U.S. v. Lewis

• Decision Date: 06 April 2011
• Docket Number: 10–1204.,Nos. 09–3954,09–3961,s. 09–3954
• Citation: 641 F.3d 773,85 Fed. R. Evid. Serv. 41
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Scott LEWIS, Vernon Williams, and Lavoyce Billingsley, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

641 F.3d 773

85 Fed. R. Evid. Serv. 41

UNITED STATES of America, Plaintiff–Appellee,

v.Scott LEWIS, Vernon Williams, and Lavoyce Billingsley, Defendants–Appellants.

Nos. 09–3954

09–3961

10–1204.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 2010.Decided April 6, 2011.

Stephen A. Kubiatowski (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee in Docket Nos. 09–3954, 09–3961, and 10–1204.Damon M. Cheronis, Attorney, Timothy J. Fiscella (argued), Attorney, Chicago, IL, for Defendant–Appellant in Docket No. 09–3954.Francis C. Lipuma (argued), Attorney, Law Offices of Francis C. Lipuma, Chicago, IL, for Defendant–Appellant in Docket No. 09–3961.James P. Hanlon, Attorney, Kevin M. Kimmerling (argued), Attorney, Baker & Daniels LLP, Indianapolis, IN, for Defendant–Appellant in Docket No. 10–1204,Lavoyce Billingsley, Pollock, LA, pro se.Before FLAUM and EVANS, Circuit Judges, and McCUSKEY, District Judge.^*EVANS, Circuit Judge.

Scott Lewis, Vernon Williams, and Lavoyce Billingsley were convicted of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846, and carrying and possessing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Billingsley was also convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Lewis and Williams were tried together, while Billingsley was tried separately. All three now appeal claiming that the evidence was insufficient to support their convictions under § 924(c). Lewis and Billingsley also claim insufficient evidence for their § 846 convictions. Lewis and Billingsley further appeal various evidentiary rulings, and Lewis and Williams appeal the imposition of the mandatory consecutive sentence under § 924(c).

In what's fast becoming a rather shopworn scenario in this court, Lewis, Williams, and Billingsley, like a host of (apparently) unrelated defendants before them, were convicted of conspiring to distribute cocaine that didn't exist—cocaine they planned to liberate from a fictional stash house guarded by members of an imaginary Mexican cartel. The sting that ensnared the three defendants here was orchestrated by Bureau of Alcohol, Tobacco and Firearms (“ATF”) Agent David Gomez in his undercover role as “Loquito.” We have seen versions of this sting, which appears a bit tawdry, several times. See United States v. Blitch, 622 F.3d 658, 661 (7th Cir.2010); United States v. Corson, 579 F.3d 804, 806–09 (7th Cir.2009); United States v. Lewis, ¹ 350 Fed.Appx. 74 (7th Cir.2009) (nonprecedential order). We use the word “tawdry” because the tired sting operation seems to be directed at unsophisticated, and perhaps desperate, defendants who easily snap at the bait put out for them by Agent Gomez.

In our case, the sting was originated after Gomez's confidential informant, Rojo, reported information in December, 2006 concerning an individual known as “Silk,” who turned out to be Lewis. Under the direction of the ATF, Rojo placed a recorded call to Lewis to arrange an introductory meeting with Gomez. The following day, Rojo, Gomez, and Lewis met (in a recorded meeting) and Gomez spun Lewis a cover story, namely that he was a disgruntled drug courier working for a Mexican cartel, and that once a month he transports cocaine for the organization. He explained that the day before he is to transport the cocaine, he gets a call telling him to be ready, and the next day he gets a call giving him the location of a secret stash house. He then goes to the guarded stash house, where on any given day he sees between 15 and 20 kilograms of cocaine being prepared. Gomez asked Lewis if he was ready to help knock over the stash house, and Lewis, who unfortunately did not have the benefit of reading our yet-to-be-issued opinions in Corson, Blitch, and Lewis, snapped at the bait. He said he had a crew of three guys ready to go, as well as “some pistols.” Gomez, Rojo, and Lewis arranged to meet with the rest of Lewis' crew the following week.

On December 18, 2006, Gomez, Rojo, Lewis, Williams, and an unknown individual identified only as “B” ² met in a recorded (audio and visual) meeting in Westmont, Illinois. Lewis explained that there was one more member of the crew, but that he couldn't make it to the meeting. Lewis, Williams, and “B” then went on to explain the details of their plan, which was to rush the stash house just as Gomez was leaving, yelling “Freeze, Police!” to surprise the occupants, who they expected to be armed with automatic weapons. They'd then strip the occupants naked, tie them up, steal the drugs and guns, and later sell the drugs. They also discussed various sources for obtaining guns to use in the robbery.

Over the next few weeks, Lewis and “Loquito” a/k/a Gomez participated in multiple recorded phone conversations, during which Lewis reiterated that he and his gang had guns and were ready to go. This culminated in a call on January 3, 2007, from Gomez to Lewis, telling him to have the crew ready to go the next day.

January 4, 2007 was go day. It was also, and interestingly, the day the recordings died. Gomez called Lewis in an unrecorded call and asked that Lewis and his associates meet him in Westmont so they would all be together when the cartel called with the location of the stash house. Lewis replied that the associate who was bringing the guns had been arrested and that he arranged for another person with a gun to fill in.

Lewis, Williams, and Billingsley subsequently met Gomez in the arranged parking lot. Lewis and Williams got out of their car and into Gomez's vehicle, which was outfitted with only one recording unit (although, in keeping with ATF policy, Gomez usually used two devices). Unfortunately, this recording device supposedly malfunctioned, so the meeting in the car was not recorded. However, Gomez testified that he asked Lewis who the third guy (who turned out to be Billingsley) was, and Lewis explained it was his associate with the gun. Lewis then went back to the other car and spoke to Billingsley, who got out of the car, retrieved something from the trunk, tucked it into his waistband, and got into Gomez's car.

Once Billingsley was in his car, Gomez explained that they were going to steal about 20 kilograms of cocaine from a stash house. Billingsley confirmed that Lewis had told him about the plan, and he was ready to go. Gomez asked to see the gun, and Billingsley took it from his waistband and showed it to everyone in the car. Gomez then explained that he was going to take the three of them to the storage facility where they were to leave his share of the cocaine after the robbery (Gomez, according to the plan, was to be tied up as if he were one of the “victims”). Lewis, Williams, and Rojo then rode with Gomez to the storage facility, while Billingsley followed in his car.

At the storage facility, Lewis, Williams, and Billingsley were arrested by waiting law enforcement agents. The arrest was videotaped. The tape shows Billingsley, immediately prior to his arrest, throwing something under his car. Agents later recovered a loaded Smith & Wesson .40 caliber semi-automatic from under Billingsley's car, and two partially full boxes of .40 caliber ammunition from the trunk. Agents also recovered one pair of black leather gloves and a black doo-rag, or head covering, from Lewis, one black doo-rag from Billingsley, and two pairs of plastic surgical gloves and a blue stocking-cap from Williams.

Both Lewis and Billingsley made post-arrest statements after being advised of their rights. Lewis admitted that he believed there would be 15 to 20 kilograms of cocaine in the stash house, that he told Gomez he had arranged at least one gun for the robbery but that he himself did not have a gun, and that he had a pair of black leather gloves he planned to use in the robbery.

At Billingsley's trial, ATF Special Agent Christopher Bayless testified that, in his post-arrest statement, Billingsley admitted that two days prior to the robbery he had met with Lewis, who told him about the planned drug robbery. Billingsley stated that Lewis wanted him to act as the driver for the robbery, and that Lewis thought they'd get 15 kilograms of cocaine. Billingsley also said he later met with Lewis and a man he knew only as “V” (presumably Vernon Williams) and showed them both a gun.

Prior to trial, Lewis, Williams, and Billingsley all stipulated that 20 kilograms of cocaine is a distribution amount, not an amount for personal use. Billingsley also stipulated that some time prior to January 4, 2007, he had been convicted of a felony.

At trial, Lewis claimed entrapment. He claimed he started using cocaine because Rojo hooked him on it. He also said he eventually ran up a $1000 drug debt with Rojo. He testified that Rojo made comments which he took as a threat to himself or his family regarding payment of this debt, and it was only after this threat that he gave in to Rojo's repeated requests that he meet Gomez and participate in the robbery of a cartel stash house. Lewis also acknowledged on cross-examination that in the video-recorded meetings with Rojo and Gomez, he did not appear to fear for his safety, he never attempted to call law enforcement authorities, and he never tried to move away. He said he was unable to borrow $1000 from any friend or relative and agreed to rob the stash house to satisfy this $1000 debt.

To rebut Lewis' entrapment defense, the government was allowed to introduce evidence of two prior convictions during its case-in-chief, specifically a 1995 conviction for possession of a firearm by a felon, and a 2000 conviction for theft (pled down from residential burglary). However, the district judge declined to allow in Lewis' 1991 conviction for commercial burglary, stating that it was too far removed in time and type to show a pattern of significant criminal conduct.

Prior to...