U.S. v. McGee

Decision Date20 July 2005
Docket NumberNo. 01-3071.,No. 01-2493.,No. 01-4027.,No. 01-4235.,No. 02-2153.,No. 01-3978.,No. 02-1136.,No. 02-1130.,No. 01-4139.,01-2493.,01-3071.,01-3978.,01-4027.,01-4139.,01-4235.,02-1130.,02-1136.,02-2153.
Citation408 F.3d 966
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Keith McGEE, Thomas King, Larone Brim, Harold McKinzie, Tony Banks, Rabboni Smith, John Ector, and Flozell McGee, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Terra Brown (argued), Office of the United States Attorney, Chicago, IL, for U.S., Plaintiff-Appellee.

Gerald J. Collins, Chicago, IL, for Keith McGee, Defendant-Appellant.

Dean A. Strang, Thomas G. Wilmouth, Federal Defender Services of Eastern Wisconsin, Inc., Milwaukee, WI, for Thomas King, Defendant-Appellant.

Paul M. Brayman, Chicago, IL, for John Ector, Defendant-Appellant.

Richard H. Parsons, Johanna M. Christiansen, Office of the Federal Public Defender, Peoria, IL, for Larone Brim, Defendant-Appellant.

Kent R. Carlson, Paul M. Brayman (argued), Chicago, IL, for Flozell McGee, Defendant-Appellant.

Michael B. Nash (argued), Chicago, IL, for Tony Banks, Defendant-Appellant.

Francis C. Lipuma, Chicago, IL, for Harold McKinzie, Defendant-Appellant.

Ellen R. Domph, Chicago, IL, for Rabboni Smith, Defendant-Appellant.

Before FLAUM, Chief Judge, and BAUER and POSNER, Circuit Judges.

BAUER, Circuit Judge.

A grand jury indicted the eight above-named defendants and seven others in 1999 in a thirty-nine count indictment based on their respective roles in a drug conspiracy in the Englewood neighborhood on Chicago's South Side. The indictment charged the defendants with various drug offenses, including conspiracy to distribute narcotics, possession with intent to distribute narcotics, and use of a telephone to facilitate the conspiracy. Larone Brim pleaded guilty and the other seven defendants-appellants proceeded to trial. After a three-week trial, a jury convicted Keith McGee, Thomas King, Tony Banks, Rabboni Smith, John Ector, and Flozell McGee on all counts. The jury acquitted Harold McKinzie on the conspiracy count, but convicted him on two telephone facilitation counts. McKinzie subsequently pleaded guilty to two previously severed counts of possession with intent to distribute.

The defendants, individually and collectively, appeal raising numerous issues. For the reasons stated herein, we affirm the defendants' convictions, vacate and remand Ector's case for resentencing, and order a limited remand with respect to the sentences of King, Smith, Keith McGee, Flozell McGee, Brim, and McKinzie pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

I. Background
A. Investigation and Indictments

In 1997, while investigating Charles Jackson, a suspected drug dealer in Chicago, the FBI identified Robert Allen as a cocaine supplier in Chicago's Englewood neighborhood. The FBI eventually obtained authorization to monitor Allen's land line and cellular telephones from April to June 1998. During that period, the FBI intercepted over 4,000 telephone calls, many of which involved drug transactions.

In August 1998, based in part on information from the intercepted phone calls, the FBI arrested Allen, Antwayne Palmore, Samuel Redding, and Irving Tillman—all of whom subsequently pleaded guilty to drug conspiracy charges and agreed to cooperate with the government. Thereafter, and in part as a result of their cooperation, the grand jury returned an indictment against defendants Keith McGee, King, Banks, Smith, Ector, Flozell McGee, McKinzie, Brim, and seven others. All defendants were charged with conspiring, between January 1997 and August 1998, to distribute and possess with intent to distribute more than five kilograms of cocaine and more than fifty grams of cocaine base, in violation of 21 U.S.C. § 846. The grand jury further charged King with possessing with intent to distribute approximately 123.5 grams of cocaine on or about January 6, 1998, in violation of 21 U.S.C. § 841(a)(1). In addition, the grand jury charged McKinzie with possessing with intent to distribute approximately 60.7 grams of cocaine and 92 grams of cocaine base on or about December 8, 1999, in violation of 21 U.S.C. § 841(a)(1). The grand jury also charged each defendant with at least one count of using a telephone to facilitate the conspiracy, in violation of 21 U.S.C. § 843(b).

On September 1, 2000, Brim pleaded guilty to the conspiracy count and to four telephone facilitation counts. On September 8, 2000, the district court severed the possession with intent to distribute counts against McKinzie from the trial. The remainder of the case proceeded to trial in January 2001.

B. Evidence at Trial

Allen, Palmore, Samuel Redding, and Tillman all testified for the government at trial. According to Allen and Palmore, Allen, Palmore, Franklin Redding, and King "grouped together" to sell cocaine in early 1997 due to a "drought" of cocaine in Chicago. Each had been involved in the drug trade previously. Allen was in charge of the operation; Palmore contributed money, suppliers, and customers; Franklin Redding contributed customers and drugs; and King picked up kilograms of cocaine from suppliers and sold them to drug dealers. Although Palmore and Franklin Redding left the operation at different points due to disputes over money, both later resumed buying and selling drugs in connection with the operation.

The drug operation obtained powder cocaine in kilogram quantities from various drug suppliers. Before the drugs were resold, Allen usually "rerocked" the powder cocaine, adding a mix to it in order to increase the volume of the cocaine and the operation's profits. In order to create crack cocaine, Allen heated a mixture of the "rerocked" cocaine, baking soda, and water to an oil base and then cooled it into a hardened substance. The operation then resold the "rerocked" powder cocaine and crack cocaine to drug dealers in quantities ranging from 63 grams to multiple kilograms. From early 1997 to August 1998, the operation sold over 100 kilograms of crack cocaine and over 100 kilograms of powder cocaine, with a profit of approximately $31,000 on each kilogram. Allen and Palmore kept most of the profits; Franklin Redding and King received $1,000 and $500 per kilogram respectively.

Like many drug dealers, Allen and his cohorts frequently spoke in code. Allen translated the code for the government before trial and explained the code to the jury at trial. Crack cocaine was referred to as "tight" or "hard." With respect to quantity, "125th street" was code for 125 grams of drugs, "halfway home" was code for one-half kilogram, and "all the way home" was code for one kilogram. Although the operation generally expected payment from customers upon delivery of the drugs, it "fronted" drugs to certain customers with the understanding that they would pay the operation within a reasonable period of time.

In presenting the evidence, the government addressed each defendant individually, beginning with Banks. Allen testified that he and Banks grew up together. When Banks was released from jail in 1998, Allen gave him money, drugs, and a car. Allen testified that there were numerous sales between him and Banks, and that Banks bought a total of approximately two kilograms of cocaine from Allen in 1998. Allen fronted Banks drugs if they were "just for him," and Banks paid Allen on delivery when he acted as a middleman. On occasion, Allen cooked crack cocaine for Banks.

Ector began dealing drugs with Allen in 1998. According to the evidence presented at trial, Ector purchased a total of four kilograms of powder cocaine from the drug operation in 1998. On one occasion, in early 1998, Ector arranged with Palmore to buy one-eighth of a kilogram of cocaine; Allen and Samuel Redding met Ector at a gas station to complete the deal. Samuel Redding also testified about two additional drug deals between the operation and Ector, with Ector purchasing 250 grams of cocaine on one occasion and one-half kilogram of cocaine on another occasion.

King actively worked for the drug operation between 1997 and April 1998. While working for the operation, King picked up kilograms of cocaine from suppliers and sold it to drug dealers. On two occasions in 1997, King delivered one-eighth of a kilogram of cocaine to Samuel Redding. In late 1997, King delivered one-half of a kilogram of cocaine to Irving Tillman. On two occasions in 1998, King sold Irving Tillman one-eighth of a kilogram of cocaine. On both occasions in 1998, King delivered the drugs to Irving Tillman's apartment and was present while he cooked the powder cocaine into crack cocaine.

The McGee brothers, Keith and Flozell, engaged in numerous drug deals with Allen and his associates. Between 1997 and 1998, Keith McGee purchased four kilograms of powder cocaine and two kilograms of crack cocaine from the operation. Keith McGee acted as a middleman, selling those drugs to other customers, including his brother, Flozell. During 1998, members of the drug operation sold a total of three kilograms of powder cocaine to Flozell McGee in one-eighth of a kilogram quantities. The FBI intercepted and recorded numerous phone calls reflecting the McGee brothers' involvement in the operation.

Allen met McKinzie in late 1997 when McKinzie began buying drugs from the operation. According to Allen, McKinzie bought powder and crack cocaine in quantities of one-sixteenth to one-eighth of a kilogram. Irving Tillman testified that he delivered drugs to McKinzie approximately twenty times between late 1997 and early 1998.

Allen met Rabboni Smith in 1997. In 1997 and 1998, Smith purchased approximately five kilograms of powder cocaine and four kilograms of crack cocaine. The operation fronted drugs to Smith, who paid various members of the operation after he sold the drugs to his...

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