U.S. v. Cooper

• Decision Date: 04 November 1991
• Docket Number: Nos. 90-1677,90-2523,s. 90-1677
• Citation: 942 F.2d 1200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry D. COOPER and Daryl O. McCleese, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1200

942 F.2d 1200

UNITED STATES of America, Plaintiff-Appellee, v. Larry D. COOPER and Daryl O. McCleese, Defendants-Appellants.

Nos. 90-1677, 90-2523.

United States Court of Appeals Seventh Circuit.

Argued May 14, 1991.

Decided Sept. 11, 1991.

Rehearing Denied Nov. 4, 1991.

Andrew B. Baker, Jr., Asst. U.S. Atty. (argued), Office of U.S. Atty., Dyer, Ind., David H. Miller, Asst. U.S. Atty., Office of U.S. Atty., Fort Wayne, Ind., for U.S., plaintiff-appellee.

N.C. Deday-LaRene (argued), Detroit, Mich., for Daryl O. McCleese.

Frank J. Gray (argued), Beckman, Lawson, Sandler, Snyder & Federoff, Fort Wayne, Ind., for Larry D. Cooper.

Before CUDAHY and MANION, Circuit Judges, and WILL, Senior District Judge. ^*

MANION, Circuit Judge.

Larry Cooper and Daryl McCleese were charged in a five-count, six-defendant cocaine distribution conspiracy in Fort Wayne, Indiana. Cooper went to trial and was convicted; McCleese pleaded guilty to two counts. On appeal they raise a host of issues. We affirm.

I. Proceedings

In August of 1988, a federal grand jury indicted Cooper and McCleese, along with William Comer, Richard Fisher, Robin Arnett and Greg Pierson, for their parts in a conspiracy to distribute cocaine. All six defendants were charged in Count I with conspiracy to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. McCleese also was charged in Count III with using and carrying two firearms in connection with the offense of conspiracy to distribute cocaine, in violation of 18 U.S.C. § 924(c).

Cooper and Pierson were the only defendants who proceeded to trial. Before the other defendants pleaded guilty, however, Cooper sought to sever his trial, arguing that there was very little evidence against him as compared to the other defendants. Cooper also filed a motion in limine that sought to prevent the government from eliciting evidence about a prior cocaine possession conviction involving Cooper and McCleese. The court, following briefing and a hearing, denied the motion in limine in an August 29, 1989 written order. Cooper and Pierson were tried before a jury on December 4 and 5 of 1989. Cooper was convicted of conspiracy to distribute cocaine, and was sentenced to 135 months imprisonment and four years of supervised release. Pierson was acquitted.

McCleese pleaded guilty to both counts pursuant to a plea agreement. In the plea agreement McCleese admitted he was the organizer and leader of five or more persons in a conspiracy to distribute between five and 14.9 kilograms of cocaine. He also acknowledged that he "used or carried two firearms" in connection with the conspiracy, in that he accepted delivery of a large quantity of cocaine and had on hand about $135,000 in cash from his cocaine sales while possessing the firearms in his house. McCleese also agreed not to contest the forfeiture of cash, jewelry, two firearms, an automobile and a motorcycle that were proceeds or derived from proceeds of his criminal activity. The parties stipulated to the offense level the parties believed McCleese deserved under the guidelines, although those stipulations were not binding on the court. McCleese further agreed to testify truthfully at the trial of any co-conspirators. On March 10, 1989, McCleese pleaded guilty to both charges against him pursuant to the plea agreement, and provided the necessary verbal affirmations regarding his guilty conduct to the district court as required by Fed.R.Crim.P. 11(c).

But McCleese reconsidered portions of his plea, and on August 29, 1989 filed a motion to set the plea aside. McCleese argued in the motion that he should be allowed to withdraw his guilty plea on Count III because there was no factual basis for the firearms charge. ¹ Following a hearing, the court on November 1, 1989 denied the motion in a written order. McCleese testified as a government witness in the trial of Cooper and Pierson on December 4, 1989, and Cooper called him as a defense witness the next day. Also on December 5, McCleese changed his mind again, this time moving to withdraw his motion to set aside his guilty plea and asking the court to proceed with sentencing in accordance with the plea agreement. On December 18, 1989, the court accepted that motion during a hearing on disputed sentencing issues. Following briefing by the parties, on May 17, 1990 the court in a written order decided the disputed issues in favor of the government, concluding that McCleese was responsible for between five and 14.9 kilograms of cocaine, that the disputed property was subject to forfeiture, that McCleese's offense level should be increased two levels for obstruction of justice, and that McCleese was not entitled to an acceptance of responsibility reduction. On July 11, 1990, McCleese was sentenced to 235 months imprisonment on Count I with four years supervised release and five years imprisonment on Count III, to run consecutively to the Count I sentence. The court also ordered the forfeiture of cash and property obtained through the conspiracy.

II. Facts

A. Evidence From Cooper's Trial

McCleese, a gambler from Fort Wayne, bought cocaine from Richard Fisher of Florida and distributed it to a number of people in Fort Wayne and Detroit. William Comer, who testified pursuant to a plea agreement, was one of his regular customers, purchasing about 10 ounces per month between 1985 and 1988. Comer said he originally sold to Cooper, but in 1986 McCleese became Cooper's main supplier, although Comer twice sold cocaine to Cooper in 1988, once when McCleese ran out and another time when McCleese was out of town. On one occasion Cooper told Comer he needed a few ounces more for his customers from Ohio. Comer testified that Cooper was selling the cocaine he received to people "in the bars."

McCleese, who said at his change of plea hearing that he conspired with Cooper and others to distribute cocaine, testified at Cooper's trial that Cooper was not part of the conspiracy. McCleese said he thought the cocaine he sold Cooper was for Cooper's own use, or for Cooper's addicted wife, or to "part[y] with broads." McCleese said he never delivered ounce quantities to Cooper; however, he and Cooper were arrested after he handed Cooper an ounce of cocaine in 1987 that Cooper delivered to an informant. Both pleaded guilty to misdemeanor possession of cocaine charges. McCleese testified that he did not know Cooper was selling cocaine. McCleese and Cooper had been friends for about 10 years; Cooper lived with McCleese for a short period of time. Cooper learned of the investigation of McCleese and twice warned him about it.

Greg and Michelle Keller testified that they purchased half an ounce of cocaine per month from Cooper from January through August of 1988. Jeff Keller said he received cocaine from Cooper during the same period, and that he saw Cooper provide cocaine to other friends.

Cooper testified that he started using cocaine two-and-a-half years before trial, and that he gave some to his wife and her friends. He said he did not sell cocaine to the Kellers, but did share some with them socially. He denied purchasing any cocaine from Comer, but admitted purchasing cocaine from McCleese.

B. Evidence From McCleese's Hearings

1. Guns.

The FBI obtained arrest warrants for McCleese, Fisher, Comer and Arnett and a search warrant for McCleese's residence. On August 7, 1988, federal agents watched Fisher arrive in Fort Wayne and check into a motel across the street from McCleese's residence. Fisher phoned McCleese and McCleese went to the motel to meet Fisher. McCleese then returned home and Fisher drove his Cadillac into McCleese's garage. About 20 minutes later the agents entered McCleese's home to execute the search and arrest warrants.

McCleese was arrested as he came out of the rear bedroom; Fisher was arrested in the rear bedroom. In that bedroom the agents found $135,000 in cash in a compartment in the headboard of the bed. One gun was laying in the open on top of the headboard, within a few feet of the cash. Another gun was found in a robe in the closet. A triple beam scale of the type used in weighing drugs was found in the kitchen. An electronic anti-bugging device was discovered in the living room, along with suspected drug records. Five kilograms of cocaine were found in a secret, locked compartment behind the rear seat of Fisher's Cadillac. Fisher had possession of the key to the compartment.

2. Quantity of drugs.

McCleese testified that he personally handled only about three-and-a-half kilograms of cocaine, but that co-conspirator Comer handled enough cocaine to bring the quantity over five kilograms. He explained that he began obtaining cocaine for Comer in 1985, and that Comer asked him to be his partner in 1987. Comer testified that McCleese was receiving three or four kilograms of cocaine every 10 days. Comer said he was never there for delivery, but that on six to eight occasions he saw the cocaine at McCleese's house shortly after delivery in the garbage can where it was stored by McCleese.

3. Obstruction of justice.

Comer testified that McCleese had a copy of Comer's plea agreement, which revealed Comer's cooperation with authorities, and was showing it to other inmates at the Metropolitan Confinement Center where McCleese and Comer were incarcerated. McCleese sent a message to Comer that Comer did not have to testify as he had planned. Arnett testified that McCleese frequently called her to find out how she planned to testify. Arnett said she thought McCleese was capable of killing people and that she was afraid to testify. Terry Fey, who bought cocaine from McCleese, Comer and Arnett, testified that he was in the same cell block as Cooper, and that Cooper told him McCleese was angry that others were testifying against him. Fey said he was nervous about testifying because he did not want to be killed, and feared McCleese was capable of murder. Fey told Arnett that Cooper said she...