U.S. v. Jones

• Decision Date: 19 December 1991
• Docket Number: Nos. 90-3498,90-3541 and 90-3602,s. 90-3498
• Citation: 950 F.2d 1309
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William JONES, Jesse Owens, and Leonard Tolliver, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1309

950 F.2d 1309

UNITED STATES of America, Plaintiff-Appellee, v. William JONES, Jesse Owens, and Leonard Tolliver Defendants-Appellants.

Nos. 90-3498, 90-3541 and 90-3602.

United States Court of Appeals Seventh Circuit.

Argued Oct. 15, 1991.

Decided Dec. 19, 1991.

Darilynn J. Knauss, Asst. U.S. Atty., Peoria, Ill., Rodger A. Heaton, Asst. U.S. Atty., argued, Springfield, Ill., for the U.S.

Ronald E. Halliday, argued, Parker & Halliday, Peoria, Ill., for William Jones.

Sharon G. Kramer, argued, Chicago, Ill., Frank Picl, Peoria, Ill., for Jesse Owens.

William R. Kelly, argued, Kelly & Brady, Peoria, Ill., for Leonard Tolliver.

Before CUMMINGS, WOOD, Jr., and EASTERBROOK, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

This case consolidates the appeals of defendants Jesse Owens, Williams Jones and Leonard Tolliver. Owens and Jones were tried together, and the jury convicted both Owens and Jones of conspiring to commit bank robbery in violation of 18 U.S.C.A. § 2113(a), (d) (West 1978 & Supp.1990). The jury additionally convicted Owens of soliciting Tolliver to help commit the robbery in violation of 18 U.S.C.A. § 373 (West Supp.1990). Tolliver did not go to trial. He pleaded guilty to soliciting Jones to help commit bank robbery. The judge sentenced Owens to 200 months in prison, and Tolliver received a 72-month sentence. These three defendants raise various issues on appeal.

Jones argues that there was insufficient evidence for the jury to find him guilty of conspiring to rob a bank. Jones argues further that even if there was sufficient evidence for the jury to convict him, the government did not present sufficient evidence for the jury to reject his entrapment defense. Owens similarly contends that the government did not prove beyond a reasonable doubt that he was not entrapped. And Owens appeals his sentence, arguing that the court erred in allowing a two-point increment for obstruction of justice to be added to his base offense level. Tolliver challenges only his sentence, raising two issues. First, he asserts that the 72-month sentence he received pursuant to the federal sentencing guidelines for soliciting Jones to participate in a bank robbery violates the Eighth Amendment's prohibition against cruel and unusual punishment. Second, Tolliver argues that the court erroneously applied the guidelines in raising his base offense level several points after the court determined that the robbery plan included a weapon and provided for abduction of a person to facilitate the crime.

We affirm both Owens's and Jones's convictions, and we affirm the sentences imposed by the district court.

FACTUAL BACKGROUND

During Owens's and Jones's trial, evidence was presented indicating that in November 1989 Jesse Owens was an inmate at Hill Correctional Center. Gerald Williams was incarcerated there as well. Williams was placed in a cell next to Owens. At trial, Williams testified that Owens told Williams he was planning to rob several small banks in southern Illinois when he was released. Owens was scheduled to be released from prison in September 1990. Williams told Owens that he was taking a chance on these smaller banks because such robberies might evince a "pattern." Williams suggested to Owens that he should rob one bank, American Savings and Loan, in Pekin, Illinois instead of several smaller banks. Williams stated that he knew the manager of American Savings and Loan and that the robbery could produce ten million dollars. Williams and Owens discussed a plan for the robbery daily in Williams's room. According to Williams, they discussed it at least 500 times.

In December 1990, Williams came to believe that the robbery plan he and Owens discussed daily had risen above mere "prison talk," so he called the state police in Springfield on December 18, 1990, and informed them of the plan. Williams then met with the police the next day to discuss details of the proposed robbery. Williams told the officers that Owens was going to locate assistants in Chicago, as well as acquire a van, a car, money, portable phones, or anything else necessary to the operation from a friend in Florida. Williams also said that Owens would arrange for the car and van to be altered so that they would look like Drug Enforcement Administration vehicles to aid in a getaway. On the night of the robbery, Williams was supposed to take his friend, Al Bottin, whom Williams believed to be the manager of American Savings and Loan, out for a few drinks. At a designated hour, Owens and his crew would show up at the lounge. Williams was to bring Bottin out of the lounge so that he and Bottin could be abducted and taken back to the bank. Bottin would then be forced to open the bank; the money would be stolen; and Owens and his crew would leave the scene in the "DEA" vehicles after handcuffing Williams and Bottin inside the bank. Owens was to give Williams his share of the money when everything "cooled down." Williams also told the officers that the robbery plan included using weapons to aid in the getaway.

On January 8, 1990, Williams again met with state officers. At this time he agreed to work with the authorities as a government informant. The officers gave Williams a phone number to give to Owens so that conversations between the two men and other persons involved in the scheme could be recorded after Williams was released from prison. Following the two meetings with the state officers, Williams continued to discuss with Owens plans for robbing the American Savings and Loan until his release. Williams was released in February 1990.

In January 1990, Owens wrote to his friend, Leonard Tolliver, and told him to contact Williams after Williams was released. Williams arranged through Owens for Tolliver to call him on February 13, 1990, at the phone number given to him by the state authorities. On the planned date, a three-way conversation took place between Williams, Tolliver and Owens; the conversation was recorded. There was another recorded conversation between Tolliver and Williams on February 20, 1990, but Owens did not participate. During both conversations, the parties proposed that Tolliver meet Williams in March 1990 in order to have a look at the bank, whose name, as Williams informed Tolliver and Owens, was no longer American Savings and Loan, but Olympic Federal Bank.

Subsequent to the February 1990 phone calls, Williams attempted to contact Tolliver three times in order to set up a meeting date in East Peoria--with no success. Finally, Williams reached Tolliver, and Tolliver arranged to borrow a car and meet Williams at the Holiday Inn in East Peoria, Illinois. Tolliver brought William Jones along to meet Gerald Williams. Williams, Tolliver and Jones met in a hotel room that government agents had reserved. Williams was wearing a body recorder which the FBI placed on him so that conversations between the three men could be recorded. In the hotel room, Tolliver and Jones examined a map of the area around Olympic Federal provided by Williams, and they looked at a picture of the bank that Williams had brought. The three men also discussed the robbery plan. During the conversations, Williams laid out the details of the robbery plan, and the other two men indicated their agreement with that plan. After discussing the plans, Williams suggested that the group take a trip to Pekin, Illinois to look at Olympic Federal. The group had already arranged to go to Hill Correctional in Galesburg to visit Owens after the meeting, but Williams claimed that the bank was on the way to Galesburg, Illinois. In fact, Galesburg is approximately 50 miles northwest of East Peoria, Illinois, while Pekin is about 15 miles southwest of the town. Tolliver and Jones, Chicago natives, did not know that Pekin was not on the way to Hill Correctional, but they agreed to go to Pekin anyway. Williams, Tolliver and Jones drove in Williams's car to Olympic Federal Bank and inspected it.

After looking at the bank, Williams drove to Galesburg where Tolliver and Jones visited Owens in Hill Correctional Center. On the way back to the hotel in East Peoria, Williams, Tolliver and Jones discussed the robbery plans, including such details as destroying the van, cars and clothing used during the robbery by burning them and referring to each other by numbers instead of by name during the commission of the crime. Tolliver and Jones were arrested as soon as they arrived at the Holiday Inn in East Peoria. Jesse Owens was arrested the following day at Hill Correctional Center.

DISCUSSION

Jones contends that there was not sufficient evidence for the jury to conclude beyond a reasonable doubt that he participated in a conspiracy to violate 18 U.S.C.A. § 2113(a), (d) and (e) (West 1978 and Supp.1991), the federal offenses of bank robbery, assault of a person in commission of the crime, and kidnapping to avoid apprehension in commission of crime. Jones maintains that the government did not prove he agreed to commit the robbery or that he participated in some overt act in furtherance of the offense.

In reviewing a challenge of a conviction for insufficiency of the evidence, this court will overturn a jury's verdict only if no rational juror could have found that each element of the offense was established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Ocampo, 890 F.2d 1363, 1370 (7th Cir.1989). In making this determination, the court views all of the evidence in a light most favorable to the government. To prove conspiracy the government must establish that there was agreement between two or more persons to commit an unlawful act, that a defendant was party to the agreement, and that an overt act was committed in furtherance of the agreement by one of the coconspirators. United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir.1989) (citations omitted). Jones argues that the government did not show ...