U.S. v. Canoy

• Decision Date: 20 October 1994
• Docket Number: No. 93-3315,93-3315
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marius CANOY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 893

38 F.3d 893

UNITED STATES of America, Plaintiff-Appellee, v. Marius CANOY, Defendant-Appellant.

No. 93-3315.

United States Court of Appeals Seventh Circuit.

Argued April 21, 1994.

Decided Oct. 20, 1994.

Madeleine S. Murphy, Asst. States Atty., argued, Barry Rand Elden, Jerome N. Krulewitch, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Christopher W. Graul, Stanley L. Hill, Hill & Associates, James Darryl Tunick, argued, Chicago, IL, for defendant-appellant.

Before CUMMINGS, MANION, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

A jury convicted Marius Canoy of making a telephone call to the Kemmerer Bottling Company ("Kemmerer") on March 28, 1989, and falsely representing that the Tylenol in the company's medicine cabinet had been tainted with cyanide. In sentencing Canoy for this offense, the district court initially departed downward from the applicable Sentencing Guidelines range based on Canoy's extraordinary family circumstances. On reconsideration, however, the district court concluded that our decision in United States v. Thomas, 930 F.2d 526 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991), prohibited a departure on that ground, and it thus resentenced Canoy at the very bottom of the Guidelines range. In this appeal, Canoy raises several challenges to his conviction. He also asks that we revisit the holding in Thomas that even extraordinary family circumstances may never support a downward departure from a Guidelines sentencing range. We reject Canoy's attempts to overturn his conviction, yet because we find his challenge to our Thomas decision well-taken, we vacate his sentence and remand for resentencing.

I. BACKGROUND

Shortly before 3:00 p.m. on March 28, 1989, Catherine Claassen, a payroll clerk at a Kemmerer bottling plant, picked up the telephone of an absent coworker and heard a male voice with a foreign accent say, "Your Tylenol in the medicine cabinet is laced with cyanide." "Pardon me" was Claassen's response, and the man then repeated that the Tylenol in the medicine cabinet had been laced with cyanide. Claassen hung up the phone and immediately reported the call to her supervisor. The two then retrieved the Tylenol packages from the medicine cabinets and took them to the company's vice president of human resources, who contacted the United States Food and Drug Administration (the "FDA"). The FDA subsequently tested the Tylenol packages for cyanide, but the tests were all negative.

The materials in Kemmerer's medicine cabinets, including the allegedly tainted Tylenol packages, had been supplied by Safety Plus, a first aid and safety supply company owned by Allen Jones. Before becoming a customer of Safety Plus in January or February 1987, Kemmerer had received its medical supplies from Zee Medical Service ("Zee"), Jones' former employer and, coincidentally, the employer of defendant Canoy. In 1988 and 1989, Zee and Safety Plus competed for customers in the thirty-mile radius where Safety Plus conducted business, although Safety Plus had obtained between eighty and ninety percent of the customers in that area. ¹ Canoy was the Zee salesperson assigned to the territory that encompassed the Safety Plus sales area, and Zee compensated Canoy solely on the basis of his sales commissions.

Near the end of 1988 and early in 1989, Jones and/or Safety Plus began to receive or became the object of a number of harassing telephone calls. For example, in November 1988, Jones received a call from a man who purported to represent a prospective Safety Plus customer. The man wanted to place an unusually large order contingent on delivery by 5:00 p.m. that day. Jones immediately realized the order was fictitious. Indeed, he recognized the man's voice as that of Canoy and said, "Look, Marius, why don't you just go back to work and leave me alone."

In the same time period, a number of Safety Plus customers received calls in which a man indicated that the customer owed money to Safety Plus. For instance, Albert Cohn, the owner of a steel company, called Jones on March 13, 1989, to ask why Jones had reported his company to a collection agency. It turned out that Cohn had received a call from a man who purported to represent a collection agency and who claimed that Cohn's company had failed to pay its Safety Plus bill. At the time, Cohn's company did not owe Safety Plus any money and was not even a Safety Plus customer. Jones assured Cohn that Safety Plus had not reported his company to a collection agency, and Jones told Cohn that a number of his customers had been complaining of similar calls. Cohn received a call from the same man a week later, and the man again purported to represent a collection agency. Cohn recognized the man's voice as that of the Zee salesman who previously had called on his company.

Also on March 13, 1989, Marlene Migliorini, a lumber company manager, called Jones to ask why he had reported the lumber company to the Dunn & Bradstreet collections department. Jones assured Migliorini that he had not and that the lumber company owed Safety Plus no money. Yet Migliorini received a second call after talking to Jones, again from a man purporting to be a Dunn & Bradstreet employee. This time, the man told Migliorini that the company's credit rating had been damaged by its outstanding debts to Safety Plus. Migliorini called Jones a second time, and he again assured her that Safety Plus had not reported the lumber company to Dunn & Bradstreet. During the same time period, Migliorini received at least three visits from a Zee salesman. When Migliorini told the man that her company purchased its medical supplies from Safety Plus, he asked her to reconsider because Safety Plus was having financial difficulties and would soon go out of business. During the man's next visit, after Migliorini again stressed her intention to remain with Safety Plus, the salesman became quite upset. Migliorini eventually placed a sign on the lumber company's medicine cabinet indicating that Zee should not restock the cabinet and that the lumber company would not pay if it did.

On March 23, 1989, the harasser apparently decided to try a different tactic. On that date, flowers were delivered to one of Safety Plus' female employees. The attached card indicated they had been sent by Jones, yet Jones explained at trial that he had sent no flowers. On the same day, Domino's Pizza called Jones to inform him that it would be delivering the pizza he had ordered but that he should order from a different Domino's location in the future. Jones testified that he had not ordered a pizza. Finally, Lucenta Tire Company called with a question about the four tires Jones had ordered C.O.D. Again, Jones told the jury that he had not ordered any tires. After this final call, Jones reported the harassment to the police. ²

The following day, Jones' wife received a threatening telephone call at home. The caller told Jones' wife that her husband owed him a lot of money, and when she asked the caller to identify himself, the man told her, "I know where you live and I'm going to come and blow your head off." Jones' wife could not identify the man's voice.

Telephone records for March 1989, which the government produced at trial, showed that calls from a pay telephone to Cohn's steel company and to Migliorini's lumber company on March 13, 1989, had been billed to Canoy's home telephone number. The records also showed that on March 23, 1989, calls from a pay telephone to Lucenta Tires, a flower shop, and to Domino's Pizza had been billed to the same number. The records, however, did not reflect any calls to Kemmerer's bottling plant on March 28, yet they showed a call billed to Canoy's home telephone number that had been placed from a pay telephone at 2:49 p.m. on that date, suggesting that Canoy had been at a pay telephone near the time that the threatening call had been made to the Kemmerer plant.

Canoy testified in his own defense at trial. He admitted placing the harassing telephone calls to Safety Plus' present or potential customers, and he also admitted ordering the flowers, pizza, and tires. He explained that he had done these things merely to annoy a competitor, that he believed it had been the right thing to do, and that it was simply the nature of the business. Yet Canoy denied making the cyanide threat to the Kemmerer bottling plant. The jury apparently found this denial not credible and convicted Canoy of violating 18 U.S.C. Sec. 1365(c). ³ The district court eventually sentenced Canoy to 27 months in prison.

II. DISCUSSION

A. Challenges to Conviction

1.

Canoy's first and most substantial challenge to his conviction relates to the government's use of a peremptory strike during jury selection to excuse Daniel Ma, a man of Asian descent. Canoy was born and spent most of his life in the Philippines, arriving in the United States in 1985. He maintains that the government engaged in purposeful discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when it struck the only individual on the venire who was of Asian descent.

The Supreme Court held in Batson that the Equal Protection Clause of the Fourteenth Amendment grants to defendants "the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria" and that it therefore prohibits purposeful racial discrimination in the use of peremptory challenges. 476 U.S. at 85-86, 106 S.Ct. at 1717; see also United States v. Ferguson, 935 F.2d 862, 864 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 807 (1992). ⁴ Batson applies to federal criminal prosecutions through the Fifth Amendment's Due Process Clause. United States v. Chandler, 12 F.3d 1427, 1430 (7th Cir.1994); United States v. Williams, 934 F.2d 847, 849 n. 1 (7th Cir.1991). In Batson and later cases, the Supreme Court has...