U.S. v. Fudge, 01-3540.

• Decision Date: 10 April 2003
• Docket Number: No. 02-2018.,No. 01-3540.,No. 01-3833.,No. 01-3608.,No. 02-2017.,01-3540.,01-3608.,01-3833.,02-2017.,02-2018.
• Citation: 325 F.3d 910
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aja E. FUDGE, Lamont C. Gordon, Edward L. McChristian, and Rodney R. Raines, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

325 F.3d 910

UNITED STATES of America, Plaintiff-Appellee, v. Aja E. FUDGE, Lamont C. Gordon, Edward L. McChristian, and Rodney R. Raines, Defendants-Appellants.

No. 01-3540.

No. 01-3608.

No. 01-3833.

No. 02-2017.

No. 02-2018.

United States Court of Appeals, Seventh Circuit.

Argued January 23, 2003.

Decided April 10, 2003.

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John W. Vaudreuil (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Morris D. Berman (argued), Madison, WI, for Defendant-Appellant, Aja E. Fudge.

Gregory N. Dutch (argued), Montie, Youngerman & Dutch, Madison, WI, for Defendant-Appellant, Lamont C. Gordon.

Kent V. Anderson, Office of the Federal Public Defender, Peoria, IL, Vincent R. Jones (argued), Chicago, IL, for Defendant-Appellant, Edward L. McChristian.

Vincent R. Jones (argued), Chicago, IL, for Defendant-Appellant, Rodney R. Raines.

Before BAUER, CUDAHY, and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

This consolidated appeal stems from a 35-count indictment against eleven individuals. The defendants were involved in a major cocaine ring operating in Madison, Wisconsin. Four of the defendants pleaded guilty and were sentenced to various prison terms. On this appeal, three challenge the district court's decision to deny a downward departure in their sentences. Individually, each appellant raises particular issues concerning their respective convictions and sentences. For the reasons stated herein, we affirm the district court on all aspects.

BACKGROUND

The P-Stone Nation branch involved in this case is a gang located in Madison, Wisconsin. It had a niche in the crack cocaine market and when the federal government became aware of its business it began to investigate. The investigation entailed, among other things, undercover buys of crack cocaine, surveillance, a telephone trap and trace, arrests, and a Title III wiretap on three cellular phones. It was this last method, the Title III wiretap, that has become the source of much consternation in this appeal. How the government obtained the wiretap deserves adequate explanation.

On May 8, 2002, the government filed a sworn application requesting authorization to intercept communications from three telephones. The application asserted:

Pursuant to Section 2516 of Title 18, United States Code, the Attorney General of the United States has specially designated the Assistant Attorney General, any acting Assistant Attorney General, any Deputy Assistant Attorney General, or any acting Deputy Assistant Attorney General of the Criminal Division to exercise the power conferred on the Attorney General by Section 2516 of Title 18, United States Code, to authorize this application. Under the power designated to him by special designation of the Attorney General pursuant to Order Number 95-1950 of February 13, 1995, an appropriate official of the Criminal Division has authorized this application. Attached to this application are copies of the Attorney General's order of special designation and the memorandum of authorization approving this Application.

The application included a May 5, 2000 letter from the Assistant Attorney General, Criminal Division, to the Director of the Office of Enforcement Operations, signed by a Deputy Assistant Attorney General. Also attached to the application was a cover letter to the United States Attorney for the Western District of Wisconsin, signed by Frederick D. Hess, Director of the Office of Enforcement Operations, indicating that "a duly designated official of the Criminal Division has authorized an application to be made to a federal judge of competent jurisdiction for an order under § 2518 of Title 18...." The application also contained a copy of order number 1950-95, signed by then Attorney General Janet Reno. In addition, the affidavit of Shawn B. Johnson, the FBI's lead agent in the P-Stone Nation investigation was filed with the application. The 46-page affidavit detailed the basis for the application and the incriminating evidence the government had obtained.

The court granted the application and issued an order which authorized the interception. The order indicated that the authorization was:

Pursuant to an application authorized by a duly designated official of the Criminal Division, United States Department of Justice, pursuant to the power delegated to that official by special designation of the Attorney General and vested in the Attorney General by sec. 2516 of Title 18, United States Code, to intercept wire communications.

With the wiretap in place, the government proceeded in its investigation and infiltration of the conspiracy. The government learned that Defendant-Appellant Aja Fudge sold crack cocaine to three customers during the conspiracy. She also aided co-defendants Gordon, Winfield, Baker and Daniels in obtaining crack cocaine for resale from co-defendant Rodney Raines. In addition, Fudge assisted Raines in collecting drug profits, procuring rental cars, and answering customer complaints. In all, 40.2 grams were purchased directly from Fudge.

In addition, officials learned that Defendant-Appellant Gordon sold a $20 cocaine rock to an inveterate purchaser on a weekly basis. Evidence adduced from the wiretap revealed Gordon incessantly discussing drug transactions with co-defendants Davis and Baker. After Gordon's arrest on January 22, 2001, he made a full confession about his drug activities. He admitted to having ten regular customers, moonlighting as a backup to the P-Stones when they were out of cocaine or were unavailable. He also acknowledged that his source for cocaine was co-defendant Rodney Raines.

During the course of the investigation, approximately 166 grams of crack cocaine were purchased, seized, or obtained from Defendant-Appellant Edward McChristian. Links between various co-conspirators and McChristian were also established through the wiretap.

Finally, Defendant-Appellant Rodney Raines sold crack cocaine to four customers, and had close relationships with many of the co-defendants. From December 1999 to April 2000, Raines brought four to six ounces of cocaine back to Madison from Chicago on many occasions. Raines also had scales in his apartment and aided Fudge in bagging their cocaine base. From August 2000 to January 2001, Raines went to Chicago and returned with nine ounces of cocaine approximately twice a month.

Based on the damaging information retrieved through the wiretap and evidence obtained from a myriad of additional sources, a federal grand jury returned a 35-count indictment against eleven individuals.¹ The indictment charged each defendant with conspiracy to possess with the intent to distribute and conspiracy to distribute cocaine base from January 1999 to January 2001. The other counts charged various defendants with distributing cocaine base and with possessing cocaine base with intent to distribute.

On June 18, 2001, Aja Fudge pleaded guilty to distributing five grams or more of cocaine base on January 12, 2001. The district court found her relevant conduct exceeded 1.5 kilograms and sentenced her to 151 months in prison.

Lamont Gordon, pursuant to a written plea agreement, pleaded guilty to conspiracy to distribute and conspiracy to possess with intent to distribute 50 grams or more of cocaine base. The district court determined that Gordon had personally distributed over a kilogram of crack cocaine and that he was well aware of the distribution by his fellow co-conspirators. The court sentenced him to 210 months in prison.

McChristian pleaded guilty to conspiracy to distribute and conspiracy to possess with the intent to distribute more than 50 grams of cocaine base. The court sentenced McChristian to 184 months in prison.

The final appellant, Rodney Raines, was not as cooperative as his partners. A warrant was issued following Raines' indictment on February 1, 2001. He was arrested and eventually arraigned in the Western District of Wisconsin on August 1, 2001. Raines was ordered detained pending trial. On August 10, 2001, Raines escaped from the Dane County Jail. Authorities apprehended him ten days later and subsequently indicted him for his escape. On January 2, 2002, Raines pleaded guilty to conspiracy to distribute and conspiracy to possess with the intent to distribute more than 50 grams of cocaine base and to one count in the escape indictment. On April 11, 2002, the district court sentenced Raines on both the drug charge and the escape charge. The district court found that Raines' conduct involved more than 1.5 kilograms of cocaine base; two levels were added for his possession of a firearm during the course of the offense. The district court declined to grant Raines a reduction for acceptance of responsibility because he obstructed the prosecution of the case. The court sentenced Raines to life in prison on the drug charge and to a five-year concurrent sentence on the escape charge.

ANALYSIS

The first argument we address has been raised by all the appellants except Lamont Gordon. They contend that the district court erred because it declined to grant a downward departure in their sentences based on disparities between sentences imposed in the Western District of Wisconsin and those imposed nationwide. Raines, however, faces a hurdle unique to his case: waiver. Fudge and McChristian requested disparity departures at their respective sentencing hearings. These sentencing hearings occurred before Raines' hearing. At Raines' sentencing hearing, counsel made objections limited to matters in the presentence report, but never sought departure on the basis of sentencing disparities. Waiver occurs when a defendant or his attorney manifests an intention or expressly declines to assert a right. United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001). Waiver extinguishes the error and precludes appellate review. United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). We have...