U.S. v. Dortch

• Decision Date: 22 September 1993
• Docket Number: Nos. 92-1418,92-1452 and 92-1453,s. 92-1418
• Citation: 5 F.3d 1056
• Parties: 37 Fed. R. Evid. Serv. 1033 UNITED STATES of America, Plaintiff-Appellee, v. Lester DORTCH, a/k/a "Lightning," Wilhelm Suess, a/k/a "Wild Bill," and Floyd Dortch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1056

5 F.3d 1056

37 Fed. R. Evid. Serv. 1033

UNITED STATES of America, Plaintiff-Appellee, v. Lester DORTCH, a/k/a "Lightning," Wilhelm Suess, a/k/a "Wild

Bill," and Floyd Dortch, Defendants-Appellants.

Nos. 92-1418, 92-1452 and 92-1453.

United States Court of Appeals, Seventh Circuit.

Argued April 5, 1993.

Decided Sept. 22, 1993.

Ralph M. Friederich, Office of the U.S. Atty., Crim. Div., Fairview Heights, IL (argued), for plaintiff-appellee.

Curtis L. Blood, Collinsville, IL (argued), for Lester Dortch.

William E. Taylor (argued), Taylor & Associates, St. Louis, MO, for Wilhelm Suess.

Terence Niehoff, St. Louis, MO (argued), for Floyd Dortch.

Before FLAUM and KANNE, Circuit Judges, and ENGEL, Senior Circuit Judge. ^*

KANNE, Circuit Judge.

In this case, three defendants raise separate challenges to their convictions for drug conspiracy. We find all of the defendants' arguments meritless and affirm each of their convictions.

I. Facts

On June 20, 1991, a federal grand jury sitting in East St. Louis, Illinois, indicted Lester Dortch, Charles "Boyce" Vaughn ("Chuck Vaughn"), Floyd Dortch, Don Davis, Mike Billingsley, Wilhelm Suess, Troy Papproth, David Peters, and Thomas Solomon for conspiring to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) & 846. The following facts were adduced during a lengthy trial, after which the jury returned a verdict against Lester Dortch, Floyd Dortch and Wilhelm Suess.

The Windtramps Motorcycle Club ("Windtramps") was a group of motorcycle enthusiasts who began dealing drugs and weapons. By the late-1980s, the group was dealing cocaine, methamphetamines, marijuana, guns and explosives. The Windtramps' President, Tommie Taylor, and Sergeant-at-Arms, John Davis, initially formed the conspiracy to distribute cocaine among the club's members. Most of the drugs were dealt from a house adjacent to the Windtramps' clubhouse in East St. Louis. At the start, Taylor and John Davis obtained cocaine from many sources. By 1989, the Windtramps' principal supplier was a man named Jesse Armer. However, Armer became deeply indebted to his cocaine source--a man named Lester Dortch. As a result, James Burkett, Armer's neighbor, became the Windtramps' main supplier, using Lester Dortch as his source. From early 1989 to early 1990, Lester supplied Burkett with approximately two to three ounces a week. Burkett sold all his cocaine to the Windtramps and formed a partnership with John Davis and Tommie Taylor ("the Windtramps partnership"), in the fall of 1989, to distribute cocaine to the Windtramps--even though Burkett was not a member of the Windtramps.

Burkett's source, Lester Dortch, had been involved with cocaine distribution prior to his involvement with Armer and Burkett. In January 1988, Lester moved from Chicago to East St. Louis to work for Anthony Davis--a cocaine dealer who had recently expanded his drug operations from Chicago to East St. Louis. Lester worked for Anthony Davis until shortly after he began his dealings with Armer and Burkett. At that point, in April 1989, Lester stopped working for Anthony Davis and became Davis' customer. In October 1989, Lester formed a cocaine distributing partnership with Chuck Vaughn. Lester and Chuck had various sources of cocaine, including Lester's father Floyd Dortch, who lived in Chicago. Lester and Chuck sold most of their cocaine to the Windtramps partnership, which in turn sold it to Windtramps members.

In late 1989 or early 1990, the Windtramps partnership discovered that Floyd Dortch was Lester's cocaine source and began, on occasion, to buy directly from Floyd. On their first trip to Chicago, Burkett and Taylor bought nine ounces of cocaine. Floyd permitted the men to take delivery despite the fact that they were $600 short; the men were to make good on their debt later. Burkett and John Davis purchased fourteen ounces of cocaine from Floyd in early 1990. Soon after, Burkett and Davis returned to Chicago and purchased another four ounces from Floyd.

In late 1988, Wilhelm Suess was a probationary member of the Windtramps who quickly became involved in the club's drug business. Suess bought cocaine from the Windtramps partnership, mixed it with "cutting" compounds and resold it to Windtramps members and others. The Windtramps partnership often "fronted" cocaine to Suess, allowing him to pay for it after he took delivery and presumably with the proceeds from subsequent sales. On at least one occasion, Suess was left in charge of the Windtramps' drug business when Davis, Burkett and Taylor left East St. Louis to procure more cocaine.

On April 19, 1990, as a result of undercover police work, the majority of the Windtramps members were arrested in connection with the drug conspiracy. On April 20, 1990, several key members of the Anthony Davis drug organization were also arrested. At that time, Lester Dortch, Floyd Dortch and Chuck Vaughn were not arrested because the Illinois investigators were unaware of their role in the conspiracy. Subsequently, several members of the Windtramps, including core conspirators John Davis and James Burkett, cooperated with the government, and the information they provided led to the arrest, indictment and conviction of Lester, Floyd and Chuck.

This appeal requires us to examine the convictions of Lester Dortch, Floyd Dortch and Wilhelm Suess. Each defendant raises different issues which we will address individually. Additional facts are supplied as necessary.

II. Lester Dortch: Double Jeopardy

Lester Dortch's sole challenge to his conviction is a double jeopardy claim. Lester argues that his prosecution in this case is barred because he pled guilty to the same offense in September 1991. To understand Lester's claim, the following summary of additional pertinent facts is necessary.

On January 30, 1991, Lester and three other named individuals were indicted by a federal grand jury in the Eastern District of Missouri (the "Missouri case"). The six count indictment alleged, inter alia, that the four men conspired to distribute cocaine from "on or about the 24th day of July, 1990 through the 30th day of July, 1990," in violation of 21 U.S.C. Secs. 841(a)(1) & 846. The remaining counts charged substantive violations of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1). The Missouri indictment specifically charged the following four overt acts: (1) Chuck Vaughn leased Apartment D at 4066 Westminster Place, St. Louis, Missouri; (2) on July 30, 1990, Chuck Vaughn stored approximately two pounds of cocaine in a bedroom closet at 4066 Westminster Place, Apartment D; (3) on July 24, 25, & 26, 1990, Michael Orr and Lester Dortch together distributed cocaine to an individual on the National Food Store parking lot, 4171 Lindell, St. Louis, Missouri; and (4) on July 30, 1990, Charles Ramey exited Apartment D, 4066 Westminster Place in possession of approximately three ounces of cocaine.

On September 13, 1991, Lester pled guilty to the conspiracy count and to one count of distribution; the government dismissed two other distribution counts. In Lester's view, his guilty plea in the Missouri case should have barred his prosecution in this case because the indictments in each charged the same conspiracy to distribute cocaine. This is not the first time Lester has raised this argument.

Prior to trial, Lester moved to dismiss the Illinois indictment, relying on the Double Jeopardy clause of the Constitution. The trial court held a hearing. Lester offered documentary evidence which he believed demonstrated that the Missouri and Illinois conspiracies were really one and the same. In response, the government introduced testimony from two government agents which suggested that two separate conspiracies existed. The district judge agreed with the government's position and denied Lester's motion to dismiss.

Lester filed an interlocutory appeal with this court pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). ¹ However, the district court found Lester's claim frivolous, and we denied Lester's request for a stay pending appeal pursuant to United States v. Cannon, 715 F.2d 1228, 1231 (7th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984). ² Lester renewed his double jeopardy claim before the trial court in two subsequent motions for acquittal, arguing that the government's evidence at trial had proved the Missouri conspiracy to which he had already pled guilty. The district court denied both motions.

Lester's motions for acquittal have preserved the double jeopardy issue for our review. Before we address the merits of Lester's claim, however, we must first define the scope of our inquiry and determine which party bears the burden of proof.

When a defendant files an interlocutory appeal of the trial court's denial of a pre-trial motion to dismiss on double jeopardy grounds, the question presented to us is whether the trial court's decision was erroneous. See United States v. Chiattello, 804 F.2d 415, 417 (7th Cir.1986); United States v. West, 670 F.2d 675, 681 (7th Cir.), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). That is not the same question before us when we are faced with a double jeopardy challenge after a trial has been held. Once there has been a trial, our role is to review "the merits of the double jeopardy claim." Chiattello, 804 F.2d at 417. Moreover, our review of the merits, in light of the trial record and other relevant evidence, is de novo.

According to Lester, the following passage accurately states the burden of proof on this issue:

the defendant bears the burden of making a prima facie showing that the two indictments cover the same offense, and thereafter the burden shifts to the government to demonstrate that it has not twice prosecuted the defendant for the same conspiracy.

United States v. Thornton, 972 F.2d 764, 767 (7th Cir.1992). Lester cites several cases to...