U.S. v. Longstreet

• Decision Date: 08 June 2009
• Docket Number: Nos. 07-1657, 07-2685, 07-3083.,s. 07-1657, 07-2685, 07-3083.
• Citation: U.S. v. Longstreet, 567 F.3d 911 (7th Cir. 2009)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray LONGSTREET, Michael Ervin, and Anselmo Zepeda, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

567 F.3d 911

UNITED STATES of America, Plaintiff-Appellee, v. Ray LONGSTREET, Michael Ervin, and Anselmo Zepeda, Defendants-Appellants.

Nos. 07-1657, 07-2685, 07-3083.

United States Court of Appeals, Seventh Circuit.

Argued November 3, 2008.

Decided June 8, 2009.

Megan Cunniff Church (submitted), Office of U.S. Atty., Chicago, IL, for Plaintiff-Appellee.

Daniel McCammon Cordis (submitted), Foley & Lardner, LLP, Chicago, IL, Thomas L. Shriner, Jr., Foley & Lardner, Milwaukee, WI, for Defendant-Appellant, Ray Longstreet.

Johanna M. Christiansen, Office of the Federal Public Defender, Jonathan E. Hawley, Chief Asst. Federal Public Defender, Office of the Federal Public Defender, Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant, Michael Ervin.

Robert A. Handelsman (submitted), Chicago, IL, for Defendant-Appellant, Anselmo Zepeda.

Before KANNE, EVANS, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Ray Longstreet, Michael Ervin, and Anselmo Zepeda were among twenty-nine defendants charged with a variety of federal offenses arising from their participation in a large drug operation on the west side of Chicago. The defendants ranged from suppliers to gang leaders to low-level, street-corner drug dealers. All twenty-nine defendants were indicted for, inter alia, a conspiracy to possess and distribute controlled substances. Unfortunately, we see many cases involving large drug conspiracies. It is disheartening to know that when the legal system removes one drug conspirator from the street, someone else will quickly fill the void. But as long as the actions occur, we must deal with the actors.

Of the three appellants, only Longstreet—the leader of the west side faction of the Four Corner Hustlers—proceeded to trial, where a jury found him guilty of a number of charges. Ervin and Zepeda both pled guilty. The district court sentenced Longstreet, Ervin, and Zepeda to 456, 300, and 210 months in prison, respectively. On appeal, Longstreet challenges his conviction, and all three defendants present issues regarding their sentences.

I. BACKGROUND

This case involves a widespread drug operation on Chicago's troubled west side, and the twenty-nine co-defendants included individuals involved in all aspects of the business. The primary player for purposes of this appeal is Ray Longstreet, who was the alleged "chief" of the west side faction of a street gang named the Four Corner Hustlers. Longstreet oversaw a drug network that trafficked in heroin, cocaine, crack, and marijuana. Longstreet's activities included coordinating the purchase, mixture, and packaging of substances containing heroin and crack; directing drug sales by lower-level gang members; collecting "street rent" from dealers in exchange for permission to sell drugs in his territory; and controlling the types of drugs available and the street corners on which the dealers sold them.

Michael Ervin was a mid-level gang operative who allegedly served as Longstreet's "enforcer" and also sold heroin on Longstreet's behalf. Unlike the other two appellants, Anselmo Zepeda was involved on the conspiracy's supply side; he allegedly fronted other dealers large quantities of drugs to be repackaged and resold on the streets. The remaining details reflect an all-too-common illegal drug operation, and we see no need to describe them further except as they relate to the analysis below.

In 2004, the Chicago Police Department and the Drug Enforcement Agency began investigating drug trafficking in the area controlled by the Four Corner Hustlers. The investigation included live and video surveillance of Longstreet and his co-conspirators, undercover purchases at one of Longstreet's corners, and court-authorized wiretaps relating to three telephone numbers. In total, law enforcement recorded between 3,000 and 5,000 calls on one telephone belonging to Longstreet and two telephones belonging to Anthony Sutton, a crack cocaine dealer who operated in Longstreet's territory. Many of the calls revealed the mechanics of a modern-day drug business. At Longstreet's trial, the government played over one hundred of these calls, many of which involved Longstreet and nearly all of which related to drug activity.

On September 14, 2005, a grand jury returned a sixty-seven-count indictment, Count One of which charged twenty-nine individuals with a single conspiracy to possess with intent to distribute, and to distribute, controlled substances in violation of 21 U.S.C. § 846. The controlled substances included mixtures and substances containing cocaine, heroin, marijuana, and cocaine base in the form of crack. The three appellants were also charged with a number of other offenses related to their participation in the drug operation.

Longstreet proceeded to trial, and the government, in addition to introducing the recorded telephone conversations, called law enforcement officers and four cooperating witnesses, each of whom testified about his or her interactions with Longstreet. The key government witness was Anthony Sutton, who testified extensively about Longstreet's various roles in the local drug business, as well as Sutton's own role as a drug dealer. After a week-long trial, the jury convicted Longstreet for his participation in the conspiracy and several related offenses. On March 19, 2007, the district court sentenced Longstreet to 456 months in federal prison on the conspiracy charge.¹

Ervin and Zepeda each pled guilty to the conspiracy charge and two related offenses. On May 23, 2007, the district court sentenced Ervin to 300 months in prison. On August 9, the district court sentenced Zepeda to 210 months in prison.

II. ANALYSIS

We consolidated the defendants' cases for appeal. Each co-defendant raises separate issues, and we address each of them in turn. We first consider Longstreet's challenges to both his conviction and his sentence. We next address the sole issue that Ervin presents, which Longstreet raises as well: whether a limited remand is appropriate for the district court to consider the disparity created by the Sentencing Guidelines' crack/powder cocaine ratio. Last, we address Zepeda's challenges to his sentence.

A. Longstreet's Challenges to His Conviction and Sentence

Longstreet challenges both his conviction and his sentence, and he raises four issues: (1) whether the government produced sufficient evidence to prove that he was part of the charged conspiracy; (2) whether the district court properly instructed the jury regarding multiple conspiracies; (3) whether the district court properly precluded him from calling Andre Kincaid to testify about drug purchases from a co-conspirator; and (4) whether the court properly sentenced him to 456 months in prison.

1. Fatal Variance/Sufficiency of the Evidence

Longstreet first claims that there was a prejudicial variance between the conspiracy charged and the evidence produced at trial. According to him, the proof demonstrated, at best, a number of smaller conspiracies, rather than one unified conspiracy including him and Anthony Sutton. Although Longstreet makes a belated effort to separate himself from the activities of other co-conspirators, particularly Sutton, we find his argument unavailing.

A variance arises when the facts proved at trial differ from those alleged in the indictment. United States v. Griffin, 493 F.3d 856, 862 (7th Cir.2007). In a conspiracy case, we treat a defendant's variance claim as a challenge to the sufficiency of the evidence supporting the jury's finding that the defendant was a member of the charged conspiracy. Id. To succeed, Longstreet must establish that (1) the evidence at trial was insufficient to support the jury's finding that he belonged to a single conspiracy, and (2) he was prejudiced by the variance. United States v. Jones, 275 F.3d 648, 651 (7th Cir.2001). We view the evidence in the light most favorable to the government and will overturn a conviction only if the record contains no evidence from which a reasonable juror could have found the defendant guilty. United States v. Rollins, 544 F.3d 820, 835 (7th Cir.2008). The defendant's "heavy" burden when challenging a conviction for insufficiency of the evidence is "nearly insurmountable." United States v. Moses, 513 F.3d 727, 733 (7th Cir.2008) (quotations omitted); see also United States v. Melendez, 401 F.3d 851, 854 (7th Cir.2005) ("Sufficiency of the evidence challenges rarely succeed because we owe great deference to the jury's verdict.")

Therefore, we must determine whether the record contains sufficient evidence for a reasonable juror to have found Longstreet guilty of the conspiracy in Count One of the indictment. A conspiracy exists when two or more people agree to commit an unlawful act, and the defendant knowingly and intentionally joins that agreement. Rollins, 544 F.3d at 835. A conspiracy under 21 U.S.C. § 846 requires "`substantial evidence that the defendant knew of the illegal objective of the conspiracy and agreed to participate.'" Id. (quoting United States v. Thornton, 197 F.3d 241, 254 (7th Cir.1999)).

In proving a conspiracy, the government need not establish with whom the defendant conspired; it must simply prove "`that the defendant joined the agreement alleged, not the group.'" Griffin, 493 F.3d at 862 (quoting United States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005)). "So long as the evidence demonstrates that the co-conspirators embraced a common criminal objective, a single conspiracy exists, even if the parties do not know one or another and do not participate in every aspect of the scheme." Jones, 275 F.3d at 652. For a drug conspiracy, "[a]ll that is necessary is `enough circumstantial evidence to support, beyond reasonable doubt, an inference that the defendants agreed among themselves to distribute drugs.'" United States v. Pagan, 196 F.3d 884, 889 (7th Cir.1999) (quoting United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991))....