U.S. v. Campbell

• Decision Date: 15 July 2008
• Docket Number: No. 06-3606.,06-3606.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George CAMPBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

534 F.3d 599

UNITED STATES of America, Plaintiff-Appellee, v. George CAMPBELL, Defendant-Appellant.

No. 06-3606.

United States Court of Appeals, Seventh Circuit.

Argued February 12, 2008.

Decided July 15, 2008.

Meghan Morrissey (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Stanley L. Hill (argued), Hill & Associates, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

George Campbell was charged with one count of possessing with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); and with four counts of using a telephone in the commission of a felony drug offense, in violation of 21 U.S.C. § 843(b). A jury convicted Mr. Campbell of all five counts. The district court sentenced him to concurrent prison terms of 48 and 120 months, followed by eight years of supervised release.

For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

A.

In early 2004, Raul Montenegro, a known drug dealer, had several telephone conversations with Mr. Campbell about the possibility of Mr. Campbell's purchasing cocaine from him. On July 7, 2004, Montenegro called Mr. Campbell¹ and stated: "Uh, my friend call me. Probably they they're gonna meet tomorrow for, the, the remember I told you? Probably the one, they want tickets for the, the Big Game." Appellee's App. at 2. Mr. Campbell responded, "Yeah, one ticket or two tickets?" Montenegro said, "Probably one," and explained, "He wanna, he wanna make sure how it, how it is, okay?" Id. Mr. Campbell responded, "Gotcha," and Montenegro told him that he would call him the next day. Id.

On July 8, 2004, after having numerous conversations with Miguel Diaz, his drug supplier, Montenegro called Mr. Campbell and said, "Yeah. Uh, according to everything, I'm going to pick up my lady. You know, my girlfriend, take it with me." Id. at 28. Montenegro and Mr. Campbell then made arrangements to meet at Mr. Campbell's residence. In the interim, Montenegro met with Diaz and picked up one kilogram of cocaine. Later that night, Montenegro called Mr. Campbell and told him that he was about to arrive at Mr. Campbell's residence. Mr. Campbell told Montenegro that he would be home shortly and that he would tell someone at his residence to let Montenegro in.

At trial, Montenegro testified that he entered Mr. Campbell's residence with the one kilogram of cocaine. According to Montenegro, when Mr. Campbell arrived at the residence he explained that there was an unfamiliar car in a nearby parking lot. He asked Montenegro if Montenegro had arrived at the residence alone. Montenegro assured Mr. Campbell that he had done so. Mr. Campbell pointed to the unfamiliar car from the window of the residence, but Montenegro could not identify the vehicle. Still unsatisfied, Mr. Campbell made Montenegro accompany him outside in an effort to have Montenegro identify the unfamiliar vehicle. Montenegro nevertheless could not identify the car.

Prior to leaving Mr. Campbell's residence to inspect the car, Montenegro left the kilogram of cocaine in Mr. Campbell's house, either on a table or on his couch. At trial, Montenegro testified:

AUSA: At some point while you were in the apartment with George Campbell, did you give him the kilogram of cocaine?

MONTENEGRO: Well, actually I left I think on the table or in the couch, something like that. I don't remember where. I put it there because we went outside. I wasn't—I wasn't— not carrying that thing with me outside the house because we were thinking like maybe there was police or something else, so—or rob or something. So I left it there.

* * *

AUSA: [W]as George Campbell there at the table when you took the cocaine out?

MONTENEGRO: When I took it? No, I didn't took it, actually. But he was there but he was— actually we were talking about who was in that car, you know, who could that be. So we didn't pay attention to the—just got out, tried to identify the car.

AUSA: So at any point did you give George Campbell the cocaine while you were in the house?

MONTENEGRO: You mean hand him?

AUSA: Yes.

MONTENEGRO: No.

AUSA: Did you give it to him?

MONTENEGRO: No, we just put it there. I mean, I put it there, actually. He was not worried about who was in. . . .

R.219 at 142-43.

The Government then impeached Montenegro with statements that he had made at his change of plea hearing:

AUSA: [During the change of plea hearing], the Court asked you . . . "then you actually went inside of Mr. Campbell's residence and delivered the kilo of cocaine to Mr. Campbell? And then the two of you left Mr. Campbell's residence? Is that what happened?" And you answered, "yes"?

MONTENEGRO: Yes, correct.

AUSA: But your testimony today is, you didn't give the kilogram—

Id. at 145. Mr. Campbell's counsel objected on the ground that Montenegro's testimony from the change of plea hearing did not contradict his trial testimony. The district court overruled the objection, and the testimony continued:

AUSA: When you pled guilty to these charges and you took an oath before this Judge, you told her under oath that you went inside of Mr. Campbell's residence, and you delivered the kilo of cocaine to Mr. Campbell.

MONTENEGRO: Yes.

AUSA: And you said yes.

MONTENEGRO: Yes.

Id. at 145-46.

After Montenegro and Mr. Campbell went outside to look at the car, Mr. Campbell left the area. Drug Enforcement Administration ("DEA") Special Agent Ryan Rapaszky, who had conducted surveillance at Mr. Campbell's residence throughout the day, confirmed that Montenegro and Mr. Campbell looked closely at the two DEA surveillance vehicles parked in the nearby lot, that Mr. Campbell got into his car for approximately ten minutes and that Mr. Campbell then left the parking lot at approximately 10:40 p.m.

At 10:45 p.m., Mr. Campbell called Montenegro, explaining: "Yea, I'm being followed right now. So I don't know what the hell is going on here man. . . . So you might as well leave." Appellee's App. at 46. Montenegro responded, "Should I leave?" and Mr. Campbell responded, "you might . . . Yeah, you better. I just said I'm being followed." Id. Mr. Campbell did not instruct Montenegro to take the cocaine with him, and Montenegro testified that he left the cocaine on Mr. Campbell's table.

Later that same night and the following day, July 9, 2004, Montenegro and Diaz exchanged several calls. In these phone calls, Diaz, using coded language, inquired about the cocaine. Montenegro could not give Diaz an update because he had not yet spoken to Mr. Campbell. Montenegro had several short telephone conversations with Mr. Campbell, but Mr. Campbell did not give Montenegro an update about the status of the deal. At one point, Montenegro left Mr. Campbell a message: "You there? Call me every five minutes. They want a simple question, you still give me a simple answer. Yes, or not. That's all I want to know. Okay, bye." Id. at 62.

At 1:43 p.m., Mr. Campbell called off the drug deal. Mr. Campbell spoke to Montenegro and stated, "Just, I'm saying no, period." Id. at 66. Montenegro then explained, "Alright, I have to pick it up now. Okay?" Id. Mr. Campbell responded, "Alright, I'm gonna hit you back in half an hour," to which Montenegro replied, "Okay." Id.

On the following day, DEA Task Force Officer George Wodka conducted surveillance at Mr. Campbell's residence, and he discovered in a dumpster near Mr. Campbell's residence a cereal box wrapped in a clear plastic bag. The dumpster was approximately 50 feet from the residence, and there was a clear, unobstructed view of the area from the second floor windows of Mr. Campbell's residence. Officer Wodka testified that there was a brick-shaped object wrapped in duct tape—approximately 978.5 grams of cocaine—inside the cereal box.

The jury also heard the testimony of Task Force Officer Robert Coleman. Officer Coleman testified as to his extensive experience in investigating narcotics offenses, including his knowledge of the use of coded language by narcotics organizations, the means by which narcotics are bought and sold, the wholesale and retail pricing of powder cocaine and the quantities of cocaine that are considered distribution quantities.² Officer Coleman explained to the jury that when narcotics are "fronted" to a customer, it means that the narcotics are provided on credit and are paid for after the customer resells the narcotics. The wholesale price of a kilogram of cocaine in the Chicago area, explained Officer Coleman, was between $17,000 and $25,000. Officer Coleman also testified that one kilogram of cocaine was a distribution quantity.

Officer Coleman further explained to the jury that Montenegro's use of the term "tickets" in conversation with Mr. Campbell meant "kilograms" and that when Mr. Campbell asked Montenegro "one ticket or two," he was asking whether Montenegro had one or two kilograms. R.219 at 86. With regard to another conversation between Mr. Campbell and Montenegro, Officer Coleman opined that Montenegro's use of the phrase "I'm going to pick up my lady . . . [y]ou know my girlfriend" meant that Montenegro was going to go pick up the cocaine, and that Montenegro's reference to picking up the "tickets" meant that he wanted to pick up money from Mr. Campbell. Id. at 92.

B.

At the close of the Government's case, Mr. Campbell moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. The district court reserved the motion. A jury convicted Mr. Campbell of all five counts asserted in the superseding indictment: namely, one count of possessing with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and four counts of using and causing to be used a telephone in the commission of a felony drug offense, in violation of 21 U.S.C. § 843(b).

Mr. Campbell filed his renewed motion for judgment of acquittal and a motion for a new...