U.S. v. Campbell

• Decision Date: 08 February 1993
• Docket Number: No. 89-2121,89-2121
• Citation: 985 F.2d 341
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome CAMPBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 341

985 F.2d 341

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

No. 89-2121.

United States Court of Appeals Seventh Circuit.

Argued Sept. 22, 1992.

Decided Feb. 8, 1993.

Stephen J. Liccione, Asst. U.S. Atty., Milwaukee, WI (argued), for U.S.

Jerry B. Kurz (argued), Kathryn Hall, Hall & Kurz, Chicago, IL, for Jerome Campbell.

Before COFFEY and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

Jerome Campbell was indicted on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and three counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). A jury acquitted Campbell on the three possession counts and convicted him on the conspiracy count. Pursuant to the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), the district court sentenced Campbell to 220 months imprisonment. The defendant appeals his conviction and sentence. We affirm.

I. BACKGROUND

Robert Gant was indicted along with Campbell on all four counts. Gant pled guilty to the conspiracy count. He cooperated with Government prosecutors by testifying against his coconspirator Campbell and, in exchange, the three possession counts against him were dropped. Both Gant and Campbell lived in Milwaukee, Wisconsin. According to Gant's testimony, Campbell approached Gant in December, 1987, and stated that he, Campbell, was in the cocaine trafficking business, and asked if Gant would be interested in joining with him as one of his dealers. Gant accepted the offer. Campbell began supplying Gant with cocaine, which Gant would sell on the streets, returning a portion of the proceeds to Campbell. Gant testified that in January, 1988, Campbell supplied him with four ounces of cocaine which Gant sold for $3,600. He turned over a portion of the proceeds to pay Campbell. In February, 1988, Campbell supplied Gant with one-half kilogram of cocaine. Gant again sold the cocaine, and returned a portion of the proceeds to Campbell. In March, 1988, Gant went to Campbell's house to pick up a kilogram of cocaine. While at Campbell's residence, Gant testified that he spotted three other kilograms of cocaine. Gant sold the kilogram Campbell gave him, and paid Campbell $32,000 from the proceeds. In May, 1988, Campbell supplied Gant with another kilogram of cocaine to sell. Gant eventually paid Campbell $32,000 for this kilogram.

In June, 1988, undercover special agents of the Drug Enforcement Administration ("DEA"), began purchasing cocaine from Gant in Milwaukee. In July, during a drug purchase, the agents told Gant that they were interested in buying cocaine in amounts of one kilogram or greater. DEA agent Jeanne Tasch testified that Gant replied that he had a partner and had to check with him in order to supply such large amounts. On July 27, 1988, Tasch and another agent, Ann Judith Lambert met Gant at the Ground Round restaurant in Glendale, Wisconsin, just outside the Milwaukee City limits. The agents told Gant that they had plenty of money and were prepared to purchase two kilograms of cocaine. Gant said he would have to check with his partner, and left to make a telephone call. After two calls, he told the agents that he had reached his partner, and he would be arriving soon. Campbell arrived in a Cadillac about ten minutes later, and sat at the table with Gant and the undercover agents. Gant told Campbell that the agents were interested in purchasing two kilograms of cocaine. Campbell said that would be no problem. Agent Tasch testified that Campbell dominated the ensuing conversation, telling the agents that he had a cocaine source in Los Angeles, California who could supply him with hundreds of kilograms of cocaine. Campbell said the price for the first kilogram would be $25,000 but that he would cut the price in subsequent purchases, and that he was prepared to offer volume discounts. He told the agents that he had come to the Ground Round personally because he would not supply Gant with kilogram-size amounts of cocaine without first ensuring that the buyer was not an undercover police officer. Campbell told the agents that, for the first sale, the exchange of the money and the drugs would occur at a motel where they could examine the cocaine in one room while Campbell's representatives would confirm that the agents had left sufficient money in another room. Campbell told the agents that in the future they would be dealing exclusively with Gant and would never see him again.

The planned two-kilogram sale never occurred because Campbell discovered the identity of the agents. On August 3, 1988, the agents arrested Gant. Shortly thereafter, the agents arrived at Campbell's Milwaukee address. A woman who identified herself as Michelle Wilder answered the agent's knock and told them that Romeo (this was Campbell's nickname) knew they were the police and that he was not in the home. Campbell surrendered to the DEA agents in September, 1988 after negotiating with them from hiding for over a month. Gant testified that after their arrests Campbell directed him to tell law enforcement officials that the Ground Round meeting was not about drugs, but about arranging a "date" with one of the agents. Gant also testified that Campbell threatened him while the two were in a holding area during the trial in an attempt to influence his testimony.

II. CAMPBELL'S CONVICTION

Campbell argues that the Government presented insufficient evidence to support his conviction for conspiring with Gant to distribute cocaine. Campbell maintains that his acquittal on the three possession counts demonstrates that the jury believed that Gant was less than truthful. Consequently, he insists that the jury should not have believed Gant's testimony about the drug conspiracy he and Campbell planned at the Ground Round restaurant. Campbell admits attending the meeting at the Ground Round with the two DEA agents, but denies that it had anything to do with cocaine trafficking.

A defendant urging that his conviction be overturned because it was supported by insufficient evidence carries a heavy burden. United States v. Burrell, 963 F.2d 976, 987 (7th Cir.), cert. denied sub nom. Henry v. United States, --- U.S. ----, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992). We review the evidence in the light most favorable to the Government, and if we determine that a rational jury could have found the defendant guilty, we will affirm the conviction. Id. at 987. In conducting this review, "[w]e will not reweigh the evidence or judge the credibility of witnesses." United States v. Van Wyhe, 965 F.2d 528, 531 (7th Cir.1992). That is the role of the jury, not an appellate court.

The elements of the offense for which Campbell was convicted are clearly established. A conspiracy is a confederation of two or more persons formed for the purpose of committing, by their joint efforts, a criminal act. United States v. Jackson, 974 F.2d 57, 59 (7th Cir.1992). To prove that a defendant was a member of the conspiracy, the Government must demonstrate a participatory link between the conspiracy and the defendant. United States v. Navarez, 954 F.2d 1375, 1380-81 (7th Cir.1992). To establish that participatory link, the Government must offer sufficient evidence to demonstrate that the defendant knew of the conspiracy and that he intended to join and associate himself with its criminal design and purpose. Id. at 1381 (citation omitted). When reviewing conspiracy convictions, we must be certain that the Government presented substantial evidence that the defendant was a conspirator. Burrell, 963 F.2d at 987. The evidence need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt. Van Wyhe, 965 F.2d at 532.

Campbell's conspiracy conviction was supported by more than ample evidence. DEA special agents Tasch and Lambert testified that they met with Gant and Campbell at the Ground Round restaurant to discuss the purchase of two kilograms of cocaine. At that meeting, Campbell, according to the agents, stated unequivocally that he was a cocaine dealer who trafficked in large amounts of the illegal drug. He assured the agents that he could deliver the two kilograms desired, and promised that he could supply them with larger amounts in subsequent deals. Campbell explained to the agents he had a drug supply source in Los Angeles, California who could provide hundreds of kilos of cocaine. Campbell described in detail how the drug purchase would occur at a hotel, and made clear that he would engineer his end of the bargain through Gant, whom he treated as an employee in the drug ring he headed. Gant's testimony corroborated the account given by the two DEA agents. Set against this testimonial evidence is Campbell's bald assertion that the discussion at the Ground Round had nothing to do with drugs. The jury was free to believe Campbell's denials, but it did not. Instead, the jurors chose to believe the testimony given by Gant and the two DEA agents. On appeal, we refuse to second-guess the jury's credibility determinations. Campbell's conviction on the conspiracy count was supported by more than sufficient evidence.

Despite the damning testimony of the DEA agents, Campbell argues that his acquittal on the three possession counts somehow bound the jury to acquit him on the conspiracy count as well. Campbell apparently believes that the three acquittals are conclusive evidence that the jury did not find any of Gant's testimony credible and therefore should not have accepted his testimony about the Ground Round meeting. Initially we note, as set forth above, that in making its case on the conspiracy count, the Government offered not only Gant's testimony, but also the testimony of the two DEA agents who met with Gant and Campbell at the Ground Round. Therefore, even accepting Campbell's mistaken premise that...