U.S. v. Burrell

• Decision Date: 10 June 1992
• Docket Number: Nos. 91-1808,s. 91-1808
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ellis BURRELL, Billy J. Henry, Jon P. Hammonds, William D. Hatch, John Jones, and Steven E. Williams, Defendants-Appellants. , * 91-2089, 91-2090, 91-2091, 91-2113 and 91-2114.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 976

963 F.2d 976

UNITED STATES of America, Plaintiff-Appellee, v. Ellis BURRELL, Billy J. Henry, Jon P. Hammonds, William D.

Hatch, John Jones, and Steven E. Williams,

Defendants-Appellants.

Nos. 91-1808, ^* 91-2089, 91-2090, 91-2091,

91-2113 and 91-2114.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 16, 1992.

Decided May 11, 1992.

Rehearing Denied June 10, 1992 in Nos. 91-2089 and 91-2091.

Richard N. Cox, Asst. U.S. Atty., Danville, Ill., for the U.S.

Wayne N. Horne, Gholar & Horne, Chicago, Ill., Caroline B. Briggs, Flora, Ind., for Ellis Burrell.

David S. Mejia, argued, Oak Park, Ill., Felix A. Vazquez, Chicago, Ill., for Steven E. Williams.

Charles E. Ruch, Jr., argued, Petersen, Deck, Ruch & Baron, Kankakee, Ill., for Billy J. Henry.

David J. Ryan, argued, Dukes, Martin, Helm & Ryan, Danville, Ill., for William D. Hatch.

Warren E. White, Asst. U.S. Atty., argued, Danville, Ill., for John W. Jones.

Reino C. Lanto, Jr., argued, Rantoul, Ill., for Jon P. Hammonds.

Before BAUER, Chief Judge, KANNE, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

BAUER, Chief Judge.

The appellants are six defendants convicted of various narcotics and firearm offenses. They raise a barrage of challenges to their convictions and sentences. Finding no merit in these challenges, we affirm.

I. Facts

The defendants were arrested together in Bradley, Illinois, on drug possession, conspiracy, and firearm charges. The groundwork for the reverse-sting operation that led to the arrests began in September 1990. Cary Grant, an Illinois State Police Special Agent, posed undercover as "Jarne", a West-Indian marijuana dealer. Grant met Ralph Collier in Champaign, Illinois. Collier told Grant that some of his Chicago business associates were interested in buying marijuana. Collier arranged a meeting on September 21 between Grant and his Chicago partners at a McDonalds restaurant in Gilman, Illinois.

Grant rode with Collier to the audio-and-videotaped meeting. Steven Williams approached Collier's car and told Grant that he had to speak with Ellis Burrell, who was waiting in another car. After Grant joined Burrell, Jon Hammonds got into the car with Grant and Burrell. At Grant's request, Burrell told Hammonds to wait in Collier's car with Williams. Thus, Williams, Collier, and Hammonds waited in Collier's car, and Grant and Burrell talked in Burrell's car.

Burrell told Grant that his associates could sell 100 pounds or more of marijuana every other day. He warned Grant that he had two guns in the car because he and his associates were uneasy about the meeting. Burrell said that he and Williams usually sent a representative to such meetings. As Grant and Burrell talked, Williams (who acknowledged he was armed) joined them. Although Grant brought marijuana to the meeting to sell, the parties agreed to put off the transaction for at least a day. Burrell gave Grant his pager number and his home phone number so that Grant could reach him directly. Burrell, Williams, and Hammonds left the meeting together.

Negotiations proceeded by phone. A second meeting was arranged between Grant, Burrell, and Williams for September 27 at the Winfield Inn in Bradley, Illinois. At that meeting, Burrell and Williams agreed to buy 500 pounds of marijuana at $750 per pound. Grant agreed to front most of the marijuana on credit so long as Burrell and Williams paid a percentage of the purchase price on delivery. Burrell and Williams agreed to pay the balance of the price within a few days of delivery.

On September 30, in a three-way conversation, Burrell, Williams, and Grant firmed up the terms of the deal. Burrell and Williams still wanted the 500 pounds of marijuana. They grudgingly agreed to make at least a $50,000 down payment, and to make their best efforts to pay more. Williams wanted the deal to go down in his "ballpark." Grant, of course, wanted the deal to be in his territory. Williams reluctantly agreed to let Grant name the location.

Williams paged Grant late on October 1st or early on October 2nd. Williams confirmed that they would have a $50,000 to $85,000 down payment, and that they wanted the 500 pounds of marijuana. Williams still resisted leaving Chicago (where he felt safer) for Grant's territory in Bradley, Illinois. Nevertheless, Williams agreed to call Grant the following day to finalize the deal. Just before midnight the following night, Burrell paged Grant. In another three-way conversation, Burrell and Williams agreed to come to the Winfield Inn in Bradley, Illinois on October 4. Williams and Burrell were to show their money to Grant in Bradley, and Grant agreed to deliver the marijuana the next day in Chicago. Williams warned Grant that he and Burrell "wouldn't be coming alone." Trial Transcript (Tr.) at 332-33. Based upon his experience investigating drug dealing, Grant believed that Burrell and Williams, who are black, would have black bodyguards. All of the men who came with Burrell and Williams from Chicago are black.

Grant and fifteen concealed Illinois State Police Officers waited at the Winfield Inn for Burrell and Williams. At 2:30 p.m Hammonds, accompanied by James Nettles, drove a 1990 Lincoln Continental into the motel parking lot. They slowly circled the lot, scanning the other vehicles in the lot and the surrounding area. Hammonds backed into a space at the south end of the lot, so the car faced north with a view of the lot. Nettles and Hammonds remained in their car.

Then William Hatch and Darren Clarke, driving a black Buick, pulled into the Moose Lodge parking lot located directly south of the Winfield Inn. They got out of the car. Clarke joined Hammonds and Nettles in the Lincoln. Hatch walked around the outside of the motel, and then entered the lobby through the front doors. Shortly after Hatch and Clarke arrived, Burrell and Williams arrived in a pinkish-white van. Williams drove around the motel parking lot for a moment before he parked. Grant left the lobby, and got into the van with Burrell and Williams.

Shortly after the van arrived, Billy Joe Henry and John Jones drove a Ford Taurus with a Chicago parking sticker into an Amoco gas station just north of the Winfield Inn parking lot. One of the police officers was also parked in the Amoco station, pretending to use the pay phone. The officer had parked facing east, and Henry parked just in front of him, facing west. The cars were about 200 feet from the van. Henry watched the van, and Jones scanned the surrounding area. During the fifteen-minute meeting in the van, Jones went into the gas station and bought some sodas and snack food. While walking to and from the station, he kept a close eye on the van.

Negotiations inside the van proceeded. Grant told Burrell and Williams that he had 641 pounds of marijuana from which they could select their 500 pounds. He showed them a "load sheet" that listed the available bales, and the weight per bale. Williams gave Grant $60,000 cash--all three counted it and put it in Grant's briefcase. Williams confirmed that the price was $750 per pound, and that the total price for 600 pounds would be approximately $450,000.

They agreed that Burrell and Williams would keep the money until Grant delivered the marijuana the following day. Grant mentioned that Burrell and Williams had brought their bodyguards with them and said he hoped no one would "stick [him] up". Government's Exhibit 9-1, at 6. Williams did not expressly acknowledge the presence of the bodyguards, but assured Grant, "It ain't gonna be, ain't gonna be all that." Id.

Grant left the van, ostensibly to get a sample of the marijuana, and the police moved in. They arrested everybody. Burrell and Williams were nabbed in the van. Burrell had a loaded 9mm pistol and 43 rounds of ammunition at his feet on the passenger side. Williams was carrying a .45 caliber pistol and a pager. The police found more ammunition and a 12 gauge pump shot gun in the van.

Hatch was arrested in the lobby about ten feet from the pay telephones. The police had seen Hatch with a gun in his hand while he watched the van from the lobby. They found a loaded 9mm pistol on the ledge of one of the phones. Nettles, Hammonds, and Clarke were arrested as they sat in the Lincoln. Although Hammonds and Clarke were unarmed, Nettles had a loaded 9mm pistol.

Henry and Jones were still sitting in the Taurus when they were arrested. Police found another loaded 9mm pistol on the front seat of the Taurus, and a loaded .38 caliber revolver on the floor on the passenger side. Jones had more ammunition for the .38 caliber in his pocket. Henry had one of Jones's business cards in his pocket.

The district court admitted telephone records offered by the government which showed calls between Williams, Burrell, Hatch, and Jones. The records also indicated calls may have been made to Hammonds. Just prior to final arguments, the court allowed the jury to examine the firearms seized during the defendants' arrests. All the guns had been admitted into evidence. They were passed from juror to juror as they sat in the box, and then they were collected. The guns were not sent back to the jury room during deliberations.

All the defendants were charged with various drug and firearms offenses. Count one charged each with conspiracy to possess with intent to distribute 500 pounds of marijuana in violation of 21 U.S.C. § 846. Count two charged them with attempted possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Counts three and four charged Burrell with using and carrying firearms during a drug offense in violation of 18 U.S.C. § 924(c). Williams was also charged under count four. Count five charged Williams with using and carrying a firearm (in addition to the one charged in count four) in connection with a drug offense. Count six charged Burrell with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Counts seven, eight,...