor inconsistencies and concludes his argument by saying:

The testimony given by the officers and informant simply does not fit. Almost all of the details are wrong. Days and meeting places vary, and even who was driving the car, informant or Simon, is not clear. This testimony came from witnesses who allegedly were there. Surveillance team members should at the very least pay attention to detail. After all, it is their job.

With such discrepancies, no rational trier of fact could have found the elements of distribution of cocaine base beyond a reasonable doubt.

We disagree. At best, arguments of minor spats like these are only good (if good at all) in front of juries. They will never carry the day in a court of appeals. The evidence was clearly sufficient to prove Bradley guilty on all counts.

Bradley's other claim is that the district judge committed clear error when he concluded that five of the six sales involved cocaine base in the form of what is commonly known as crack. Findings of fact are clearly erroneous only if they are "without foundation in the evidence." United States v. Monem, 104 F.3d 905, 910 (7th Cir.1997).

We have, in other cases--and United States v. Abdul, 122 F.3d 477 (7th Cir.1997), is as good an example as any--discussed the 1993 clarifying amendments to sentencing guideline § 2D1.1(c) relating to "crack" as a form of cocaine base. We need not reiterate that discussion here. Suffice to say that the government must prove, by a preponderance of evidence, that "crack," a street name for a form of cocaine base, "usually prepared by processing cocaine hydrochloride and...