U.S. v. Jean
| Decision Date | 21 July 1994 |
| Docket Number | No. 93-1180,93-1180 |
| Citation | 25 F.3d 588 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Samuel JEAN and Joseph Ousley, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Terry M. Kinney, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.
David S. Mejia (argued), Oak Park, IL, for defendant-appellant Joseph Ousley.
Robert B. Breisblatt (argued), Welsh & Katz, Chicago, IL, for defendant-appellant Samuel Jean.
Before GIBSON, * KANNE, and ROVNER, Circuit Judges.
A jury convicted Samuel Jean and Joseph Ousley of attempt and conspiracy to possess cocaine with intent to distribute. The district court sentenced both of them to twenty years imprisonment. On appeal, Jean and Ousley by their respective counsel raise four arguments challenging their convictions and sentences. 1 First, they argue that they were denied their right under the Speedy Trial Act, 18 U.S.C. Sec. 3161(b), to be indicted within thirty days of their arrest. Second, they maintain that the evidence at trial was insufficient to support the jury's verdicts against them on either attempt or conspiracy. Third, Jean and Ousley contend that statements made by the government in closing arguments constituted prosecutorial misconduct, thereby depriving them of a fair trial. Last, the appellants complain that the district court erred when it sentenced them on the basis of six kilograms of cocaine, instead of on the amount they had the money to purchase. We disagree with the appellants on all of these grounds, and affirm Jean's and Ousley's convictions and sentences.
As part of an undercover operation, Drug Enforcement Administration ("DEA") agents posed as the owners of an air transport company, known informally as "White Cloud Airlines." The agents represented themselves as people who owned airplanes and who had the ability to transport cargo (, contraband) from outside the United States into the country undetected. The DEA's undercover operation used two incarcerated men, "California" Joe, a cooperating informant, and George, an unwitting informant, to locate potential drug dealers who would find such an air transport service useful.
Samuel Jean was referred to the DEA's air transport operation by George. On December 4, 1991, Jean telephoned DEA Agent Mann, who was posing as White Cloud's owner, and introduced himself as George's friend. In subsequent conversations, Jean made plans to meet with the agents in order to "transact business." Jean told the agents of his plan to overthrow the Haitian government and install one of his friends as president. Jean offered the agents exclusive rights to use Haiti and nearby islands as a repository for flown shipments of drugs after the takeover. To fund his efforts, Jean told the agents that he would need over $300,000, plus an additional $5,000 for personal obligations. The agents promised to give Jean the money he needed, including the $5,000. The agents represented to Jean that he was to get his money from the agents' sale of cocaine.
On March 1, 1992, Jean called undercover agent Carew and told him that he had found a buyer for six kilograms of cocaine. This conversation was tape recorded by the agents. Jean told Agent Carew that the prospective buyer, Joseph Ousley, would need the cocaine right away and that Ousley had $60,000 in cash on hand to pay for the six kilograms. Jean wanted the agents to bring the cocaine to him in Washington D.C., and he agreed to pay the agents the money from Ousley. Jean expected to be paid $5,000 after the deal was consummated.
On March 2, Jean called Agent Mann to verify that the cocaine was available. This conversation was also recorded. Mann tried to convince Jean to bring Ousley to Chicago with him to meet with the agents. Jean repeatedly assured Agent Mann that Ousley had the money to pay for the six kilograms. Mann then offered to supply Ousley more than six kilograms, but Jean told the agents they should only give Ousley six kilograms the first time. Jean suggested that the agents could supply Ousley with more cocaine after they had gotten to know him better. That same day, Jean and Ousley flew from Washington D.C. to Chicago, where two DEA agents met them and took them to dinner. Jean referred to Ousley as his "friend" and his "partner." Jean discussed his Haiti plans with the agents at dinner.
The next day, the agents met with Jean and Ousley once again, this time over lunch. Again, their conversation was recorded. At this meeting, Ousley agreed to take six kilograms of cocaine for $10,000 each. Agent Mann offered Ousley an additional six kilograms of cocaine on a consignment basis. Ousley replied, "Okay, that can be handled." Agent Carew asked Ousley how long it would take him to sell twelve kilograms. Ousley estimated that it would take thirty days. Ousley told the agents he could buy fifteen or twenty kilograms a month. He assured the agents that he was reliable, and that others had entrusted him with large amounts of money in the past. Ousley stated that he currently had money for "six [kilograms] maybe a couple more."
Ousley and the agents next negotiated arrangements for the delivery of the cocaine. Ousley stated that there was "no way in the world" he would be willing to transport the cocaine from Chicago to Washington D.C. himself, that it was "too big a risk for" him. Instead, Ousley insisted that the agents transport the cocaine to Washington on their own, agreeing only to "take it from there."
The agents then asked Ousley if he had brought the money for the cocaine with him. Ousley ridiculed the agents for their naivete in thinking that he would have brought the money with him to Chicago. Throughout the conversation, Ousley consistently represented that he had enough money for six kilograms at his disposal, that the money was already "wrapped" (meaning, wrapped up and ready to be moved), and that he would pay the agents when the cocaine was delivered either to Jean or to him in Washington.
The agents' recording tape ran out before the lunch meeting was over. Agent Mann testified, however, that shortly after the end of the recording, he, Agent Carew, and Ousley left the restaurant and drove to another location for the purpose of showing Ousley the cocaine. There, they met a third agent, Agent Kripp, who was waiting behind a parked car. Ousley met Kripp, and Kripp handed Ousley the keys to the trunk of the parked car.
Ousley opened the trunk and found an open duffel bag with twelve individually wrapped kilogram packages of cocaine in it. Ousley then leaned into the trunk and counted the kilograms. He removed one kilogram from the bag and cut open the wrapper with a knife one of the agents gave him. Ousley tasted the white powder that spilled from the cut and commented that it was "good stuff."
After sampling the cocaine, Ousley reiterated that he was unwilling to transport the cocaine himself, and the agents agreed to transport it for him. The agents then decided to place Ousley under arrest. Jean, who was still in the restaurant, was also arrested shortly thereafter.
The Speedy Trial Act provides in part that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." 18 U.S.C. Sec. 3161(b). The Act also provides that "certain periods of delay shall be excluded in computing the time within which an ... indictment must be filed." Id. Sec. 3161(h). One of these kinds of excludable delay is "[a]ny period of delay resulting from a continuance granted by a judge ..., if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial," id. Sec. 3161(h)(8)(A), commonly known as an "ends of justice" continuance. However,
[n]o such period of delay resulting from a continuance granted by the court ... shall be excludable under the subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.
Id. The Act sets out "factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A)...." Id. Sec. 3161(h)(8)(B). The factor relevant to us here is "[w]hether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings ... within the time limits established by this section." Id. Sec. 3161(h)(8)(B)(ii).
Jean and Ousley were arrested on March 3, 1992. Thus, unless the court properly granted an exclusion of time from the thirty-day computation, the Act would have required the government to file an indictment by April 2, 1992.
On March 26, 1992, the government filed a motion pursuant to section 3161(h)(8)(A) to exclude sixty days time from the speedy trial period. The government argued in its motion that because the defendants had discussed plans to purchase large amounts of cocaine, "overthrow" the Haitian government, and use Haiti as a base through which to funnel drugs, the nature of the case was so complex that they would need two extra months to investigate and obtain an indictment. At the motion hearing on March 27, defense counsel requested an opportunity to file written...
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