U.S. v. Jones, 05-1489.

• Decision Date: 18 July 2006
• Docket Number: No. 05-1489.,05-1489.
• Citation: 454 F.3d 642
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy E. JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

454 F.3d 642

UNITED STATES of America, Plaintiff-Appellee, v. Tommy E. JONES, Defendant-Appellant.

No. 05-1489.

United States Court of Appeals, Seventh Circuit.

Argued January 17, 2006.

Decided July 18, 2006.

COPYRIGHT MATERIAL OMITTED

Eric Sussman, Carrie E. Hamilton (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Steven Shobat (argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, ROVNER, and SYKES, Circuit Judges.

BAUER, Circuit Judge.

Tommy E. Jones sold crack cocaine to government agents. He was convicted for this and for the related act of conspiring to distribute cocaine within 1000 feet of a public housing complex under 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Jones raises three issues. First, he claims the district court erred in not dismissing his indictment according to the Interstate Agreement on Detainers Act. Second, he argues that there was reversible error at trial based on evidentiary admissions and the form of the jury instructions. Third, he challenges the propriety of his sentencing hearing and the length of his term, which was set at 300 months. For the following reasons, we affirm.

I. Background

Between February 2000 and January 2001, Tommy E. Jones conspired with others to distribute, and possessed with the intent to distribute, cocaine and cocaine base in the Rockwell Gardens public housing building located at 340 South Western Avenue (the 340 Building) in Chicago, Illinois. During that time, narcotic sales in the 340 Building were controlled by the Gangster Disciples, a street gang to which Jones belonged.

Law enforcement authorities, including agents from the Department of Housing and Urban Development (HUD), conducted an investigatory operation at the Rockwell Gardens public housing complex from March 2000 through January 21, 2001. During this period of time, law enforcement agents surveilled the gang's activities and conducted controlled buys that yielded more than 100 grams of crack cocaine.

In the early afternoon of May 2, 2000, Jones sold crack cocaine to a federal agent in a stairwell of the 340 Building. Special Agent Kenneth Popovits, from HUD, posed as a laborer from Indiana wanting to purchase crack for redistribution. Working with a confidential informant (CI), Agent Popovits entered the 340 Building after informing a gang sentry of their supposed intentions. The gang member directed them to the building lobby, where Popovits and the CI were searched and redirected to a stairwell.

When Agent Popovits and the CI got to the stairwell, they encountered and negotiated with three men. Popovits recognized two of the men: Michael Zolicoffer and the defendant. Zolicoffer he knew from prior transactions, but Jones he recognized from intelligence photos of individuals that frequented the area. Popovits told the men that he and the CI each wanted to buy ten bags of crack cocaine. (Each bag contained one rock of crack and was valued at ten dollars.) The unknown third man provided the first six bags to the CI, but turned to Jones to satisfy the remainder of the request. Jones completed the CI's order and then asked Popovits how much crack he still needed. Popovits told him ten. Jones then handed him ten small black bags of crack from a larger baggy. Popovits paid him $100 for his ten bags and he and the CI then left the 340 Building. The drugs obtained from Jones tested positive for 4.2 grams of cocaine base.

On the afternoon of the purchase, Agent Popovits prepared a report of the transaction. In it, he described Jones as FNU LNU No.17 (First-Name-Unknown Last-Name-Unknown): black male, six feet, one inch tall, weighing 175 lbs. A few days after his report, Popovits identified Jones in his operation's "intelligence file." The file contained photos of Rockwell Gardens' residents that had previously been arrested by the City of Chicago and the Chicago Housing Authority police departments. Popovits then gave Jones's photograph to fellow agent Fount Hankle, who placed it in a spread of four other men. Agent Popovits again picked Jones. He was one-hundred percent certain that Jones was the second man in the stairwell during the May 2 drug purchase. This entire identification process took place outside of the CI's presence.

On September 17, 2002, Jones and several co-defendants were charged in a criminal complaint for conspiracy to distribute heroin, cocaine, and cocaine base in violation of 21 U.S.C. § 846. A grand jury returned an indictment against Jones on January 16, 2003, charging him with one count of conspiracy to distribute crack cocaine within 1000 feet of a public housing complex, 21 U.S.C. § 846, and one count of distribution of crack cocaine within 1000 feet of a public housing complex, 21 U.S.C. § 841(a)(1). A superseding indictment was returned with the same charges on August 21, 2003.

Following the initial indictment, a federal detainer was lodged against Jones on October 29, 2002. The detainer was served at Illinois River Correctional Center in Canton, Illinois, where Jones was serving time for a state conviction. The purpose of the notice was twofold: it advised Jones that he was wanted for trial on the federal charge, and it allowed him to demand a speedy trial. Jones executed the document on November 19, 2002, and delivered it to the warden of his holding institution. He was produced for trial on August 21, 2003.

At trial, the government called four witnesses: Charles Butts, Jerry Harrington, Willie Mobley, and Michael Zolicoffer. All four men testified that Jones was a fellow member of the Gangster Disciples and that he sold crack cocaine on a daily basis at the 340 Building during the spring of 2000. Further, testimony was introduced that he was known to sell crack between late 1999 and mid-year 2000. Harrington, Mobley, and Zolicoffer also stated that all gang members participated in Nation's Work, which involved selling drugs for the collective benefit of the organization. Additionally, Butts, Harrington, and Zolicoffer testified that all gang members, including the defendant, were required to attend gang meetings and work security at the 340 Building. Butts and Zolicoffer attended these meetings with the defendant between 1999 and 2000.

Aside from the drug sales, Jones occupied a position of authority within the Gangster Disciples. Harrington, Mobley, and Zolicoffer testified that Jones was a Regent, explaining that he was responsible for managing security assignments within the gang and leading meetings. Harrington also testified that he sold crack cocaine for Jones in February 2000. During the entire month, Jones supplied Harrington with 36 dime bags of crack per day. (A dime bag cost $10 and contained one rock of crack.) Harrington sold Jones's supply at night and Jones sold during the day. For each set of 36 bags that Harrington sold, he paid $300 back to Jones and kept $60 for himself.

On February 17, 2004, the jury found Jones guilty on both counts charged in the superseding indictment. He then filed post-trial motions challenging the district court's pretrial and trial rulings. Judge Pallmeyer denied both motions. On January 28, 2005, Jones was sentenced to 300 months in custody. He now appeals (1) the timeliness of his trial, (2) Agent Popovits's identification procedure, (3) the district court's jury instructions, and (4) the findings made at his sentencing.

II. Analysis

A. The Interstate Agreement on Detainers Act

Jones first argues that the District Court should have dismissed the charges against him because the government violated the Interstate Agreement on Detainers Act (IAD), 18 U.S.C.App. § 2. Because the IAD is a congressionally sanctioned compact, it is subject to federal construction. See Alabama v. Bozeman, 533 U.S. 146, 149, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001). Whether the District Court erred in denying a motion to dismiss the indictment based on the application of the IAD is a question of law that we review de novo. See United States v. Pardue, 363 F.3d 695, 698 (8th Cir.2004).

The IAD is a multi-state agreement that is meant to "encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." Art. I, 18 U.S.C.App. § 2. A detainer is a notice filed with a prisoner's institution of incarceration alerting both he and the institution that the prisoner is wanted to face criminal charges in another jurisdiction. Practically, the detainer is a request that the prisoner be held for the other jurisdiction's prosecutors or that the holding institution notify the prosecutors of the prisoner's pending release. See United States v. Paredes-Batista, 140 F.3d 367, 372 (2d Cir.1998). When a detainer is so lodged, the defendant "shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of ... his request for a final disposition to be made of the indictment...." IAD, art. III(a), 18 U.S.C.App. § 2 (emphasis added). The executed demand notifies the waiting jurisdiction of the prisoner's intent to exercise his right to a speedy trial. At issue here is whether the demand must actually be delivered to the prosecuting officer and the appropriate court, or if delivery to a supposed agent is sufficient. The trial court found the former. Jones argues for the latter.

The leading Supreme Court case on this matter, Fex v. Michigan, found that the IAD demanded actual delivery. 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993). Appellant Fex demanded a speedy trial pursuant to the instructions set forth on his detainer. He then submitted the request to the warden of his penal institution, who delayed in forwarding the document to the United States Attorney and the appropriate district court. Fex's legal...