U.S. v. Katalinich
| Decision Date | 30 May 1997 |
| Docket Number | No. 96-2072,96-2072 |
| Citation | 113 F.3d 1475 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph A. KATALINICH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Estaban F. Sanchez, argued, Office of the United States Attorney, Springfield, IL, for plaintiff-appellee.
Michael J. Costello, argued, Springfield, IL, defendant-appellant.
Before BAUER, WOOD, Jr. and DIANE P. WOOD, Circuit Judges.
A jury convicted Joseph A. Katalinich of one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. secs. 846 and 841(a)(1). The district court sentenced Katalinich to 132 months' imprisonment on Counts I and II, to be served concurrently. Katalinich was also ordered to forfeit $10,102 in United States currency and his 1972 Oldsmobile Cutlass, pursuant to 21 U.S.C. § 853. On appeal, Katalinich challenges the sufficiency of the evidence, the application of a sentence enhancement, the district court's selection of jury instructions, and the district court's admission and consideration of certain testimony at trial and sentencing.
In August 1994, Katalinich went to Harold Steskal's house in Springfield, Illinois and asked Steskal to purchase a quarter pound of marijuana for him. A few days later, Steskal brought Katalinich the marijuana, for which Katalinich paid $400. Katalinich then requested that Steskal get him some cocaine. About three weeks later, Katalinich called Steskal and asked for more marijuana, and Steskal obliged him. Katalinich made another request for cocaine. Another three weeks passed and in October 1995, Katalinich asked Steskal to get him half an ounce of cocaine. Katalinich asked that he be able to test the quality of the cocaine before he committed to buying larger amounts. Steskal obtained half an ounce of cocaine from his source, Leonard Carmean, and sold the cocaine to Katalinich for $700.
Katalinich's cocaine purchases soon increased in frequency. Steskal bought cocaine for Katalinich on at least four subsequent occasions. Steskal obtained the cocaine from Carmean, and either Carmean or Jamie Schlesinger, who worked for Carmean, delivered it to Steskal. In the fall of 1994, both Schlesinger and Carmean observed that Steskal had begun to purchase one ounce of cocaine at a time instead of his usual half ounce. Katalinich began accompanying Steskal on some of these purchases, during which Steskal introduced Katalinich to Schlesinger and informed Katalinich that Carmean was his cocaine source.
In late January 1995, Katalinich asked Steskal to arrange a four-ounce cocaine purchase from Carmean. Steskal and Katalinich met Carmean and Joshua Cruickshank, another one of Carmean's underlings, in the parking lot of Bootlegger's Tavern in Springfield. After Steskal introduced Katalinich, Carmean instructed Cruickshank and Katalinich to conduct the deal in Carmean's car. Cruickshank entered the car and handed Katalinich four ounces of cocaine. Katalinich examined it and gave Cruickshank $4,400 in cash. Carmean suggested that Cruickshank give Carmean's pager number to Katalinich so that Katalinich could contact Carmean and his subordinates directly and avoid the hassle of having to buy through Steskal.
About a week after the deal at Bootlegger's, Katalinich began contacting Carmean's attendants directly. Specifically, Katalinich paged Schlesinger with the intention of buying half a kilogram of cocaine, stating that "his people" wanted greater quantities. Schlesinger could not fill Katalinich's order because he only had six ounces of cocaine available. Katalinich settled for the six ounces and paid Schlesinger $6,200. It was also about this time that Steskal became a weekly customer of Katalinich. Steskal routinely bought cocaine from Katalinich in one sixteenth-of-an-ounce quantities. In March and April of 1995, Carmean sold Katalinich four ounces and eight ounces of cocaine, respectively.
On May 3, 1995, Carmean began cooperating with law enforcement officials. Carmean called Katalinich several times, and the two discussed past and future drug deals. These recollections were recorded. On June 5, 1995, Carmean called Katalinich asking him if he wanted to buy some cocaine if Carmean managed to get some. Katalinich responded that he would if he was satisfied with its quality. Carmean reminded Katalinich that he had been pleased with a past purchase of powder cocaine. Katalinich recalled that it was not so much that the cocaine was powder but that it was good quality. Carmean stated that he was getting rock cocaine this time around. Katalinich replied that rock cocaine was acceptable because "everyone thinks it's so cool, you know." Katalinich agreed to buy four to eight ounces of any kind of cocaine, depending on its quality.
On June 22, 1995, Carmean called Katalinich and the two agreed to meet the next day. On June 23, 1995, Carmean called Katalinich again and the two arranged to meet later that day. Katalinich asked Carmean how much cocaine he could get, and Carmean responded that he could give Katalinich eight ounces of powder cocaine. Katalinich asked that the cocaine be divided into two separate four-ounce packages. The two agreed to meet in the parking lot of a local Venture store. They also agreed to a price of $1,100 per ounce. In anticipation of the deal, law enforcement officials outfitted Carmean with a wire recorder and installed a video camera in his car.
Katalinich drove to the Venture in his 1972 Oldsmobile Cutlass. When he arrived, he exited his car, entered Carmean's car and told Carmean that he had heard rumors that Carmean was cooperating with law enforcement officials. Katalinich said that he was not concerned about the truth of these rumors so long as his dealings with Carmean continued to entail minimal conversation. Katalinich informed Carmean that Carmean was his only supplier and that Katalinich's only buyers were people he had known for at least ten years. Katalinich agreed to buy eight ounces of good quality cocaine at $1,100 an ounce.
Law enforcement officials immediately swooped in and arrested Katalinich. Task Force Agent Michael Bishop discovered two bundles of currency on the front passenger floor board of Katalinich's car. The money, totaling $10,000, was wrapped in paper towels. At the time of arrest, Katalinich also had $102 cash on his person.
Katalinich was indicted by a federal grand jury in Springfield. Count I charged that, beginning around December 1994 and continuing through at least June 1995, Katalinich and Steskal conspired with each other and others to distribute controlled substances, including cocaine, in violation of 21 U.S.C. secs. 846, 841(a)(1), and 841(b)(1)(A). Count II charged that, on or around June 23, 1995, Katalinich attempted to possess cocaine with intent to distribute in violation of 21 U.S.C. secs. 846, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. In Count III, the Government sought the forfeiture of the $10,102 in United States currency found in Katalinich's car and on his person and the forfeiture of Katalinich's 1972 Oldsmobile Cutlass, pursuant to 21 U.S.C. § 853. The Indictment charged that Katalinich intended to use or used both the cash and the car to facilitate the offense charged in Count II.
Before the jury trial, Katalinich filed a motion to exclude certain statements as hearsay. Katalinich argued that he was not a part of the conspiracy alleged in Count I. The Government countered by proffering evidence that the conspiracy existed and that Katalinich was a member. The district court found, as a preliminary matter, that the conspiracy existed, and it would allow the statements into evidence, subject to objection at trial. At trial, Katalinich renewed his objection. The district court overruled the objection and held that the Government had introduced enough evidence to establish the existence of the conspiracy and Katalinich's membership in it.
At the close of the Government's case, Katalinich moved for a judgment of acquittal on the grounds of insufficiency of the evidence. The district court denied the motion. Katalinich did not put on a defense. During the subsequent jury instruction conference, Katalinich asked the judge to give Defense Instruction No. 5, an instruction for multiple conspiracies. After hearing argument on the issue, the district court rejected Katalinich's proposed instruction, ruling that the evidence pointed to only one conspiracy.
The jury found Katalinich guilty of Counts I and II. The jury also determined that Katalinich should forfeit his interest in his car and the $10,102 cash recovered from the crime scene.
Katalinich was sentenced on April 23, 1996. At sentencing, Katalinich objected to the court's adding three criminal history points because of his earlier conviction for unlawful possession of a controlled substance. Katalinich contended that this conviction should not have been counted as part of his criminal history because the conviction was unconstitutional, as he was not represented by counsel at the time. The district court disagreed; it found that Katalinich was represented by counsel when he pleaded guilty to this earlier offense and that he chose to represent himself at sentencing. The court also rejected Katalinich's argument that his criminal history category significantly overstated the seriousness of his criminal history. The court denied Katalinich's motion for a downward departure.
The district court discounted Katalinich's objections to drug amounts that were attributed to him under relevant conduct. The court reasoned that the evidence at trial corresponded with the drug quantity noted in the Presentence Report and that the testimony of Steskal, Schlesinger, and Carmean was sufficiently reliable.
The district court sentenced Katalinich to 132 months'...
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