U.S. v. Emerson
| Decision Date | 07 September 2007 |
| Docket Number | No. 05-3303.,No. 05-3336.,05-3303.,05-3336. |
| Citation | 501 F.3d 804 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sherman EMERSON and William E. Ingram, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry D. Glickman (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
Carter C. Law (argued), Schriener Law, Clayton, MO, for Defendant-Appellant Emerson.
James C. McKinley (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant Ingram.
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
Sherman Emerson and William E. Ingram were already known to law enforcement when a confidential informant, Edwin Douglas, contacted Detective Kenneth Martinez of the Indianapolis Police Department in November of 2004 about Ingram's interest in committing "licks" or "drug rips" — robbing drug dealers of their drugs. At that time, Ingram had prior convictions for dealing in a sawed — off shotgun, criminal confinement, receiving stolen property, and intimidation. He and Emerson also had been charged with murder arising from an earlier lick. The Indianapolis Police Department referred the matter to federal authorities, who launched a sting operation that nabbed Ingram and Emerson, as well as four other individuals. Only Ingram and Emerson proceeded to trial, where a jury convicted them of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). The jury also convicted Ingram of carrying a firearm in furtherance of a drug-trafficking crime and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 924(c) and 922(g), respectively. Ingram and Emerson appeal their convictions and sentences. We affirm.
Posing as a dealer for a cocaine trafficker, Special Agent Carlos Canino of the Bureau of Alcohol, Tobacco, Firearms and Explosives met with Ingram at an Indianapolis hotel on November 19, 2004. The meeting was recorded by video and audio. At the meeting, "Carlos" represented to Ingram that he was branching out on his own in the cocaine-trafficking business and that his boss was sending twenty kilograms of cocaine from Miami to Indianapolis a few weeks later. Carlos invited Ingram, Douglas, who had driven Ingram to the hotel, and others to steal the cocaine: Carlos would receive 10 kilos; the other 10 kilos would go to Douglas, Ingram, and their associates.
Ingram is heard on the surveillance tape discussing his interest in committing the robbery. He also described his plan for the robbery. Ingram explained to Carlos that he would put together a crew of six "killers," who would be armed and wearing masks. Ingram further stated that he carried a "9," or 9 mm pistol, and that he kept 17 shots. He considered the robbery of 20 kilos of cocaine a "lifetime opportunity," stating that he had been planning such a robbery for over two years. He even informed Carlos that he had committed a similar robbery a week earlier. Before the meeting ended, Ingram agreed to return to the hotel the following night so that Carlos could meet Ingram's associates and they could continue to plan the lick.
Driven by Douglas, Ingram returned to the hotel the following night. Also present for the meeting were Carlos, defendant Emerson, Deandre Douglas ("D. Douglas"), and Roderick Nelson. Like the meeting the previous night, this meeting was monitored and videotaped. For the benefit of everyone present, Ingram described the plan: there were 20 "birds," or kilos, of cocaine; there "would be six of us going in;" and everyone would be masked and armed. They would put the Mexicans on their backs, tie them up, and take the 20 birds. Each person who participated would receive a "bird." He also said that they knew how to do robberies because they had done them before.
Emerson asked when the lick would occur and whether the warehouse in which the cocaine was being stored would be left open. He also expressed concern that he could not participate in the lick because he did not have a "heater," or gun. When Carlos asked if anyone had any questions, Emerson responded, "I'm used to it, I ain't got no questions." Carlos also asked Ingram if those present constituted the team. Ingram replied that there might be one more and that he had wanted to bring his guys to the meeting so that they could meet him, Carlos.
As the meeting was ending, Carlos informed everyone that he was returning to Miami the next day and that he would be back in Indianapolis two weeks later to await the shipment of cocaine. Carlos and Ingram then made arrangements for Carlos to contact Ingram when he returned to Indianapolis.
Between November 20 and December 4, 2004, Douglas recorded conversations between himself, Ingram, and others, including a conversation that occurred on December 2 between himself, Ingram, and Emerson. During this conversation, Ingram informed Emerson that the other participants in the "Carlos robbery" did not want Emerson involved because of statements purportedly made by Emerson that he wanted to kill the Mexicans who were delivering the cocaine. Emerson also had not yet obtained a gun. Ingram told Emerson that he would not be allowed to participate in the lick itself but that he, Emerson, would nonetheless receive some of the cocaine from the lick.
On December 4, Ingram, Douglas, D. Douglas, Daniel Cannon, and Nelson met Carlos at the same hotel. Again, this meeting was monitored and videotaped. The group plotted their final strategy for the robbery. Carlos informed everyone that his cocaine supplier would contact him the next morning with the location of the delivery. He instructed the group that they would follow him to a storage facility to pick up a vehicle and then follow him to the delivery site. Carlos said that he had rented a hotel room at a Lee's Inn that night and directed everyone to stay there that night or to arrive there by early morning so that they would be ready when he received the call from his supplier. He gave Douglas a key to the hotel room.
The following morning, Carlos met Ingram, Douglas, D. Douglas, Mann, Cannon, and Stephan Coleman at the Lee's Inn. They told Carlos that they were ready for the robbery. Carlos led Ingram and the others to a storage facility, where he separated himself from the others and gave an arrest signal. At the signal, Ingram and the others were arrested. Emerson was arrested at his home later.
A search was conducted of the van that Mann had driven with Cannon and Douglas as passengers. The search uncovered four guns, ski masks, and duct tape. Later, Ingram and Mann had a conversation while they were inside a U.S. Marshal Service transport van. Without their knowledge, the conversation was recorded. During the conversation, Mann asked Ingram how many heaters were in the gym bag. Ingram responded, "1, 2, 3, it should have been 3." Ingram also said that he had thrown away a mask and stocking cap once it was apparent that the police were there. He also spoke of having obtained a gun from "Dre," i.e., Mann.
At trial, the government's evidence consisted primarily of Agent Canino's testimony and videotapes of the meetings at the hotel. Over the defendants' objections, the government also introduced the tape of the December 2 conversation between Douglas, Ingram, and Emerson and the recording from the U.S. Marshal Service transport van. Emerson did not testify or introduce any evidence in his defense. Ingram asserted an entrapment defense, claiming that Douglas had coerced him to participate in the robbery. The jury rejected Ingram's defense, finding Ingram and Emerson guilty on the conspiracy count and Ingram guilty of carrying a firearm in furtherance of a drug-trafficking crime and being a felon in possession of a firearm.
At his sentencing, Emerson objected to an upward adjustment of his offense level for possession of a weapon. He argued further that his offense level required a downward adjustment because his role was minor or minimal. Overruling both objections, the district court sentenced Emerson to 327 months of incarceration. At a separate hearing, the district court sentenced Ingram, who qualified as a career offender, to a total of 660 months of incarceration. Ingram and Emerson filed timely appeals, which we consolidated.
Ingram and Emerson raise a number of challenges to their convictions and sentences. Emerson contends that the district court erred in denying his motion for judgment of acquittal, arguing that the government's evidence was insufficient as a matter of law to support his conviction for conspiracy. Both Ingram and Emerson argue that the district court erred in denying their motion for a mistrial after the government elicited testimony from Detective Martinez about their involvement in the earlier drug lick that resulted in a murder. They argue that such testimony, coupled with the district court's failure to give any curative instruction to the jury, deprived them of their right to a fair trial. Ingram and Emerson also argue that the district court erred in admitting the December 2, 2004 recording of the conversation between Douglas, Ingram, and Emerson and the recording from the U.S. Marshal transport van. Separately, Emerson challenges his sentence on the grounds that it was error for the district court to add a two-point enhancement to his offense level for possession of firearms and to decline to reduce his offense level based on his minor role in the offense. Ingram challenges the reasonableness of his sentence. We address each contention in turn.
Emerson argues that the district court erred in denying his motion for judgment of acquittal because the evidence was insufficient to support his conspiracy conviction. He argues that the evidence instead...
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