U.S. v. Kozinski
| Citation | 16 F.3d 795 |
| Decision Date | 18 February 1994 |
| Docket Number | 92-2114,Nos. 91-3774,92-1485,91-3812,92-1173,93-2420,92-1571,92-1462,92-1602,91-3851,s. 91-3774 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carol KOZINSKI, Ilmi Fejzoski, James Havelka, Jeanette Martinez, James Brennan, James Abney, Mark Morgan, and Peter Demopoulos, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Joel D. Bertocchi, Steven Shobat, Canella E. Henrichs, Asst. U.S. Attys., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, Rodger A. Heaton, Asst. U.S. Atty., Springfield, IL, Robert Christopher Cook, Office of U.S. Atty., Chicago, IL (argued), for U.S.
Linda Amdur, Chicago, IL (argued), for Carol Havelka and Carol Kozinski.
Robert A. Novelle, Joel A. Whitehouse (argued), Serpico, Novelle & Navigato, Chicago, IL, for Emil Fejzoski.
David C. Thomas, Chicago-Kent College of Law, Chicago, IL (argued), for James Havelka.
James A. Graham, Chicago, IL (argued), for Jeanette Martinez.
Richard M. Beuke, Robert S. Bailey (argued), Chicago, IL, for James Brennan.
Santo J. Volpe, Joel A. Whitehouse (argued), Serpico, Novelle & Navigato, Chicago, IL, for James Abney.
Robert A. Novelle, Joel A. Whitehouse (argued), Serpico, Novelle & Navigato, Chicago, IL, for Emil Fejzoski.
Patrick S. Moore, Chicago, IL (argued), for Mark Morgan.
John E. Horn, Tinley Park, IL (argued), for Peter Demopoulos.
Before BAUER, WOOD, Jr., and ESCHBACH, Circuit Judges.
The appellants in this case were each convicted of one count of conspiracy pursuant to 21 U.S.C. Sec. 846, 1 and various counts of using a communication facility in committing, causing and facilitating the commission of federal drug crimes 2 in violation of 21 U.S.C. Sec. 843. The eight appellants individually filed notices of appeal from their convictions. The appeals were then consolidated for briefing, argument, and decision.
Between 1985 and 1989, David Avery, a resident of Cook County, developed and operated a large network for the sale and distribution of cocaine throughout the metropolitan Chicago area. Avery initially entered into a drug partnership with the now-convicted drug dealer John Cappas. After a falling-out between the two, Avery and Cappas became rival drug dealers. Avery began to develop his own sources of supply and his own customers. Two of Avery's largest suppliers were Michael Pardo and appellant, Ilmi Fejzoski. The other appellants were also all involved in the Avery drug distribution network and dealt directly with Avery. The relevant activities of the various appellants and their roles in the Avery drug conspiracy are discussed below.
James Abney first became one of Avery's customers in late 1987 or early 1988. Avery provided Abney with one-half kilogram of cocaine on a credit basis. Abney agreed to resell the cocaine. Avery also provided Abney with a code to use when calling Avery's pager. When Abney had successfully resold the cocaine, he returned to Avery, paid him the money due for the cocaine, and obtained another quantity of cocaine to resell. The quantities Abney purchased were normally one-half kilograms. The pattern was always the same. Abney would page Avery and tell him he needed cocaine. Avery would front Abney the cocaine, then Abney would pay Avery when he was finished reselling it. Avery testified that Abney purchased cocaine from him in this fashion roughly twenty-four times. At trial the government presented five taped telephone conversations related to transactions in which Abney purchased one-half kilogram quantities of cocaine from Avery.
Avery began selling cocaine to James Brennan in 1986. Initially Brennan purchased quantities as small as one-eighth of an ounce. The amounts increased, however, to the point where Brennan would purchase kilograms from Avery every two or three weeks. Furthermore, Avery was personally present on numerous occasions when Brennan resold the Avery cocaine.
Brennan's role was not limited to purchaser/distributor. He also helped Avery package cocaine for resale. Beginning in 1988, he helped Avery rerock cocaine as well. Brennan maintained the subscription for Avery's portable telephone. Avery reimbursed Brennan for paying the telephone bills. Brennan also stored Avery's cocaine while the police searched Avery's home. Finally, Brennan accompanied Avery on an ill-fated attempt to purchase ten kilograms of cocaine from another supplier, James Kolalis. The government introduced nine taped telephone conversations between Avery and Brennan. These conversations related to cocaine transactions.
Avery and Demopoulos met through a mutual friend in 1986; Avery sold Demopoulos one-eighth of an ounce of cocaine. Later Demopoulos began dealing directly with Avery. Avery often sold him amounts of cocaine ranging from one-eighth of an ounce to eight ounces. These transactions occurred roughly 100 times. Avery testified that he had at times fronted cocaine to Demopoulos. After Demopoulos became delinquent on his account, however, Avery insisted that all transactions be on a cash basis. Sometimes these cocaine transactions involved other people that Demopoulos knew. On at least two occasions when Avery sold cocaine to Demopoulos, a woman by the name of Cheryl Evans was present. Evans was an acquaintance of Demopoulos. During these transactions, Avery delivered cocaine to Demopoulos and Evans gave Avery a check for the purchase price of the cocaine.
The government introduced seven taped telephone conversations between Avery and Demopoulos. The conversations related to Avery selling cocaine to Demopoulos. As evidence that Demopoulos was not only a purchaser of cocaine but also involved in the resale, Avery testified that in two of these conversations he understood Demopoulos to be referring to his own customers.
One of Avery's drug customers introduced him to Havelka and Kozinski in 1986. They began buying cocaine from him then and continued through 1989. Sometimes only one person, Havelka or Kozinski, was present at the sale. Between the two, they purchased cocaine from Avery approximately 100 times. Kozinski purchased amounts ranging from one-eighth to three ounces. Havelka generally purchased one or two ounces per transaction. Much like with Demopoulos, Avery fronted cocaine to Havelka and Kozinski, but began demanding cash when their accounts became overdue.
Another witness at trial, William Littlejohn, testified about drug transactions between Avery, Havelka, and Kozinski. He accompanied Avery during the sale of one ounce to Havelka. Avery asked Havelka for the money for the cocaine. Havelka stated that he could not provide it yet because "the guy wasn't there yet with the money." Littlejohn was also present on one occasion when Kozinski met Avery to purchase cocaine; Kozinski was not alone but accompanied by another woman.
On March 16, 1990, DEA agents arrested Havelka, pursuant to a warrant, in his home, which he shared with Kozinski. Havelka consented to a search of the house. During the search the agents found: drug paraphernalia; a triple-beam scale; and a mixture of inositol powder (used to dilute cocaine for resale).
During the trial, the government introduced three taped telephone conversations between Havelka and Avery, four conversations between Avery and Kozinski, and three conversations involving all three people. The conversations again related to cocaine transactions. Avery testified that during one of these conversations he understood Kozinski to be discussing one of her customers who was bothering her to get cocaine. The tapes reflected at least three one-half ounce sales to Kozinski at a time when she was pregnant.
Avery sold cocaine to Morgan on at least five occasions. The amounts he sold ranged from one to three ounces. One of the witnesses at trial testified he was with Avery during two deliveries of cocaine to Morgan in June or July of 1989; both deliveries were of two to three ounces. The government presented taped telephone conversations at trial that indicated Morgan had his own resale customers. In one conversation Morgan made reference to his "guys" and said that they were leaving for San Diego and wanted to "do some biz" and provide "help to our bizness." Morgan further stated that some of the cocaine Avery sold him was "all filler" which bothered his "guy" because he "goes over stuff with a fine tooth comb." Four days later in another telephone conversation, Morgan told Avery that he "got rid of everything" and needed to purchase more cocaine. Avery subsequently delivered two ounces of cocaine to Morgan.
Martinez was the girlfriend of Michael Pardo, a major supplier of cocaine to Avery. At one point Pardo was incapacitated and could not deal directly with Avery. Martinez agreed to help by attempting to purchase and deliver a supply of cocaine. Martinez eventually supplied Avery with one kilogram of cocaine. She also aided Pardo by packaging and delivering small quantities of cocaine.
Avery testified to at least five transactions in which Fejzoski supplied Avery with kilogram quantities of cocaine. During one transaction, Avery's girlfriend, Gina Jensen, was present. Avery paid Fejzoski for three kilograms of cocaine in his apartment and then received the cocaine from Fejzoski's associate who was outside in a truck. On another occasion, Fejzoski attempted unsuccessfully to buy three kilograms of cocaine from Avery in Springfield, Illinois.
Avery was arrested in October of 1989. He agreed to plead guilty and cooperate with authorities. Ultimately the Grand Jury indicted twenty-nine defendants, including the eight appellants in this case. All defendants were separated into four groups for trial. Abney, Brennan, Demopoulos,...
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