U.S. v. Johnson, s. 89-1234

• Decision Date: 04 June 1990
• Docket Number: 89-1260 and 89-1274,Nos. 89-1234,s. 89-1234
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor JOHNSON, Michael Joiner, and Melvin Buford, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1084

903 F.2d 1084

UNITED STATES of America, Plaintiff-Appellee, v. Victor JOHNSON, Michael Joiner, and Melvin Buford Defendants-Appellants.

Nos. 89-1234, 89-1260 and 89-1274.

United States Court of Appeals Seventh Circuit.

Argued Nov. 29, 1989.

Decided May 29, 1990.

As Amended June 4, 1990.

Thomas M. Durkin and Caryn Jacobs, Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Lewis Myers, Jr., Childs, Myers & Willis, Thomas J. Piskorski, Seyfarth, Shaw, Fairweather & Geraldson, Marianne Richardson, Stall & Girardi, and Mary Stowell, Leng, Stowell & Friedman, Chicago, Ill., for defendants-appellants.

Before BAUER, Chief Judge, WOOD, Jr., Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

The defendants Victor Johnson, Michael Joiner, and Melvin Buford were charged in an indictment returned on June 16, 1988, with intimidating a witness in violation of 18 U.S.C. Sec. 1512(b) (Count II), retaliating against a witness in violation of 18 U.S.C. Sec. 1513 (Count III), using a firearm in commission of a felony in violation of 18 U.S.C. Sec. 924(c) (Count IV), and conspiring to commit these offenses in violation of 18 U.S.C. Sec. 371 (Count I). After a jury trial the defendants were convicted of all four counts, and each was sentenced to twenty-years imprisonment. ¹

On appeal, the defendants argue (1) that the evidence was insufficient to show that they had the necessary intent to commit the crimes charged; (2) the district court abused its discretion when it relied on improper factors at sentencing and when it imposed excessive sentences; and (3) the district court violated FED.R.CRIM.P. 32(c)(3)(D) in imposing the defendants' sentences. We affirm.

I. FACTUAL BACKGROUND

As Thelma Tetter returned from work to her home in a Chicago public housing project on October 12, 1987, at her usual time, a masked man approached from behind a building and began shooting at her legs. Deliberately keeping his aim low, he fired five shots, hitting her once in the left calf. Screaming, Tetter dropped her Bible and her purse containing over $200. She was not pursued or further attacked as she ran to the next-door home of Loretta DeJean and Nicole Clark, where she called the police. Later that night, Tetter recovered both items from where she had dropped them. No money had been taken from the purse.

DeJean and Clark had seen the defendants outside their building with a gun just before the shooting. Both women knew that the defendants were members of the El Rukns, a highly organized street gang that engaged in criminal activity. Clark also knew the defendants each held the rank of "ambassador" in the organization. ² The housing project where they lived was located in El Rukn territory, and DeJean and Clark had seen the defendants around the neighborhood on other occasions.

It was the prosecution's theory that the shooting occurred because of Tetter's relationship to Anthony Sumner. Tetter is the mother of Sumner, a former El Rukn member. Sumner had been cooperating since May 1985 with enforcement authorities in their investigations of the El Rukn organization. An "officer" in the organization, Sumner was the first of his rank to cooperate, and his cooperation was widely publicized. He pleaded guilty to certain federal crimes and was sentenced in Chicago. Sumner's guilty pleas as well as the sentencing proceedings, where his cooperation with state and federal authorities was related to the court, were matters of public record. In addition, there was media coverage of his sentencing.

Sumner provided information that was used in arrest warrants in Illinois state court and for federal wiretaps in Illinois and Texas. Sumner also testified for the prosecution in Chicago at trials of various El Rukn members. Other El Rukn members were present in the audience at these trials. In addition, information Sumner provided to a federal grand jury in Chicago resulted in an indictment against Jeff Fort, the leader of the El Rukns, and six other high-ranking members of the organization. Between October 1986 and the time of trial, discovery materials, specifically applications for wiretaps of El Rukn members and supporting affidavits, were disclosed to defense lawyers. These materials contained Sumner's name and outlined his role in providing information to federal authorities. The prosecution planned to call Sumner as a witness in the trial of Fort and the other El Rukns.

There was a short period when Sumner resumed contact with the El Rukn organization out of fear for his wife and children. Because he believed that his family was still in danger even when he was not cooperating, he began to cooperate again with federal and state authorities.

When Tetter was shot, Sumner was in protective custody, and Tetter was able to contact him only through a third party. Fort's federal trial had been going on for about six days.

II. ANALYSIS

A. Sufficiency of the Evidence

The defendants contend that the evidence adduced at trial was insufficient to support a conviction on any of the four counts in the indictment. The standard of review used to determine whether a jury verdict is supported by sufficient evidence is clearly established. The reviewing court is to consider all the evidence in the light most favorable to the government and must affirm the defendants' convictions if the court finds that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Troop, 890 F.2d 1393, 1397 (7th Cir.1989) (citations omitted). Recognizing that the defendants bear a heavy burden to overturn their convictions on appeal, we consider their arguments regarding each of the charges in turn.

1. Intimidation of and Retaliation Against a Witness

The defendants challenge the sufficiency of the evidence to support their convictions for witness intimidation in violation of 18 U.S.C. Sec. 1512(b) ³ and retaliation against a witness in violation of 18 U.S.C Sec. 1513(a). ⁴ To prove witness intimidation, the government must show (1) the defendants knowingly used intimidation, physical force, or threats against Tetter (2) with the intent to influence and prevent Sumner from testifying in an official proceeding and to cause Sumner to withhold testimony in an official proceeding. See 18 U.S.C. Sec. 1512(b)(1)-(b)(2)(A). Similarly, to prove that the defendants retaliated against a witness, the government must show that (1) the defendants caused bodily harm to Tetter (2) with the intent to retaliate against Sumner for attending and giving testimony in an official proceeding or for giving information to law enforcement officers relating to the commission of federal offenses. See 18 U.S.C. Sec. 1513(a).

The defendants do not contend that the government failed to show that they used physical force against Tetter, in violation of section 1512(b), or that they caused Tetter to suffer bodily harm, in violation of section 1513(a). Instead, the defendants' challenge focuses on the second or intent element of these crimes. They argue that the evidence adduced at trial was insufficient to prove that they intended to influence or prevent Sumner from testifying against Fort and other El Rukns. The defendants also argue that there was insufficient evidence to show that they intended to retaliate against Sumner for testifying in a grand jury proceeding or for giving information to law enforcement officers. Specifically, the defendants contend the government failed to demonstrate the necessary intent because the government did not show that they knew who Sumner was, that Tetter was Sumner's mother, or that Sumner was an informant for purposes of section 1512(b) or a federal witness for purposes of section 1513(a). We disagree.

Although it is difficult to find direct evidence in the record of the defendants' intent to intimidate and retaliate against Sumner, direct evidence of intent is usually unavailable. See United States v. Moya-Gomez, 860 F.2d 706, 759 (7th Cir.1988). In general, it is necessary to prove intent through circumstantial evidence, id.; United States v. Maggitt, 784 F.2d 590, 593 (5th Cir.1986), and a jury may thus rely on evidence of this nature to find that a defendant had the requisite intent to commit the crime charged. United States v. Guzzino, 810 F.2d 687, 696 (7th Cir.), cert. denied, 481 U.S. 1030, 107 S.Ct. 1957, 95 L.Ed.2d 529 (1987); United States v. Cogwell, 486 F.2d 823, 828 (7th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1975, 40 L.Ed.2d 310 (1974). Circumstantial evidence, moreover, is no less probative than direct evidence. United States v. DeCorte, 851 F.2d 948, 954 (7th Cir.1988); United States v. Marquardt, 786 F.2d 771, 780 (7th Cir.1986).

In reviewing the sufficiency of the evidence in cases where the government's proof has been largely circumstantial, we have said: "[W]hile it is important that we not permit a verdict based solely on the piling of inference upon inference, it is also imperative that we not rend the fabric of evidence and examine each shred in isolation...." Moya-Gomez, 860 F.2d at 759 (quoting United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983) (citations omitted)). Practically speaking, a reviewing court must " 'use its experience with people and events [in determining] that the evidence correctly points to guilt [to guard] against the possibility' " of mistakenly affirming a guilty verdict based only on an " 'innocent or ambiguous inference.' " Guzzino, 810 F.2d at 697 (quoting Redwine, 715 F.2d at 319).

In determining whether the evidence proves guilt beyond a reasonable doubt, juries as well must use experience and may rely on ordinary common sense. Id. at 697. Common sense, while not a substitute for evidence, should be used to evaluate what it is reasonable to infer from circumstantial evidence. Troop, 890 F.2d at 1397; United States v. Grier, 866 F.2d 908, 923 (7th...