U.S. v. Jones, 97-2262
| Decision Date | 07 May 1998 |
| Docket Number | 97-2334,97-2266,No. 97-2262,97-2262 |
| Citation | 142 F.3d 440 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lorenzo JONES, Kelly S. Brannigan, and Wayne A. Brannigan, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Central District of Illinois.
Before POSNER, Chief Judge, and CUDAHY and EASTERBOOK, C.J.
Order
Anthony Jones, Kelly Brannigan, and Wayne Brannigan were convicted of conspiring to distribute cocaine, in violation of 21 U.S.C. § 846. * Jones was sentenced to 292 months' imprisonment, Kelly Branningan to 324 months' imprisonment, and Wayne Brannigan to life imprisonment. The three defendants collectively present 13 arguments, none of which persuades us that the district court committed reversible error. We discuss briefly several of the contentions. Other arguments concern the district judge's exercise of the substantial discretion entailed in trial management--for example, to try the defendants jointly, see Zafiro v. United States, 506 U.S. 534, 541 (1993)--and do not require comment beyond the observation that the discretion was not abused.
1. The initial indictment, on which defendants were arraigned in March 1996, charged a simple conspiracy of short duration. A superseding indictment returned in August placed the beginning of the conspiracy in 1990, greatly expanding its scope and the complexity of the proof. The new charge led the district judge to exclude time from the calculation under the Speedy Trial Act, so that all parties would have adequate time to prepare for trial, which ultimately began in October. The district court allowed extra time under 18 U.S.C. § 3161(h)(8)(A), which permits a court to delay the start of the trial if "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." The judge concluded that the ends of justice would be served by a delay because the alternative was multiple trials--one on a charge of conspiracy in 1995, and another on a charge of conspiracy earlier in the 1990s, which could multiply the punishment as well as the number of trials. The Brannigans do not disagree with this assessment so much as they seem to think that the alternative was for the judge to prevent the grand jury from returning a new indictment with a more comprehensive charge. But a judge has no such power. The grand jury, in conjunction with the executive branch of government, decides which charges to bring. The superseding indictment was filed within the statute of limitations, so the only real issue was whether the defendants would be tried once or twice. The district judge did not err in using § 3161(h)(8)(A) to produce a single trial. See United States v. Wilson, 962 F.2d 621, 623-24 (7th Cir.1992).
2. A second argument, on which Jones takes the lead, is that an "accumulation of trial errors so infected the proceedings that Jones was denied his Sixth Amendment right to a fair and impartial trial". That is a serious charge, but one unsupported by the record, for we do not find an "accumulation of trial errors", let alone errors of this magnitude. Jones believes that the judge should have stopped the prosecutor from showing that many people other than the defendants bought or sold drugs--arguably to, from, or in connection with the other defendants. In one sense all of this evidence was beside the point, for a drug conspiracy is completed by agreement, without need to prove an overt act. United States v. Shabani, 513 U.S. 10 (1994). But it does not follow that the prosecutor is forbidden to show overt acts by the defendants, or others who may have been associated with the conspiracy, in order to lend credence to the claim that an unlawful agreement existed among the defendants. Cf. Old Chief v. United States, 117 S.Ct. 644 (1997). If the evidence was completely unconnected with any of the defendants, then it is difficult to see how it caused prejudice (although it is easy to see how the district judge could become exasperated; the time of busy judges and jurors should not be wasted). Counsel could have made hay by observing to the jury that although the prosecutor may have shown that Ed Perkens, Rick Timmons, Reginald Humes, and the like, are bad actors, the United States did not prove that the defendants conspired. But if, as seems likely, this evidence tended to show that an ongoing criminal organization existed, the prosecutor did not have to establish by the same evidence that any particular defendant was a member. Proof of an organization's existence and membership can be adduced separately--and evidence that Conspirator A committed a particular overt act with Nonconspirator X is neither irrelevant nor prejudicial with respect to Conspirator B, as Jones appears to believe. A conspirator is responsible for the acts of his fellow miscreants. The district judge blocked the use of evidence that he deemed too far afield. Drawing lines in the management of a conspiracy trial is difficult; we do not think that the lines drawn here were reversible error.
3. The case agent sat at the prosecution's table throughout the trial...
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