U.S. v. Fouse

• Decision Date: 24 August 2009
• Docket Number: No. 07-3945.,07-3945.
• Citation: 578 F.3d 643
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin FOUSE III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

578 F.3d 643

UNITED STATES of America, Plaintiff-Appellee, v. Alvin FOUSE III, Defendant-Appellant.

No. 07-3945.

United States Court of Appeals, Seventh Circuit.

Argued November 5, 2008.

Decided August 24, 2009.

Gordon P. Giampietro, Attorney (argued), Michelle L. Jacobs, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Dennis P. Coffey, Attorney (argued), Mawicke & Goisman, S.C., Milwaukee, WI, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Alvin Fouse was convicted after a jury trial of conspiracy to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), and possession of a firearm in furtherance of that conspiracy, 18 U.S.C. § 924(c). He was sentenced to a total of 270 months' imprisonment. On appeal Fouse argues that the evidence underlying his convictions is insufficient, that both the district court's decision to give the jury a "dynamite charge" during its deliberations and the charge itself were in error, and that his prison term for the drug conspiracy is unreasonable. We reject each of these contentions and affirm the judgment.

I.

Fouse was indicted in 2006. In addition to the conspiracy and gun counts, he was also charged with conspiracy to launder money, 18 U.S.C. § 1956(h). Two copleaded guilty to the drug conspiracy, and Fouse went to trial along with his father, who was charged only on the money-laundering count. At trial the government called Rosendo Heredia, Fouse's principal drug accomplice, who testified that beginning in 2002 he delivered a kilogram of cocaine every few days to Fouse's house on 21st Street in Racine, Wisconsin. According to Heredia, Fouse paid cash for the first kilogram of cocaine he purchased but all subsequent deals were on credit. Heredia recounted that, after serving various jail terms in 2004, he again began supplying Fouse with any quantity of cocaine he could obtain. The two of them, Heredia said, then bought and sold drugs together until they were moving three to five kilograms of cocaine per week. Heredia stated that he obtained cocaine from his sources and delivered it to Fouse's 21st Street home, where he and Fouse would then jointly decide what to do with the drugs, whom to sell to, and what price to charge. Five witnesses testified that Heredia and Fouse supplied cocaine to drug dealers in Racine and that Fouse knew buyers were cooking the powder cocaine into crack for resale. Witnesses also testified to seeing kilogram packages of drugs delivered to Fouse's 21st Street house and to seeing exchanges of large amounts of money between Fouse and other drug dealers.

In August 2005 officers from the Racine Police Department executed search warrants at the 21st Street house and an auto-repair garage belonging to Fouse's father. The 21st Street house was Fouse's only residence, which he shared with his wife. In the garage of that house, police officers found a small bag of cocaine and wrappers consistent with those used to package kilograms of cocaine. Inside the house officers discovered an arsenal of weapons, including a rifle, shotguns, handguns, ammunition, a speedloader (used to load ammunition very quickly), a flash suppressor (which preserves a shooter's night vision by reducing a gun's muzzle flash), and a bulletproof vest. Two of the handguns were found in the basement next to a container covered with cocaine residue. At Fouse's father's auto-repair garage, police found a gram scale, a mixer, plastic baggies, a bottle of inositol (a "cutting" agent commonly used to dilute powder cocaine), several boxes of baking soda, a bowl covered with cocaine residue, and eight more guns. Police also retrieved a total of $100,000 in currency during the searches. Heredia testified that, despite the August 2005 searches, he continued to supply Fouse with cocaine through September 2005.

Fouse did not testify or present evidence at trial. During closing argument his lawyer attacked the credibility of the witnesses who identified themselves as Fouse's drug associates. Counsel characterized Heredia as an "admitted liar" and argued that the evidence failed to prove the existence of a drug conspiracy. Counsel noted that the searches of Fouse's home and his father's garage had turned up only 7.3 grams of cocaine, which, counsel insisted, undermined all the testimony about Fouse being involved with large amounts of drugs. With respect to the gun count, counsel argued that no government witness had ever seen Fouse with a gun, though this contention ignored testimony from a police officer who recovered a gun from Fouse during a traffic stop in 2003. According to the defense, the guns found at Fouse's home were for personal protection. Finally, defense counsel also insisted that the government had failed to prove a money-laundering conspiracy because there was no evidence that Fouse made purchases or gave money away in order to hide the proceeds of drug sales.

After a six-day trial the jury deliberated for nearly eleven hours before the foreman sent a note to the judge explaining that the jurors had not been able to reach a verdict on the conspiracy count and had not even considered the other charges. The foreman stated in his note that he was "having trouble keeping tempers from flaring" and "would appreciate [the judge's] thoughts on this matter." As things stood, the foreman added, he did not think the jury would ever be able to agree on a verdict. Fouse asked for a mistrial and objected, as did the government, when the district court instead decided to let the deliberations continue. The court then gave the following supplemental instruction to the jury orally:

There's no doubt that you recognize that the verdict must represent your considered judgment, but it's also important to point out that it is your duty as jurors to consult with one another and to deliberate with a view to reaching a unanimous decision. I emphasize that and also that you must proceed in a fashion with due regard for the views of fellow jurors.

In other words, you've got to decide the case for yourselves but only after an impartial consideration of the evidence with your fellow jurors. So that means you have to really communicate. You have to open your eyes with regard to the evidence and how your other—fellow jurors have evaluated the evidence.

I must also point out, particularly in view of the fact that notes were being taken, that if someone has something in his notes or her notes it doesn't mean that they are in a better position to evaluate the evidence than you as a collective body. Stated differently, no greater weight should be given to the view of a juror with notes than a juror who does not have something in his or her notes.

I must also point out that as you proceed you should do so respectfully. You've mentioned that tempers have flared; and I will tell you, and I mentioned this to counsel, it is not uncommon for tempers to flare during jury deliberations. It's hard work. It's very hard work, but it's necessary work; but as you proceed, do not hesitate to change your opinion if you are convinced your initial impressions and opinions were erroneous.

On the other hand, do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of fellow jurors or, particularly at this stage, for the mere purpose of returning a verdict. I emphasized earlier and will repeat now, you are not partisans. You're not combatives. You're judges of the facts. Your interest—Your sole interest is to determine the truth from the evidence, not from speculation, but from the evidence as you find it collectively in this case.

So with that in mind I ask that you go back to the jury room and put forth additional effort, notwithstanding a note, to reach a unanimous decision in this matter.

Fouse objected after the instruction was read because, he said, its phrasing unduly emphasized that the jurors could change their minds. The government echoed the defense's concern that this instruction would lead the jury to reach a verdict not based on the evidence or law. Less than two hours later, the jury returned with verdicts of guilty as to Fouse on the conspiracy and gun counts and not guilty on the money-laundering charge. The panel also acquitted Fouse's father. On the conspiracy count, the jury specifically found that the crime involved 500 or more grams of powder cocaine and 5 or more grams of crack.

At Fouse's sentencing hearing, two of the trial witnesses maintained that they had told Fouse they needed to buy pure powder that could be turned into crack. The first witness, John Mares, said he bought 1.5 kilograms of cocaine from Fouse over the course of 12 weeks. The second witness, Demetreus Green, estimated that his total purchases from Fouse over two years totaled about 20 kilograms. Based on the testimony of these two witnesses, the district court attributed 1.5 kilograms of crack to Fouse. The court set a base offense level of 36, see U.S.S.G. § 2D1.1(c)(2), and applied no adjustments. That offense level, coupled with Fouse's criminal history category of II, yielded on the conspiracy count a guidelines imprisonment range of 210 to 262 months. The court sentenced Fouse to 210 months for that offense and imposed a consecutive 60-month term for the gun count, for a total of 270 months.

II.

On appeal Fouse begins by challenging the sufficiency of the evidence supporting his conspiracy conviction. He argues that the government's succession of witnesses established only that he bought cocaine from Heredia and sold it to other drug dealers. These were nothing but buyer-seller relationships, Fouse contends, which do not prove the existence of a drug conspiracy. This is a contention we encounter frequently, but one that rarely succeeds because, more often than not, it depends on looking at the evidence from the defendant's perspective and not the jury's. See United...