U.S. v. Byerley, 91-3625

Decision Date13 July 1993
Docket NumberNo. 91-3625,91-3625
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph BYERLEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Andrew B. Baker, Jr., Asst. U.S. Atty., Dyer, IN, Robert Gevers, Fort Wayne, IN (argued), for U.S.

Suzanne Philbrick, Chesterton, IN (argued), for Joseph Byerley.

Before RIPPLE, KANNE, Circuit Judges, and WILLIAMS, District Judge. *

ANN CLAIRE WILLIAMS, District Judge.

Joseph Byerley and Randy Taylor were charged in a one count indictment with conspiring to distribute cocaine "together and with others known and unknown to the Grand Jury" in violation of 21 U.S.C. § 846. The two defendants were tried together. At the close of the government's case, Taylor was acquitted. The jury found Byerley guilty and he was sentenced to 151 months in prison.

On appeal, Byerley challenges the sufficiency of the evidence as well as certain remarks made by the prosecutor during closing arguments. For the following reasons, we affirm Byerley's conviction.

Background

This case arose out of an investigation of Bill Johnson by the Fort Wayne, Indiana Police Department and Allen County Drug Task Force. On December 12, 1989, Matt Diamond was arrested after buying 3 ounces of cocaine from Johnson. After his arrest, Diamond agreed to cooperate by assisting the officers in making a case against Johnson, his supplier.

On December 13, 1989, the police obtained and executed a search warrant on Johnson's residence. During this search, the police seized approximately $49,000.00 in cash, a loaded .45 caliber handgun, 7 boxes of 9 millimeter ammunition, several canisters with fake bombs used to store and conceal items, 2 explosive devices, a Port-O-Gram electronic scale, 2 ziploc baggies filled with a brownish substance, 2 empty plastic jars of inositol powder which is used to cut cocaine, a metal sifter, 2 pieces of glass with cocaine residue, a razor blade, and a small amount of cocaine from Johnson's home. After the execution of the search warrant, Johnson was interviewed and agreed to cooperate with the Allen County Drug Task Force by providing information regarding his cocaine distribution network.

On the evening of December 13, 1989, Johnson made a recorded phone call to Byerley, his supplier. Johnson began talking with Byerley about 3 "pizzas," which was the code the men had developed to mean kilograms of cocaine. After Byerley had Johnson call him back on a different telephone line, the two discussed the cost of buying 3 kilograms of cocaine. They also discussed how to move the cocaine from Florida, where Byerley lived, to Indiana, where Johnson resided. The conversation ended with Byerley's request that Johnson give him time to get some prices and then call him back.

On December 14, 1989, Johnson made another recorded phone call to Byerley, and Byerley told Johnson he was going to pass on the deal. Byerley also wanted to know if everything was alright in Fort Wayne because he had heard something strange about Diamond. Johnson assured Byerley that everything was fine.

Johnson told the agents and testified at trial that he began buying cocaine from Byerley in March 1987 and continued to buy and sell this cocaine through August 1989. Johnson purchased 7-8 kilograms of cocaine from Byerley during this time period, paying approximately $18,000.00 per kilogram. Johnson followed the same routine each time he purchased cocaine from Byerley. Johnson would bring his money to Florida, give it to Byerley, and, together, they would meet with Byerley's supplier, Mike Perez, to get the cocaine. On one occasion, they obtained the cocaine from another unknown individual because Perez could not be contacted.

Initially, Johnson brought the cocaine back to Fort Wayne for his own use. He packed the cocaine in coffee grounds as Byerley had showed him to avoid detection. However, as the amounts became larger and he became concerned about highway patrol profile checks, Johnson paid couriers to transport the cocaine by car or truck from Florida to Fort Wayne without telling the couriers what was in the packages. Johnson would then sell the cocaine by the ounce to individuals in the Fort Wayne area. Johnson's customers included Diamond, Jerry Moore, Kevin Hanefeld, and several others who would in turn sell the cocaine to others.

In July 1990, Johnson traveled to Florida with two Allen County Drug Task Force officers in an attempt to identify Byerley and Perez. Although Johnson identified the home of Byerley's neighbors, Robert and Iris Agras, as the house where he and Byerley once retrieved approximately $100,000.00 in spending money from a brief case in an hallway attic, they were not contacted by the police.

Tina Bennett, Byerley's ex-girlfriend and the mother of his child, testified at trial that from 1985-1988, before moving to Fort Wayne, she and Byerley lived in Florida, and they both knew Robert and Iris Agras, and Perez. She denied knowing anything about Byerley's involvement in cocaine trafficking. However, she admitted that Johnson visited Byerley in Florida during the spring of 1987 and she called Byerley in December 1989 to tell him about Diamond's arrest.

In his trial testimony, Byerley denied any involvement with Johnson, the Agrases, Perez, or anyone else involved in the distribution of cocaine, although he confirmed that Johnson visited Florida in March 1987. Byerley also admitted that he knew Johnson was talking about cocaine in their December 13 and 14, 1989 telephone conversations even though cocaine was not specifically mentioned.

Discussion

Byerley contends that the government failed to present sufficient evidence to sustain his conviction for conspiracy to distribute cocaine. Specifically, Byerley asserts there was not sufficient evidence to establish the existence of a conspiracy between him and "others known and unknown to the grand jury," particularly in light of his codefendant's acquittal of the conspiracy charge.

Byerley bears a heavy burden to sustain this challenge. United States v. Hernandez, 948 F.2d 316, 321 (7th Cir.1991); see United States v. Briscoe, 896 F.2d 1476, 1504 (7th Cir.), cert. denied sub nom., Usman v. United States, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). An appellate court must uphold a conviction if, "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) (emphasis in original). An appellate court must not weigh the evidence nor assess the credibility of the witnesses. United States v. Ramirez, 796 F.2d 212, 214 (7th Cir.1986); United States v. Wilson, 715 F.2d 1164, 1173 (7th Cir.), cert. denied sub nom., Williams v. United States, 464 U.S. 986, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983). "Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilty beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988) (quoting United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985)).

Having articulated the applicable standard, we turn to the law of conspiracy. A conspiracy consists of a combination or confederation of two or more individuals formed for the purpose of committing a criminal act. United States v. Hedman, 630 F.2d 1184, 1192 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). However, the parties involved in a conspiracy do not have to know the other conspirators or participate in every aspect of the conspiracy. United States v. Davis, 838 F.2d 909, 913 (7th Cir.1988); United States v. Noble, 754 F.2d 1324, 1329 (7th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985). As long as the conspiracy continues and its goal is to achieve a common objective, it is sufficient that a party have reason to know that others were involved in the conspiracy. See Briscoe, 896 F.2d at 1505; Noble, 754 F.2d at 1329.

Moreover, in establishing the existence of a conspiracy or an individual's participation therein, it is permissible for the jury to consider circumstantial evidence because, by its very nature, a conspiracy "is conceived and carried out clandestinely, and direct evidence of the crime is rarely available." United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983) (quoting United States v. Washington, 586 F.2d 1147, 1153 (7th Cir.1978)); see also Briscoe, 896 F.2d at 1505. Therefore, "not only is the use of circumstantial evidence permissible, but circumstantial evidence may be the sole support for a conviction." United States v. Reed, 875 F.2d 107, 111 (7th Cir.1989) (quoting United States v. Vega, 860 F.2d 779, 793-94 (7th Cir.1988)) (emphasis in original).

Contrary to Byerley's assertion, Taylor's acquittal does not mean that Byerley's conviction cannot stand. Byerley's conviction will stand as long as the evidence adequately supports a finding that Byerley conspired with "others known or unknown to the grand jury" as charged in the indictment. See United States v. Mancari, 875 F.2d 103, 105 (7th Cir.1989); United States v. Onick, 889 F.2d 1425, 1432 (5th Cir.1989).

We agree with the government that there are two sources of evidence which adequately support Byerley's conspiracy conviction: Johnson's testimony and the December 13 and 14, 1989 recorded telephone conversations between Johnson and Byerley. 1 Johnson testified at trial that Byerley was his cocaine source for approximately 2 1/2 years, supplying him with 7-8 kilograms of cocaine during that time period. Johnson had the cocaine transported to Fort Wayne by various couriers where he then sold it to various customers. These customers then sold the cocaine to...

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