U.S. v. Hicks, 03-1838.

• Citation: 368 F.3d 801
• Decision Date: 21 May 2004
• Docket Number: No. 03-1838.,No. 03-1878.,No. 03-1849.,03-1838.,03-1849.,03-1878.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman HICKS, Radar Tyler, and Driefus Harbin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 801

368 F.3d 801

UNITED STATES of America, Plaintiff-Appellee, v. Herman HICKS, Radar Tyler, and Driefus Harbin, Defendants-Appellants.

No. 03-1838.

No. 03-1849.

No. 03-1878.

United States Court of Appeals, Seventh Circuit.

Argued January 5, 2004.

Decided May 21, 2004.

COPYRIGHT MATERIAL OMITTED

Ruth Hennage (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

P. Jeffrey Schlesinger (argued), Crown Point, IN, Kevin W. Marshall, Smith & Marshall, Hammond, IN, Claudia Traficante, Portage, IN, for Defendant-Appellant.

Before CUDAHY, POSNER, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

A jury convicted Herman Hicks, Radar Tyler, and Driefus Harbin of, among other offenses, conspiring to possess with intent to distribute and conspiring to distribute more than fifty grams of crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). In this consolidated appeal, all three defendants contest the sufficiency of the conspiracy evidence against them and the district court's decision to allow various acts of violence, including murders, into evidence as support for the government's conspiracy theory. Harbin also challenges his sentence, alleging that the district judge erred in refusing to grant him the two-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. We affirm in all respects.

I. History

This is the second time the defendants have been convicted of a drug conspiracy charge. We overturned the first conviction because of the government's mid-trial use of a peremptory challenge with respect to a particular juror. See United States v. Harbin, 250 F.3d 532 (7th Cir.2001). Upon retrial, the government again sought to prove that Hicks, Tyler, and Harbin were part of an informal gang called the "22nd Avenue Boys," named for the street in Gary, Indiana where most of the members lived, gathered, and, unfortunately, distributed crack to the many addicts in Gary's midtown area. The gang considered itself affiliated with an organized street gang called the Vice Lords. Over objection, evidence admitted at trial demonstrated that the 22nd Avenue Boys engaged in violent territorial disputes with other Gary street gangs and sometimes with each other. The obvious inference to be drawn from such activity was that what the 22nd Avenue Boys sought to protect was the right to sell crack in midtown Gary.

The majority of the evidence presented against the defendants during the two-week trial came from co-conspirators — other 22nd Avenue Boys — who agreed to cooperate in exchange for leniency. Included among them was the leader of the conspiracy, Tajuan Allen. Allen and others testified that during the period covered by the indictment, which included the summer of 1995 to July of 1998, Allen ran more than a dozen crack houses in succession and supplied at least some of the crack that was sold out of them. Allen either charged those dealing out of his houses up front for the drugs he supplied or "fronted" the drugs, meaning he provided the crack without payment, expecting to be paid once the crack was sold. If he was short on drugs or if others obtained their own, perhaps at a better price, he let them sell out of his houses anyway, but only with his permission, and, at least in some instances, if the dealers paid him a "consult," or a fee, for access to the house and its stream of customers. On a good day, his house would serve 100 customers or more, bringing in $2000 to $3000. To meet customers' needs, the houses operated twenty-four hours a day, seven days a week, with sometimes between ten to fifteen people dealing out of a house at one time. Generally, not all the dealers would be present around the clock; they would come and go throughout the day and night. The houses were "organized up" so that the dealers took turns serving the customers, ensuring that no one dominated the customer flow.

Allen and others placed the defendants at particular crack houses, although not in every one run by Allen. Numerous witnesses testified that they either purchased crack from the defendants or saw the defendants sell crack at those houses. The defendants were also seen in Allen's "chill house," a house away from 22nd Avenue where Allen cooked crack, stored drugs and weapons, and where he and his dealers could relax and get high without fear of raids by law enforcement.

II. Analysis

A. Sufficiency of the Evidence

The defendants do not deny that they were crack dealers. They do deny that they were engaged in a conspiracy with Allen to distribute crack, arguing that the government demonstrated, at most, a buyer-seller relationship between Allen and the defendants.

The standard of review facing the defendants on their claim that the jury had insufficient evidence to convict is a daunting one. See United States v. Curtis, 324 F.3d 501, 505 (7th Cir.), cert. denied, 540 U.S. 998, 124 S.Ct. 505, 157 L.Ed.2d 401 (2003); United States v. Sanchez, 251 F.3d 598, 601 (7th Cir.2001) (calling a sufficiency of the evidence challenge an "uphill battle"). Considering the great deference owed to the jury's verdict, we will view all the evidence and draw all reasonable inferences in the light most favorable to the prosecution and uphold the verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Gardner, 238 F.3d 878, 879 (7th Cir.2001); see also Sanchez, 251 F.3d at 601.

To prove a conspiracy under 21 U.S.C. § 846, the government had to show that "(1) two or more people agreed to commit an unlawful act and (2) the defendant[s] knowingly and intentionally joined in the agreement." Gardner, 238 F.3d at 879. In the case of a drug distribution conspiracy, the agreement must amount to more than just the sale of the drugs themselves. Curtis, 324 F.3d at 505. Rather, the government needs to demonstrate "an understanding — explicit or implicit — among co-conspirators to work together to commit the offense." Id. If the prosecution succeeds in establishing a conspiratorial agreement under the first element of the offense, it must then show that the defendants knew about the conspiracy and chose to associate with the "criminal scheme." Id.

To distinguish between a buyer-seller relationship and a conspiratorial agreement, we look for evidence of a prolonged and actively pursued course of sales, coupled with the defendants' knowledge of and shared stake in Allen's illegal venture. United States v. Contreras, 249 F.3d 595, 599 (7th Cir.2001). Factors considered in determining whether the association at issue amounts to a conspiracy include whether there was prolonged cooperation between the parties, a level of mutual trust, standardized dealings, sales on credit ("fronting"), and the quantity of drugs involved. Sanchez, 251 F.3d at 602; Contreras, 249 F.3d at 599. "Although none of these factors is dispositive, if enough are present and point to a concrete, interlocking interest beyond individual buy-sell transactions, we will not disturb the factfinder's inference that at some point, the buyer-seller relationship developed into a cooperative venture." Contreras, 249 F.3d at 599.

The defendants' relationship with Allen had ample indicia of a "cooperative venture" to support the jury's verdict. All three defendants had extended relationships with Allen. Both Hicks and Tyler sold crack out of Allen's houses beginning in 1995. Hicks sold on and off at Allen's various houses throughout the duration of the three-year conspiracy. While Tyler's involvement with Allen tapered off toward the end of the conspiracy, ostensibly because of increased law enforcement focus on Allen's enterprise, he continued to sell for brief periods in Allen's houses. He also visited Allen's last crack house the day after Dontrell Hamilton's murder to report that the police were looking for Allen to question him about a homicide. Both Hicks and Tyler were involved in various shoot-outs with rival gangs in an apparent effort to protect the 22nd Avenue territory. Harbin, who had no involvement in the turf warfare, started selling out of Allen's houses the last six months of the conspiracy, but did so consistently up until the day of his arrest during the raid on Allen's final crack house. All three defendants had access at one time or another to the "chill house" stocked with drugs and weapons, demonstrating, along with their long affiliation with Allen, a modicum of trust between them and Allen.

Allen established rules for selling at his houses, standardizing and controlling his relationships with his dealers, including the defendants. If they weren't selling his crack, the dealers had to have his permission to sell at the house and sometimes pay a "consult" fee. The dealers had to take turns selling to the customers who came to the doors and windows of the house so that the profits were evenly distributed among those present. In at least one circumstance, when trouble arose among the dealers because of some missing drugs, Allen was called to settle the argument. He did so by authorizing the death of Dontrell Hamilton, the dealer suspected of stealing. Once, when Tyler decided to sell on the street opposite Allen's crack house, Allen pistol-whipped him for bleeding customers from the house and ordered him back inside.

The evidence showed that Allen supplied all three defendants with drugs. The government also presented testimony that Allen fronted crack to both Tyler and Hicks on occasion. Due to the length of the conspiracy, the number of customers visiting the houses, the amount of money pulled in on a daily basis, and the quantity of drugs purchased by Allen from his suppliers, the jury could reasonably infer that the amount of drugs passing through the conspiracy was considerable.

In sum, a finder of fact could easily conclude that the government proved the first element of the conspiracy offense — that a conspiratorial...