U.S. v. Shorter

• Decision Date: 04 May 1995
• Docket Number: Nos. 94-1465,s. 94-1465
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John SHORTER, a/k/a Leon J. Johnson, a/k/a Larry Johnson, and Jerre Tanksley, Defendants-Appellants. & 94-1663.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1248

54 F.3d 1248

UNITED STATES of America, Plaintiff-Appellee, v. John SHORTER, a/k/a Leon J. Johnson, a/k/a Larry Johnson and Jerre Tanksley, Defendants-Appellants.

Nos. 94-1465 & 94-1663.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1994.

Decided May 4, 1995.

Andrew B. Baker, Jr. (argued), Philip P. Simon, Asst. U.S. Atty., Dyer, IN, David H. Miller, Asst. U.S. Atty., Robert Gevers, Fort Wayne, IN, for U.S.

Frank J. Gray (argued), Beckman, Lawson, Sandler, Snyder & Federoff, Fort Wayne, IN, for John Shorter.

Michael S. O'Connell (argued), O'Connell & Ryan, Chicago, IL, for Jerre Tanksley.

Before FLAUM, RIPPLE, and GARZA, ^* Circuit Judges.

GARZA, Circuit Judge.

John Shorter and Jerre Tanksley were convicted for offenses related to their membership in a cocaine distribution conspiracy. ¹ Shorter appeals both his conviction and his sentence, and Tanksley appeals his sentence. We affirm Shorter's conviction and sentence, and we vacate and remand Tanksley's sentence.

I

John Shorter and Verlyn Roux, according to Roux's testimony at trial, agreed to conduct a cocaine business in Fort Wayne, Indiana. Shorter functioned as the supplier, and Roux fronted the cocaine to distributors, collected the money, and forwarded it to Shorter. ²

Roux met Tony Davidson and Jerre Tanksley and started fronting them cocaine. Tanksley's wife, Camilla Tanksley, helped him sell the cocaine supplied by Roux. Roux informed Davidson and Tanksley that Shorter was the supplier, and, when Shorter arrived in Fort Wayne, introduced Davidson and Tanksley to Shorter. Thereafter, if Davidson or Tanksley could not get cocaine from Roux, they obtained it from Shorter.

Shorter supplied Roux with cocaine by personally transporting it or sending it Federal Express from California. Shorter then picked up the proceeds from Roux in Fort Wayne or had Davidson or Roux wire the money to California via Western Union.

When Davidson was arrested for narcotics offenses, Tanksley persuaded his wife, Camilla, to use her house as bond for Davidson, telling her that he knew Davidson and his wife through Shorter. Roux later exited the distribution network for a period of time, during which Shorter supplied Davidson directly and Tanksley through Davidson. When Davidson exited the network for a short time, his wife, Francetta Davidson, sold cocaine for Shorter. Francetta showed Direcia Martin, Shorter's girlfriend, how to cut up the crack cocaine and told her that Shorter was sending the cocaine supply from California. Davidson returned to Fort Wayne and restarted selling cocaine for Shorter, but Martin handled the money and deliveries to the Davidsons. Roux also rejoined the network.

Shorter, Tanksley, and Roux were indicted on the basis of their cocaine distribution activities. The grand jury charged Shorter with 1) conspiracy to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. Sec. 846; 2) conspiracy to conduct interstate wire transfers involving proceeds of the distribution of crack cocaine, in violation of 18 U.S.C. Sec. 371; and 3) conducting an interstate wire transfer involving proceeds of the distribution of crack cocaine, in violation of 18 U.S.C. Sec. 1956(a)(1)(A)(i). The grand jury charged Roux with the conspiracy and money laundering counts listed above, and it charged Tanksley with the cocaine conspiracy count and perjury, in violation of 18 U.S.C. Sec. 1623(a).

Shorter filed a motion for severance of his trial from that of Roux and Tanksley, which the district court denied. A month later, Roux pled guilty pursuant to a plea agreement. A few days before trial, Shorter wrote a letter to Roux suggesting that Roux should not implicate Shorter when he testified. The letter included statements such as "don't end my life by saying what they think is true," "let me fight them without you helping them," "If you don't remember everything or if you don't see things that way they do what can they do," "you can tell them what you know without giving them nothing," "you can help me by not hurting me," and "we are all hoping that you haven't given a statement yet or if so that the statement doesn't hurt me."

Shorter renewed his motion for severance before trial, which the district court denied. On the second day of trial, Tanksley pled guilty to the cocaine conspiracy and perjury counts. At the close of the Government's case, Shorter moved for a judgment of acquittal, which the district court denied. ³ Shorter was convicted on all three counts. After the verdict, Shorter filed motions for judgment of acquittal both through his counsel and pro se; the district court denied both motions.

At the first sentencing hearing, the district court determined that Shorter was responsible for 2.15 kilograms of crack cocaine and that he was eligible for a four-level enhancement under Sec. 3B1.1(a) of the Sentencing Guidelines as an organizer or leader of criminal activity involving five or more participants, see United States Sentencing Commission, Guidelines Manual Sec. 3B1.1(a) (Nov.1992). Two months later, Tanksley's counsel moved to withdraw. At the second sentencing hearing, the district court, without ruling on the motion to withdraw, attributed 1,800 grams of cocaine base to Tanksley, assessed a two-level enhancement for the perjury, and rejected Tanksley's argument that his offense level should be reduced because he accepted responsibility for his actions and because he was only a minor participant in the conspiracy.

Shorter was ultimately sentenced to 360 months' imprisonment and fined $10,000. ⁴ Tanksley was ultimately sentenced to 262 months' imprisonment. ⁵

II

A

Tanksley contends that he should be resentenced because his attorney had a conflict of interest that the district court failed to address. "A criminal defendant is entitled to counsel whose undivided loyalties lie with his client." United States v. Ellison, 798 F.2d 1102, 1107 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987); see also Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981) (noting a "right to representation that is free from conflicts of interest"); United States v. Ziegenhagen, 890 F.2d 937, 939 (7th Cir.1989) (noting that Sixth Amendment "guarantee includes representation that is free of any conflict of interest with counsel").

At sentencing, Tanksley's counsel stated that Tanksley had accused her of forcing him to plead guilty. ⁶ In a motion to withdraw, the attorney also asserted that Tanksley was making false statements to the court. ⁷ Tanksley argues that counsel's action demonstrated a conflict of interest which prevented the attorney from representing him at sentencing with undivided loyalties. We agree. When a defendant accuses his counsel of improper behavior and the counsel disputes his client's accusations, an actual conflict of interest results because "any contention by counsel that defendant's allegations were not true would (and did) contradict his client." Ellison, 798 F.2d at 1107.

Because the district court failed to conduct a hearing and determine the impact of the conflict of interest, see Dently v. Lane, 665 F.2d 113, 117 (7th Cir.1981) (requiring evidentiary hearing on issue of conflict of interest), we will presume that the conflict prejudiced Tanksley if he has shown a possibility of prejudice. Ziegenhagen, 890 F.2d at 940 (explaining that reviewing court will presume prejudice where defendant shows possible prejudice and trial court fails to conduct inquiry into conflict). ⁸ Tanksley argues that he was prejudiced because his counsel failed to argue for a departure outside the Sentencing Guidelines' mandatory range, thereby depriving him of the chance that the district court may have sentenced him to a lesser term of imprisonment. Tanksley has therefore shown the possibility that the conflict of interest prejudiced him, and we therefore presume that it did. See Holloway v. Arkansas, 435 U.S. 475, 484-91, 98 S.Ct. 1173, 1178-82, 55 L.Ed.2d 426 (1978) (presuming prejudice where conflict of interest exists); Ellison, 798 F.2d at 1107 ("This presumption of prejudice is necessary because a true conflict of interest forecloses the use of certain strategies and thus the effect is difficult if not impossible to measure."). ⁹ Accordingly, we vacate Tanksley's sentence and remand for resentencing with new counsel. ¹⁰ See Wood, 450 U.S. at 274, 101 S.Ct. at 1104 (requiring the trial court to "hold a new [proceeding] that is untainted by a legal representative serving conflicting interests"). ¹¹

B

Shorter contends that the evidence was insufficient to support his cocaine conspiracy conviction because the Government did not prove the single cocaine conspiracy with which he was charged, but instead proved only multiple independent conspiracies. A defendant challenging the sufficiency of the evidence bears a heavy burden. United States v. Byerley, 999 F.2d 231, 234 (7th Cir.1993). We review the evidence "and all the reasonable inferences that can be drawn from the evidence" in a light most favorable to the government, United States v. Goines, 988 F.2d 750, 758 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993); see also United States v. Towers, 775 F.2d 184, 189 (7th Cir.1985) ("A reviewing court determining whether the evidence established a single conspiracy or multiple conspiracies must consider the evidence in the light most favorable to the government."), and we neither weigh the evidence nor evaluate the credibility of the witnesses. Byerley, 999 F.2d at 234. "Whether the evidence at trial established a single conspiracy is a question of fact for the jury." United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir.1989). Accordingly, we will reject a sufficiency challenge if any rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Montgomery, 990 F.2d 266, 268 (7th Cir.1993)...