U.S. v. Donovan

• Decision Date: 14 July 1994
• Docket Number: Nos. 92-3583,92-3625 and 92-3650,92-3624,s. 92-3583
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven DONOVAN, Vincent C. Donovan, Patrick A. Shea, and Stephen J. Dineen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 908

24 F.3d 908

UNITED STATES of America, Plaintiff-Appellee, v. Steven DONOVAN, Vincent C. Donovan, Patrick A. Shea, and Stephen J. Dineen, Defendants-Appellants.

Nos. 92-3583, 92-3624, 92-3625 and 92-3650.

United States Court of Appeals Seventh Circuit.

Argued Nov. 5, 1993.

Decided May 13, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied July 14, 1994.

Stephen A. Ingraham, Asst. U.S. Atty. (argued), Milwaukee, WI, for plaintiff-appellee.

Robert W. Bertucci, Serpico, Novelle & Navigato, Steven Shamash, Layfer, Cohen & Handelsman, Christopher M. Stone (argued), Chicago, IL, for defendant-appellant.

Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

On January 7, 1992, a grand jury indicted Vincent Donovan, Steven Donovan, Patrick Shea, and Stephen Dineen for conspiring to distribute cocaine. In addition, the indictment charged Vince Donovan with two counts of possession of cocaine with the intent to distribute and with two counts of travelling in interstate commerce to facilitate an illegal act, Steve Donovan with one count of possession of cocaine with the intent to distribute and with one count of travelling in interstate commerce to facilitate an illegal act, and Steve Dineen with one count of travelling in interstate commerce to facilitate an unlawful activity. All four were tried together, and a jury convicted all four on all counts of the indictment. Each defendant appeals his conviction on several grounds, and all but Steve Donovan appeals his sentence. We affirm.

I. Facts

During the last half of the 1980s, Vince Donovan, an erstwhile automobile racer, orchestrated an extensive scheme to distribute cocaine in and around Milwaukee. Donovan's scheme took off in 1985 when he was introduced to a major Columbian drug supplier in Florida. At that time, he bought a few ounces of cocaine. In 1986, Vince brought his brother Steve with him to meet his Florida supplier. At that meeting, Vince Donovan's plan to sell cocaine accelerated as the three men discussed the possibility of conducting large cocaine transactions to facilitate the Donovans' drug trade in Milwaukee. Following this meeting, the Florida supplier flew to Milwaukee to evaluate Vince Donovan's operation in Milwaukee in order to confirm that it was an appropriate outlet for his cocaine. In Milwaukee, the Donovans explained to the Florida supplier that each had separate cocaine customers, but worked together in other aspects of the cocaine business. Apparently, the Donovans' operation satisfied the Florida supplier; he agreed to provide cocaine to the Donovan team.

In October 1986, Steve Donovan, accompanied by his girlfriend Wanda Young, flew to Florida and obtained one kilogram of cocaine from the Florida supplier. The two travelled to Florida again in December 1986 and January 1987, each time returning with a kilogram of cocaine provided by the Florida supplier. Vince Donovan was present for the January transaction, and phone records demonstrate that he placed several phone calls to Patrick Shea from Florida.

Later in January 1987, when Wanda Young decided she would retire from her drug courier activities because of her pregnant condition, Vince Donovan enlisted Steve Dineen to act as his courier. In January 1987, Vince Donovan took Dineen to Florida to meet the Florida supplier. Over the next several months, Dineen made at least five trips to Florida to obtain cocaine for the Donovan drug ring. For his efforts, Vince Donovan paid Dineen between $1,500 and $2,000 plus expenses.

As a result of his trips to Florida, Dineen was frequently absent from his place of employment. Dineen finally informed his employer, Rick Kizel, of the reason for his absences. Dineen told Kizel that the Donovan brothers and Shea pooled money to purchase cocaine from the Florida supplier and encouraged Kizel to invest with them.

Vince Donovan's drug scheme progressed like a well-oiled machine until it suffered a temporary breakdown: Dineen was arrested in Chicago's Union Station on September 22, 1987 for possession of one and one-half kilograms of cocaine obtained from the Florida supplier. Dineen called Vince Donovan who, together with Dineen's roommate, travelled to Chicago to help Dineen. There, Vince Donovan secured legal counsel for Dineen and provided Dineen $5,000 with which to pay his attorneys. The charges against Dineen were eventually dropped.

After his arrest, Dineen planned two more trips to Florida. In the spring of 1988, Dineen set out for Florida with money contributed by Vince Donovan, Kizel, Shea and others to purchase two kilograms of cocaine from the Florida supplier. Dineen was unable to complete the trip because his car broke down, forcing him to return to Milwaukee. In June 1988, Dineen made his last trip to Florida on behalf of the Donovan drug ring. On that trip, he purchased two kilograms of cocaine from the Florida supplier with money from Vince Donovan.

About December 1987, Kizel decided he wanted to deal cocaine and entered the cocaine race. He began purchasing cocaine from Shea. In February 1988, Kizel and Shea jointly purchased one kilogram of cocaine from Shea's Chicago cocaine source. In March 1988, Vince Donovan put Kizel in contact with his Florida supplier. At that time, Kizel purchased a one-half kilogram of cocaine for himself and another kilogram for Vince Donovan from the Florida supplier. Upon returning to Milwaukee, Kizel could not contact Vince Donovan, and, believing Vince Donovan and Shea to be partners in the cocaine trade, delivered the kilogram of cocaine to Shea. While Vince Donovan chastised Kizel for delivering the cocaine to Shea, he never demanded any payment from Kizel or mentioned Kizel's "mistake" again. Through much of 1988, Kizel obtained cocaine from both Shea and the Florida supplier: approximately fifteen kilograms from Shea and three kilograms from the Florida supplier.

In December 1988, Kizel convened a meeting at Shea's gas station among Shea, Vince Donovan, and himself. The Florida supplier had told Kizel that he could make significant quantities of cocaine available if the Milwaukee group wanted to expand its operation. At that meeting, the three decided that they indeed wanted to take advantage of the Florida supplier's offer. They determined that they would need to rent a storage locker in which to store the cocaine. Shea offered to provide an old automobile to place in the shed so that the cocaine could be stored in its engine block. Kizel rented the storage locker, and Shea provided the car. The storage locker was never used for this purpose because Vince Donovan and Shea informed Kizel that they preferred to purchase the cocaine from Shea's Chicago source because it was less expensive than the cocaine from the Florida supplier.

In February 1989, Kizel obtained ten kilograms from the Florida supplier in three separate transactions. Kizel obtained three of the kilograms for Vince Donovan and provided 12 ounces of cocaine from these transactions to Shea. In March 1989, Vince Donovan travelled to Florida himself to obtain two kilograms from his supplier there. Immediately after obtaining the cocaine, telephone records demonstrate that Vince Donovan called Kizel and Shea from his mobile phone.

In February 1989, Vince Donovan's cocaine ring ran into a snag; local law enforcement officials raided storage facilities rented by Kizel to store cocaine. The authorities found nothing because Kizel had moved his cocaine. This setback did not deter the Donovan team, and Vince Donovan met with the Florida supplier in Chicago in April 1989 to discuss a multiple kilogram deal. The proposed transaction was never consummated; Vince Donovan could not produce the cash necessary to purchase such a large amount of cocaine.

In October 1989, however, Wanda Young began providing the IRS with information regarding the cocaine trafficking of Shea, Steve Donovan, and Vince Donovan. Among other things, Young told authorities that Steve and Vince Donovan obtained much of their cocaine from Shea and that Steve Donovan was selling several ounces of cocaine a week.

From this point, the authorities continued in their efforts to put the Donovan team out of commission. The remainder of the sordid details of the Donovan cocaine ring do not merit recitation. Suffice it to say that the authorities' evidence includes: 1) drug paraphernalia, 2) additional aborted drug buys, 3) threats of harm made by Steve Donovan, Vince Donovan, and Steve Dineen against potential witnesses, and 4) failed "set-ups" of the defendants by the authorities. The investigation finally ended on January 7, 1992 with the six count indictment of the four defendants.

II. Analysis

The defendants, in various combinations, challenge several aspects of their collective trial and individual sentences. We will address and dispose of these arguments in turn.

A. Sufficiency of the Evidence

Dineen, Shea, and Vince Donovan argue that the government's evidence was insufficient to support their conspiracy convictions; they claim that no single conspiracy was proved and that they did not participate in the alleged conspiracy. We must review the evidence in a light most favorable to the government, drawing all reasonable inferences and ascertain whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Boykins, 9 F.3d 1278, 1282 (7th Cir.1993) (quoting United States v. Tanner, 941 F.2d 574, 586 (7th Cir.1991)).

The federal reporters abound with opinions from this and other courts describing drug conspiracies in painstaking detail and evaluating evidence against convicted drug conspirators' sufficiency claims. From those cases, we can glean several principles that properly guide us in consideration of this case. As an initial matter, the government must prove membership in the conspiracy by "substantial evidence." United States v. Goines, 988 F.2d...