U.S. v. Durham

• Decision Date: 28 June 2011
• Docket Number: 10–1753.,10–1328,10–1660,Nos. 10–1308,s. 10–1308
• Citation: 645 F.3d 883,85 Fed. R. Evid. Serv. 909
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Hal DURHAM, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

645 F.3d 883

85 Fed. R. Evid. Serv. 909

UNITED STATES of America, Plaintiff–Appellee,

v.Hal DURHAM, et al., Defendants–Appellants.

Nos. 10–1308

10–1328

10–1660

10–1753.

United States Court of Appeals, Seventh Circuit.

Argued May 4, 2011.Decided June 28, 2011.

Scott Vincent Bruner (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Robert T. Ruth, Attorney, Madison, WI, for Defendant–Appellant in No. 10–1308.Carl P. Clavelli (argued), Attorney, Chicago, IL, for Defendant–Appellant in No. 10–1328.Ruben J. Rodrigues (argued), Attorney, Foley & Lardner LLP, Chicago, IL, Thomas L. Shriner, Jr., Attorney, Foley & Lardner LLP, Milwaukee, WI, for Defendant–Appellant in No. 10–1660.Before EASTERBROOK, Chief Judge, and FLAUM and SYKES, Circuit Judges.FLAUM, Circuit Judge.

In July of 2008, defendant-appellants Tony Callion, Hal Durham, Israel Collins, and Sherman Swopes—along with two other individuals—kidnapped Charles Zachary for ransom because he owed Callion drug money. In response to his kidnappers' demands, Zachary said that his girlfriend, Luella Dorenzo, could get the money from the TCF Bank where she worked. Defendants, unaware that Dorenzo had contacted law enforcement, arranged a ransom drop with her. Shortly after obtaining the money, defendants were arrested. They were charged in a three-count indictment with (1) conspiracy to commit attempted bank robbery of a federally-insured bank, in violation of 18 U.S.C. § 371; (2) attempted bank robbery, in violation of 18 U.S.C. § 2113(a); and (3) knowingly using and carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Collins and Swopes pled guilty to Counts Two and Three. Callion and Durham went to trial separately; each was convicted on Counts One and Two, and acquitted on Count Three. All four defendants challenge their sentences, and Callion and Durham challenge their convictions. For the following reasons, we affirm, except as to Swopes's sentence, which appears to have been based in part on a factual misapprehension by the district court. Consequently, we vacate Swopes's sentence and remand the case to the district court for resentencing.

I. Background

Callion first proposed kidnapping Zachary (who is his cousin) to Daniel Gibbs in June of 2008, explaining that Zachary owed him drug money. According to Gibbs, the original plan was to get a $75,000 ransom, half in drugs and half in cash. Callion and Gibbs again discussed the kidnapping at a Fourth of July barbeque at Durham's house. Natalie Hoisington (Gibbs's girlfriend) and Durham (Gibbs's father) also participated in that conversation, during which Callion told Gibbs to buy handcuffs and duct tape.

On the evening of July 9, 2008, Callion called Gibbs and told him that the kidnapping would happen that night. At about 9:30 PM, Gibbs, Hoisington, Callion, and Durham met at Durham's house. Callion, Gibbs, and Hoisington went out to find Zachary at around midnight or 1 AM. Along the way, Callion recruited Collins and Swopes to join them. All five went to Zachary's house to wait for him. When Zachary returned, Swopes and Collins abducted and handcuffed Zachary, and put him in the back of the vehicle. The group then drove back to Durham's house, where they planned to hold Zachary. While the others moved Zachary into the house, Gibbs accidentally discharged a shell from the shotgun into the center console of the vehicle.

Zachary was duct taped to a chair in a room off the kitchen; duct tape was wrapped around his head to cover his eyes. Callion and Durham proceeded to use force to threaten and intimidate their hostage. Durham used an unloaded .22 caliber revolver to play “Russian Roulette” with Zachary, hit Zachary in the side of the head with the revolver, fired a gun loaded with .22 caliber low velocity power load ammunition at Zachary's leg, and briefly brought his pit bull into the room to scare Zachary. Callion pulled up on Zachary's toes with a wrench.

Callion knew that Zachary's girlfriend, Luella Dorenzo, worked at a bank. He had relayed that fact to Gibbs in May 2008, and mentioned it to the other defendants in the early hours of July 10th after they abducted Zachary. However, it was Zachary who, in response to defendants' ransom demands, first told Gibbs that he might be able to get the money from Dorenzo. Gibbs told Callion, Durham, Swopes, and Collins that Zachary said he would call his girlfriend. In response, Callion told Gibbs that Zachary should have Dorenzo get the money out of a safety deposit box. When Gibbs relayed that message, Zachary told him there was no safety deposit box, but that she could “get it from the bank.” Gibbs informed the others of this, and Callion said “ok.”

With Gibbs's help, Zachary made a number of calls to Dorenzo on his cell phone, but she did not pick up. While trying to reach Dorenzo, Zachary suggested two other possible sources of ransom money—a woman named “Nellie” and a man named “Bob.” He placed several calls to each of them early that morning as well. Between 6 and 7 AM, before Zachary first reached Dorenzo, Callion and Durham drove to Nellie's to try and get ransom money from her. They were unsuccessful, but did not return to Durham's house until about 11 AM.

At 7:34 AM Zachary finally reached Dorenzo, who agreed to get the money from the bank. Callion and Durham were not there at that time, but Gibbs and Callion remained in cell phone contact. When Callion learned that Dorenzo had agreed to get the money, he told Gibbs where Dorenzo should drop off the ransom.

At some point that morning, law enforcement arrived at the TCF Bank where Dorenzo worked, and began recording calls between Zachary's cell phone and Dorenzo's cell phone. During one of those calls, Dorenzo explained that it would be difficult for her to get out of the bank with the money, saying, “I mean, this is a bank. It's hard for me to just walk out of here like that without them noticing something.” By the time Callion and Durham returned to the house, Dorenzo still had not gotten the money. Callion instructed Gibbs to tell Dorenzo that they “weren't playing no more,” and that 12:30 PM was their last call. Shortly after that call, Dorenzo left the bank with $40,220 in ransom money provided by TCF Bank in a TCF-labeled bag. A tracker device and four $20 pre-recorded bait bills were also in the bag.

Durham retrieved the money. Back at his house, Durham found the tracking device as he divided up the money. Initially, he threw it in the neighbors' yard, but then instructed Hoisington to go get it and get rid of it. When Hoisington went outside, she was stopped by officers. Realizing that the police were there, Callion, Durham, Gibbs, Swopes, and Collins grabbed the money and tried to hide upstairs. They were arrested shortly thereafter.

The following morning, FBI Agent Christopher Crocker interviewed Callion. At Callion's trial, Crocker testified that Callion admitted to planning the kidnapping for ransom, and admitted believing that Dorenzo had a key to the bank vault. According to Crocker, Callion also said that, at one point, they demanded that Dorenzo take all of the money in the bank vault.

Durham also gave a post-arrest interview, during which he admitted to knowing that Zachary was being held in his house, that ransom calls were being made to Zachary's girlfriend, that Zachary's girlfriend worked at the TCF Bank, and that the ransom amount had reached $40,000. Durham also admitted that he picked up the bank bag containing the money and tried to dispose of the tracking device.

On October 9, 2008, a grand jury returned a three-count indictment against all six participants, charging them with conspiracy to commit attempted bank extortion of a federally-insured bank, in violation of 18 U.S.C. § 371 (Count One); attempted bank extortion, in violation of 18 U.S.C. § 2113(a) (Count Two); and knowingly using and carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Three). Gibbs and Hoisington pled guilty and became cooperating witnesses.

Swopes pled guilty to Counts Two and Three on October 8, 2009. On March 12, 2010, he was sentenced to 170 months' imprisonment on Count Two and 120 months' imprisonment on Count Three, to be served consecutively. Collins also pled guilty to Counts Two and Three. On February 1, 2010, he was sentenced to 151 months' imprisonment on Count Two and 120 months' imprisonment on Count Three, to be served consecutively.

Callion and Durham chose to go to trial. Callion successfully moved to sever his trial from Durham's. On October 28, 2009, a jury convicted Durham on Counts One and Two, and acquitted him on Count Three. Durham was sentenced to concurrent sentences of 60 months' imprisonment on Count One and 188 months' imprisonment on Count Two on February 1, 2010. On November 20, 2009, a jury similarly found Callion guilty on Counts One and Two, and acquitted him on Count Three. On March 5, 2010, Callion was sentenced to concurrent sentences of 60 months' imprisonment on Count One and 240 months' imprisonment on Count Two. All defendants appeal their sentences; Callion and Durham challenge their convictions as well.

II. Discussion

A. Questioning of Agent Crocker

As discussed below, Callion challenges the sufficiency of the evidence supporting his convictions on Counts One and Two. As part of those challenges, Callion contends that the district court erred in allowing the government to elicit a substantial portion of FBI Agent Crocker's testimony on direct examination by asking leading questions. Callion's counsel did not object to the line of questioning at trial, and therefore this Court's review is for plain error. Under plain-error review, a defendant must show that (1) there was error; (2) it was plain; (3) it affected his substantial rights; and (4) the court should exercise its discretion to correct the error...