U.S. v. Marshall

• Decision Date: 03 February 1993
• Docket Number: Nos. 91-3366,91-3367,s. 91-3366
• Citation: 985 F.2d 901
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome Erick MARSHALL, also known as Eric Marshal, also known as Trevon, also known as Lionel Leonard Benford, also known as Lamar Roosevelt, and Mondo Elliot, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 901

985 F.2d 901

UNITED STATES of America, Plaintiff-Appellee, v. Jerome Erick MARSHALL, also known as Eric Marshal, also

known as Trevon, also known as Lionel Leonard

Benford, also known as Lamar Roosevelt,

and Mondo Elliot, Defendants-Appellants.

Nos. 91-3366, 91-3367.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 2, 1992.

Decided Feb. 3, 1993.

Cale J. Bradford (argued), Office of the U.S. Atty., Indianapolis, IN, for U.S.

Reginald Bishop (argued), Roberts & Bishop, Indianapolis, IN, for Mondo Elliott.

Joseph F. Walsh, Douglas L. Young (argued), Los Angeles, CA, for Jerome E. Marshall.

Before MANION and KANNE, Circuit Judges, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

This case involves a consolidated appeal from a criminal case in which two defendants were convicted of multiple counts of a superseding indictment. For the reasons articulated below, we affirm the rulings of the district court.

I. BACKGROUND

In Los Angeles, California, from late 1989 to 1991, cocaine was distributed to defendant Jerome Erick Marshall on at least 12 to 15 occasions. With the assistance of defendant Mondo Elliot and others, Marshall manufactured part of the cocaine into cocaine base (commonly known as "crack cocaine"). The remaining cocaine was placed in small appliances or baby stroller boxes and was shipped by Marshall, Elliot, and others to Indianapolis, Indiana. The cocaine base was similarly packaged and was shipped elsewhere. As part of his drug business, Marshall directed the activities of certain individuals located in various cities, including Indianapolis; Minneapolis, Minnesota; Washington, D.C.; and Pittsburgh, Pennsylvania. Marshall, Elliot, and others established or attempted to establish contacts in these and other cities by meeting with individuals who possessed knowledge of the local cocaine market in each city.

In 1989, Elliot and at least two others travelled from Los Angeles to Minneapolis, where they sold cocaine, collected money from the sale of cocaine, and routinely wire transferred large amounts of United States In 1991, the defendants were tried before a jury on a five-count Superseding Indictment, which charged Marshall and Elliot with conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I), and conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 371 (Count V). Counts II and IV charged Marshall alone with violations of 18 U.S.C. §§ 922(g)(1) and 924(e), and 18 U.S.C. §§ 922(a)(6) and 371 respectively. Marshall was acquitted of Count III. On July 19, 1991, Marshall was found guilty as charged in Counts I, II, IV, and V. On the same date, Elliot was found guilty as charged in Counts I and V. On September 30, 1991, Marshall was sentenced to life in prison and Elliot was sentenced to 327 months in prison.

                currency to California.   Marshall visited Elliot and the others while they resided in Minneapolis.   In 1990, Marshall directed several of his contacts to Indianapolis for the purpose of receiving and distributing cocaine.   Between September 1989 and April 1990, Marshall directed the shipment of at least 15 kilograms of cocaine to contacts in Indianapolis.   At the direction of Marshall and Elliot, United States currency derived from the sale of such cocaine was shipped inside small appliance boxes and wire transferred via Western Union to Marshall and Elliot (and their designates) in California.   Marshall directed the individuals that he sent to Indianapolis to acquire handguns for him.   Under Marshall's direction, a local contact in Indianapolis also purchased numerous handguns in her own name and sent most of them to Marshall in California.   In April 1990, Marshall attempted to purchase in person a number of handguns from an Indianapolis gun dealer.   At his request, the transactions were to be conducted through one of his local Indianapolis contacts.   On April 24, 1990, Marshall's local contacts sold three ounces of cocaine in Room 722 at the Residence Inn in Indianapolis.   During a search of the room on the following day, three handguns and a quantity of suspected cocaine were seized
                

Both defendants now appeal from their respective convictions. In his brief, defendant Marshall presents 18 questions for appellate review. In his brief, defendant Elliot raises six issues for our review. Because many of the issues raised by the defendants in their briefs are sufficiently meritless to command summary affirmation, we will limit our discussion to the following six issues on which defendants' counsel focused during oral argument.

II. ANALYSIS

A. Insufficiency of the Evidence

Both defendants have challenged the sufficiency of the evidence on which they were convicted. The issue of sufficiency of the evidence is reviewed in a light most favorable to the government to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Tanner, 941 F.2d 574, 586 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 432 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis in original). Since a jury verdict must be sustained if there is substantial evidence supporting it, a defendant challenging the sufficiency of the evidence faces a heavy burden. Id.

Viewing the evidence in the light most favorable to the government and drawing all reasonable inferences from the evidence presented, we must conclude that a reasonable jury could find both Marshall and Elliot guilty as charged in Counts I and V, and Marshall guilty as charged in Counts II and IV. From the verdict, it appears that the jury simply did not believe the testimony of witness Vernon Woods when he testified that he had not been involved in a conspiracy to distribute cocaine with Marshall and Elliot.

The evidence against Marshall is abundant. It establishes that Marshall purchased large quantities of cocaine in Los Angeles, packaged and shipped the cocaine to Minneapolis and Indianapolis, established Both defendants contend that the evidence presented failed to establish that the substance about which several witnesses testified was actually cocaine. The defendants argue that where there is no actual seizure of the controlled substance, the government has the burden of establishing that the person testifying has had experience with the controlled substance, has actually used the controlled substance in question, and believed it to be a particular controlled substance. United States v. Walters, 904 F.2d 765, 770 (1st Cir.1990); United States v. Roman, 728 F.2d 846, 859 (7th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984); United States v. Murray, 753 F.2d 612, 615 (7th Cir.1985); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977); United States v. Meeks, 857 F.2d 1201, 1204 (8th Cir.1988); United States v. Blanton, 884 F.2d 973, 977 (7th Cir.1989). However, the testimony presented at trial regarding the purchase price of the substance, the covert actions related to the substance, and the witnesses' familiarity with cocaine constitutes proper circumstances on which the identity of a controlled substance may be established. Roman, 728 F.2d at 859.

                contacts to assist in cocaine distribution, and directed the pricing of cocaine.   The evidence also reveals that Marshall directed others to wire transfer and ship the proceeds of cocaine sales, received wire transferred and shipped proceeds, directed others to acquire firearms on his behalf, and financially backed the straw purchase of firearms without filing federally required forms.   The evidence against Elliot is equally abundant.   It establishes that Elliot participated in the packaging and shipping of large quantities of cocaine from Los Angeles to Minneapolis and Indianapolis, travelled to Minneapolis to distribute cocaine, attempted to establish contacts in Cleveland, Ohio for cocaine distribution, and collected money from the distribution of cocaine
                

The defendants further argue that the government failed to prove that a conspiracy or agreement existed. To establish conspiracy with the intent to distribute, the government need only establish that there was an agreement between two or more persons to commit these crimes. United States v. Lamon, 930 F.2d 1183, 1190 (7th Cir.1991). To establish conspiracy to make straw purchases of firearms and conspiracy to commit money laundering, the government need only establish that there was an agreement between two or more persons to commit these crimes and that one overt act was committed. United States v. Yamin, 868 F.2d 130 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). Moreover, this court has recognized that circumstantial evidence may be the sole support of a conspiracy conviction. Lamon, 930 F.2d at 1190-91; United States v. Durrive, 902 F.2d 1221, 1229 (7th Cir.1990). Therefore, contrary to his assertions, direct evidence of Elliot's presence in Indianapolis is not essential to his conspiracy convictions. Also, it is well established that a defendant need not be aware of all the details of the conspiracy in order to be a co-conspirator. Blumenthal v. United States, 332 U.S. 539, 556, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947).

B. Improper Use of the Indictment

Both defendants argue that they were denied a fair trial as a result of the prejudicial surplusage of the indictment and its misuse before the jury. However, neither defendant filed a motion under Federal Rule of Criminal Procedure 7(d) requesting the trial court to strike the alleged surplusage. Moreover, neither defendant objected at trial either to the reading of the indictment before the jury or to the jury being provided with a copy of the indictment during their deliberations. Accordingly, our standard of review is...