U.S. v. Jackson, s. 90-1836

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation983 F.2d 757
Docket Number90-1899,Nos. 90-1836,s. 90-1836
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Errol J. JACKSON, Milton L. Freeman, and Frenchie R. Beckum, Defendants-Appellants. & 90-3167.
Decision Date04 January 1993

R. Jeffrey Wagner (argued), Joseph R. Wall, Asst. U.S. Attys., Milwaukee, WI, for U.S.

Michael D. Monico, Barry A. Spevack (argued), Monico, Pavich & Spevack, Chicago, IL, for Errol J. Jackson.

Robert G. LeBell (argued), Styler, Kostich, Lebell & Dobroski, Milwaukee, WI, for Milton L. Freeman.

Richard L. Zaffiro (argued), West Allis, WI, for Frenchie R. Beckum.

Before CUMMINGS, FLAUM, and MANION, Circuit Judges.

MANION, Circuit Judge.

Defendants-appellants and thirteen other people were indicted for conspiracy to possess cocaine with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 846, for their roles in the Cannon cocaine distribution network which operated out of Milwaukee, Wisconsin from 1986 to 1989. Cocaine suppliers Billy Cannon (from whom the ring got its name) and defendant Frenchie Beckum headed the organization. Defendant Milton Freeman bought cocaine from Cannon and Beckum and regularly redistributed approximately one pound of cocaine per week. In addition, defendants Freeman and Errol Jackson were charged with money laundering, 18 U.S.C. § 1956(a)(1)(B), and structuring financial transactions to evade reporting requirements, 31 U.S.C. § 5324(3). Freeman and Jackson used drug money to buy cars and vans. Pursuant to 31 U.S.C. § 5313, financial institutions must report to the government any cash transaction of $10,000 or more. To avoid having their cash transactions reported to the government, Freeman and Jackson would pay for a car through a series of separate cash payments or cashier's checks, each for less than $10,000.

Jackson and Beckum went to trial. A jury acquitted Jackson of conspiracy, but found him guilty of money laundering and the structuring charge. He was sentenced to 20 years for money laundering and a consecutive 5 year term for the structuring offense. Beckum was found guilty of conspiracy and sentenced to 121 months. Jackson and Beckum appeal their respective convictions and sentences. Freeman pleaded guilty to one count of conspiracy and the money laundering count. He was sentenced to two concurrent 15-year sentences. Freeman appeals the district court's denial of his motion to withdraw his guilty plea and his sentence. We affirm the convictions of all defendants and the sentence of Jackson, but we vacate Beckum's and Freeman's sentences and remand for resentencing.

I. Beckum's Appeal, No. 90-3167

Working undercover, Detective Dwayne Bishop of the Dallas, Texas Police Department first identified Beckum as a cocaine supplier in the summer of 1988. An informant, at the direction of Detective Bishop, contacted Beckum's girlfriend and ordered one-half ounce of cocaine. The informant was told that Beckum would be arriving in Texas later that day to sell the cocaine. Shortly thereafter, Beckum arrived from Milwaukee and sold the cocaine to the informant and Detective Bishop for $700. Beckum was immediately arrested; he was carrying three digital pagers.

The testimony at trial described several drug deals involving Beckum. In October 1988 Beckum and another member of the Cannon ring, Terrance Walls, sold two kilograms of cocaine to Eugene Chaney, Jr., another drug trafficker, for $40,000. In November 1988 Beckum sold cocaine to a narcotics trafficker named Rodney Smith. At Beckum's trial, Smith testified that Beckum agreed to sell Smith two kilograms of cocaine for $18,000 per kilogram. Beckum told Smith that "Terrance" would be delivering the cocaine and gave Smith a digital pager number through which Terrance could be contacted. Later, a man named "Terrance" delivered the two kilograms of cocaine, and Smith gave him $36,000. Telephone records introduced at trial corroborated Smith's story; they show him making several telephone calls from a mobile phone to Beckum's residence and Terrance Walls' pager on November 14 and 15, 1988.

On appeal Beckum challenges both his conviction and sentence. First, Beckum argues that he was deprived of his right to effective assistance of counsel. Second, Beckum contends that the district court's bias against his attorney deprived him of a fair trial. Third, he also complains about the government's exclusion of all "young adults" from the jury. Finally, Beckum disputes the district court's factual findings supporting a sentence enhancement for his role in the offense and obstruction of justice.

A. Ineffective Assistance of Counsel

Beckum argues that his trial counsel's performance fell so far below applicable standards that he was effectively denied his Sixth Amendment right to an attorney. 1 When reviewing an ineffective assistance claim, we give substantial deference to the reasonable tactical decisions made by counsel. See United States v. Muehlbauer, 892 F.2d 664, 669 (7th Cir.1990). In order to prevail on an ineffective assistance of counsel claim, the defendant must affirmatively establish: (1) that his attorney's performance was constitutionally deficient; and, (2) that the deficiency prejudiced the outcome of the case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "The defendant must overcome a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, and the failure to establish either one of the two components is fatal to the claim." United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir.1990).

In this case, Beckum identifies nine examples of alleged ineffectiveness from the trial record, which we conclude neither individually nor cumulatively demonstrate a constitutional deprivation of the right to counsel. Beckum first takes issue with his attorney's alleged attempt at trial to show that because a jury in a different case acquitted co-conspirator Errol Jackson of conspiracy on basically the same evidence as would be used against Beckum, that the jury in this case should do the same. Beckum argues that in furtherance of this strategy the trial attorney actually presented to the jury some of the incriminating evidence which applied to both Jackson and Beckum, notably a chart used at the Jackson trial showing Beckum to be a member of the conspiracy with Jackson, and Jackson's address books which listed Beckum's telephone number. According to Beckum's analysis, this strategy failed when the district court predictably refused to allow evidence of Jackson's acquittal. Beckum contends that his attorney should have anticipated this refusal and should not have introduced the prejudicial evidence in furtherance of such a fateful strategy.

After reviewing the record, we are not convinced that the defense attorney introduced the incriminating evidence in furtherance of the failed strategy which Beckum describes. The defense attorney's stated reason for introducing the evidence was to challenge Drug Enforcement Administration Agent Robert Hartman's damaging testimony about telephone and beeper records which indicated Beckum's involvement in the conspiracy. One might reasonably infer that the trial attorney introduced the allegedly prejudicial evidence to show that even though Jackson and Beckum were supposed to have participated in the same conspiracy, there was little or no evidence of telephone contact between them. When thus viewed, the evidence tends to diminish the impact of telephone and beeper records in establishing the existence of a conspiracy. Such a strategy decision seems reasonable under the circumstances, and certainly not so indicative of incompetence as to establish an ineffective assistance of counsel claim.

Beckum's other examples of alleged ineffectiveness similarly lack merit. 2 Although it is true that the defense attorney informed the jury during his opening statement of Beckum's prior conviction, this does not indicate incompetence. This was simply a strategic decision to preempt the prosecutor's inevitable questions to Beckum about his prior conviction when he took the witness stand. Similarly, the defense attorney was not constitutionally deficient in his presentation of the case, because none of the failures to object, ineffectiveness in cross-examination, or failures to present evidence cited by Beckum fall outside of the wide range of reasonable professional assistance.

If this panel were to conclude differently--that Beckum's counsel was deficient for some or even all of the reasons Beckum cites--the alleged errors of the defense counsel could not have caused the type of prejudice necessary to demonstrate an ineffective assistance of counsel claim. 3 The evidence against Beckum was overwhelming. Even when viewed cumulatively, the alleged errors in the defense attorney's performance did not so influence the proceedings to suggest that "but for the counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

B. Denial of Fair Trial

At one point in the trial the district judge, outside the presence of the jury, criticized a question asked by Beckum's trial counsel. Beckum contends that this criticism conclusively demonstrates that he was deprived of a fair trial because the district judge lacked impartiality. We have held that mere friction between the court and counsel does not constitute bias. F.T.C. v. Amy Travel Services, Inc., 875 F.2d 564, 576 n. 13 (7th Cir.1989), cert. denied, 493 U.S. 954, 110 S.Ct. 366, 107 L.Ed.2d 352 (1990). Apparently, Beckum seeks a new standard in this circuit--that any time a district judge criticizes a trial attorney, the judge has demonstrated his bias such that the trial may be challenged as unfair. Such a standard potentially would jeopardize on appeal every trial where...

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