U.S. v. Ogle, 05-1035.

• Decision Date: 05 October 2005
• Docket Number: No. 05-1035.,05-1035.
• Citation: 425 F.3d 471
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joyce Kay OGLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

425 F.3d 471

UNITED STATES of America, Plaintiff-Appellee, v. Joyce Kay OGLE, Defendant-Appellant.

No. 05-1035.

United States Court of Appeals, Seventh Circuit.

Submitted April 11, 2005.

Decided October 5, 2005.

Angela Scott, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Joyce K. Ogle, Greenville, IL, pro se.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

On March 22, 2002, Joyce Kay Ogle and Alonzo Suggs were each convicted of conspiracy to possess, with the intent to distribute, at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2.¹ Ogle and Suggs appealed. We affirmed both convictions in an Order dated February 14, 2003. In doing so we held that Ogle and Suggs were not entitled to a jury instruction on multiple conspiracies because only one, uninterrupted conspiracy existed and had been presented at trial—the one charged. See United States v. Suggs, 59 Fed.Appx. 818, 818-20 (7th Cir.2003). In addition, we concluded that even if evidence of an uncharged conspiracy was admitted in error, that error would have been harmless due to the wealth of evidence supporting a conviction on the conspiracy set forth in the indictment. See id. at 820.

Shortly thereafter, Ogle filed a motion pro se with the district court requesting a new trial based on what she alleged was "newly discovered evidence" pursuant to FED. R. CRIM. P. 33(b)(2). The district court denied her motion, finding that Ogle had failed to establish the requisite grounds for a new trial as set forth in United States v. Mitrione, 357 F.3d 712, 718 (7th Cir.2004). We affirm.

I. BACKGROUND

Between March 24, 2000 and July 18, 2000, federal authorities arrested three individuals, Marico Bratcher, Stacy Wilkins and Kevin Wren for possession of varying amounts of cocaine. With their cooperation, the Federal Bureau of Investigation ("FBI"), in conjunction with the Federal Drug Enforcement Administration ("DEA"), unraveled what was believed to be a drug trafficking conspiracy with Alonzo Suggs acting as ringleader. Suggs' role in the conspiracy was discovered primarily due to the fact that each of the individuals arrested, independent of each other named him as their primary source for illegal drug purchases.

After interrogating Bratcher, Wilkins, and Wren, authorities also learned that Suggs received shipments of drugs via commercial airline flights. This information proved reliable, for on June 27, 2000, the authorities were informed of a suspicious suitcase inbound from Phoenix, which was later discovered to be a shipment of cocaine being delivered to Suggs. The discovery was made primarily as a result of a routine bag inspection performed at the Sky Harbor Airport in Phoenix, Arizona by Sergeant Robert Hunsich of the Phoenix Police Department. Sergeant Hunsich observed what his training led him to believe was a suspicious suitcase bound for Lambert Field in St. Louis, Missouri. Consistent with protocol, Sergeant Hunsich immediately alerted authorities in St. Louis to the bag's presence and informed them of his belief that it may contain contraband.² When the flight arrived in St. Louis, Detective Gary Sodoma of the St. Louis Police Department, Bureau of Drug Enforcement, inspected the luggage with the aid of a drug detection canine. As suspected, the dog alerted the officers to the presence of narcotics. Instead of confiscating the bag immediately, the agents allowed the suitcase to proceed routinely to the baggage claim area where officers observed a man, later identified as John Ellebracht, take possession of the suitcase and attempt to depart the airport.

As Ellebracht proceeded through a security checkpoint with the suitcase, DEA Agent Ed Remspecher confronted him and inquired as to whether he could ask him some questions. Ellebracht, after speaking with the agents, consented to a search of the luggage. While being questioned by Agent Remspecher prior to the suitcase being opened, Ellebracht made it known that he was unaware of the contents of the suitcase and stated that he did not possess the key to open it. Agent Remspecher, after forcing open (manually separating the zipper) the bag, detected a strong odor of marijuana and observed several clear cellophane bundles coated with a "pinkish-red . . . grease." Concluding that the suitcase contained contraband, agents read Ellebracht his Fifth Amendment rights and placed him under arrest for possession of a controlled substance. When the contents of the suitcase were subsequently examined, DEA officers discovered that it contained more than ten kilograms of cocaine and more than seven kilograms of marijuana.

Ellebracht proclaimed to the agents that he was completely unaware that the suitcase contained any drugs and explained that he was merely transporting the bag and its contents on behalf of an individual known to him only as "Lo." In return for his services, "Lo" had allegedly agreed to pay Ellebracht $500. Ellebracht was scheduled to meet "Lo" that evening at a fast food restaurant in St. Louis. When asked to identify the man he knew as "Lo" in a photographic lineup, Ellebracht selected a photograph of Suggs. Ellebracht agreed to cooperate with the agents and attempted, in the presence of the law enforcement officers, to contact Suggs with the telephone number that he (Suggs) had provided.

Ellebracht left numerous messages on Suggs' voice mail. The calls were later returned by Joyce Kay Ogle rather than Suggs. During the conversations that followed, Ellebracht attempted to dissuade Ogle from getting involved telling her "you don't know what's going on" and added, "stay out of this." Yet, Ogle responded, "Oh, I know what's going on." She then told Ellebracht that he would not be able to meet with Suggs until she, meaning Ogle, met with him first. She told him, "something is up John. Until you come talk to me, he's not going to do anything. You might sit there all night." Ogle then notified Ellebracht that she would wait for him at the 1860's Hard Shell Café, a local restaurant in the city of St. Louis.

Later that evening, DEA Agent Sam Zouglas approached Ogle at the Café bar and placed her under arrest. Ogle told Agent Zouglas and Agent Mike Williams that "Lo" had called her and told her to meet Ellebracht at the 1860's Hard Shell Café. Ogle claimed she was instructed by "Lo" to page him when Ellebracht appeared. Ogle agreed to cooperate with the authorities and tried to contact Alonzo Suggs, but was unsuccessful. Ogle was later released on bond.³

In October 2000, a grand jury indicted Suggs, Ogle and Ellebracht each on one count of conspiracy to possess cocaine with intent to distribute from March of 1999 "to on or about July 27, 2000."⁴ Prior to trial, Ellebracht entered a plea of guilty to the charges in return for a favorable sentencing recommendation from the government and agreed to aid in the prosecution of Suggs and Ogle as well as testify against them at trial.

At trial, Ellebracht testified that Ogle had introduced him to crack cocaine and had recruited him as a courier for Alonzo Suggs. He further stated that Ogle and he had, on several occasions used crack cocaine—some of which he recalled having obtained directly from Suggs. Ellebracht stated that he had smoked crack on an average of twice a week for the last two-and-a-half years. Ellebracht also testified that it was Ogle that had introduced him to Suggs and recruited him to act as a drug courier, contradicting a pre-trial statement he had made earlier denying that Ogle had recruited him. On cross-examination, Ellebracht was thoroughly questioned about the inconsistencies between his pre-trial statement (where he denied Ogle's involvement) and his testimony at trial implicating Ogle. On redirect, however, he insisted that he was now telling the truth and stated that in his previous statements he had attempted to shield Ogle from trouble because he "cared for her" and "didn't want to involve her in what [he] was doing."

A jury subsequently found both Suggs and Ogle guilty of conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1). Both defendants appealed and, in an Order dated February 14, 2003, we affirmed both convictions. In our decision, we held that Ogle and Suggs were not entitled to a jury instruction on multiple conspiracies as they contested because, according to the testimony presented, only one, uninterrupted conspiracy existed—the one that was charged. See Suggs, 59 Fed.Appx. at 818-20. In addition, we concluded that even if evidence of an uncharged conspiracy were admitted in error, any error would have been harmless due to the overwhelming amount of evidence introduced in support of a conviction on the charged conspiracy. See id. at 820.

Shortly thereafter, Ogle filed a pro se motion for a new trial with the district court based on what she alleged to be "newly discovered evidence" pursuant to FED. R. CRIM. P. 33(b)(2). The district court denied her motion finding that Ogle had failed to establish the grounds for a new trial as set forth in Mitrione, 357 F.3d at 718.

II. ISSUES

Ogle's motion for a new trial was drafted pro se and, as such, we construe the claims contained therein liberally. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001), accord Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). After much thought, and taking into consideration the principles enunciated in Haines v. Kerner, we are able to discern two alternative arguments proffered by Ogle as to why she believes that the district judge erred in refusing to grant her a new trial: (a) that the trial court erroneously applied the standard set forth in United States v. Mitrione, 357 F.3d 712 (7th Cir.2004) to her claim that she should be granted a new trial based on her allegation that the government prosecutor knowingly...