U.S.A. v. Stott Jr. et al, s. 99-2962
| Decision Date | 26 March 2001 |
| Docket Number | 99-3588,Nos. 99-2962,s. 99-2962 |
| Parties | (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LARRY E. STOTT, JR., ROBERT A. GAUGHAN, also known as BOB, and LONNIE M. FORD, also known as LONNIE, Defendants-Appellants. & 99-3781 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 97 CR 168--James T. Moody, Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.
Larry Stott, Robert Gaughan and Lonnie Ford were all arrested and charged with various crimes arising out of an alleged conspiracy to distribute cocaine and cocaine base. A jury convicted all three men. All of the defendants allege errors in the trial that led to their convictions; Mr. Gaughan and Mr. Ford also appeal their sentences. For the reasons set forth in the following opinion, we affirm the convictions and Mr. Ford's sentence. However, we vacate Mr. Gaughan's sentence and remand for resentencing.
On December 8, 1997, DeShon Anderson and Jerry Bonner were arrested while in possession of marijuana, cocaine and cocaine base. Bonner told Drug Enforcement Administration ("DEA") Agent Maurice King that he would cooperate with the DEA. Bonner further informed Agent King that he had acquired the cocaine and cocaine base from Robert Gaughan on a consignment basis and was transporting the drugs to Lonnie Ford in Indianapolis.
Bonner then allowed the DEA to record telephone conversations he had with Mr. Gaughan and Mr. Ford. In one of these conversations, Bonner arranged for a sale of cocaine to Mr. Ford on December 8. When Bonner arrived at the rendezvous site with Agent King, however, Mr. Ford was not there. Bonner contacted Mr. Ford, who said that he had left the site when he spotted law enforcement officials. Bonner and Mr. Ford set a new rendezvous point at a service station. Mr. Ford arrived at that rendezvous with Larry Stott. Agent King, who was listening to Bonner's conversation through a microphone Bonner was wearing, heard Mr. Ford tell Bonner that one of the cars at the service station was a police car. Agent King then advised the other officers that Mr. Ford was aware of their presence, and the agents arrested Mr. Ford and Mr. Stott at the scene. Mr. Ford never took physical possession of any drugs from Bonner.
At the time of the arrest, agents searched Mr. Ford's vehicle and found a gun in the back seat armrest. The gun was not loaded, but a loaded magazine was found in the front seat armrest. Agents also uncovered $8,000 during the search.
After the arrest of Mr. Ford, Bonner continued to speak to Mr. Gaughan by telephone, and he arranged to meet Mr. Gaughan on December 15 in Indiana to pay Mr. Gaughan for cocaine previously provided to Bonner. Mr. Gaughan, who lived in Chicago, arrived in the company of Lori Kulikowski; Bonner arrived with Agent King. At the meeting, Bonner put a bag, supposedly containing money Bonner owed Mr. Gaughan, into Mr. Gaughan's car. Agents then moved in and arrested Mr. Gaughan and Kulikowski. A search of Mr. Gaughan's car revealed a loaded .38 Smith and Wesson revolver.
After the arrest, Mr. Gaughan and Kulikowksi were transported to the Munster Police Department. There Mr. Gaughan was interviewed by Agent King and others. At that time, Gaughan said that he had sold 20 to 30 kilograms of cocaine to Bonner in the past. He also gave the agents information concerning his supply source.
At some point, the agents discovered that Mr. Gaughan was a diabetic and suffered from cardiovascular disease. According to Mr. Gaughan, he informed officers about his condition and also told them that he was experiencing cramps, nauseousness, clamminess and shortness of breath. Despite this information, the officers refused to retrieve Mr. Gaughan's medication from his car or to contact a physician until he had signed a waiver of his rights. The officers' recollection differed from Mr. Gaughan's. The officers testified that, although they knew of Mr. Gaughan's conditions, he was asked if he was all right and if he needed anything; Mr. Gaughan responded that he did not.1
Mr. Stott, Mr. Gaughan, Mr. Ford, Anderson, Bonner and Kulikowski were all indicted on multiple counts relating to their alleged drug distribution activities.2 Anderson and Bonner both pleaded guilty, and Bonner agreed to testify for the Government against the other defendants. Mr. Stott, Mr. Gaughan and Mr. Ford elected to stand trial.3
At trial, Agent King testified that Mr. Gaughan made a statement after his arrest in which he admitted that he had supplied Bonner with cocaine on 20 to 30 occasions. According to Agent King, Mr. Gaughan also said that his purpose in meeting Bonner in Indiana was to receive payment for cocaine that he had given to Bonner to sell on consignment.4
Bonner testified that he had obtained cocaine from Mr. Gaughan beginning in the spring of 1997 and that, after a while, Mr. Gaughan began providing the drugs on a consignment basis. Bonner would then sell the cocaine to Mr. Ford. When Mr. Gaughan began consigning drugs to Bonner, he in turn provided drugs on consignment to Mr. Ford. Bonner testified that, at first, he acquired cocaine from Mr. Gaughan in powder form and resold it to Mr. Ford in that same form. However, after October 1997, Bonner converted some cocaine to cocaine base, also known as crack, before providing it to Mr. Ford.
At some point during Bonner's dealings with Mr. Ford, Mr. Ford introduced Bonner to Mr. Stott. Mr. Ford told Bonner that Mr. Stott was "his guy" and would be transporting the cocaine on Mr. Ford's behalf. Trial Transcript ("Tr.") at 302. After Bonner's initial meeting with Mr. Stott, Mr. Stott came to Bonner's house to pick up drugs and also traveled with Mr. Ford to meet Bonner for the purpose of purchasing cocaine.
The jury returned different verdicts against each defendant. Mr. Stott was convicted on Count IV (interstate travel in aid of an unlawful activity, December 8, 1997).5 The jury convicted Mr. Gaughan on Count I (conspiracy to possess with intent to distribute), Count III (possession with intent to distribute cocaine, December 8, 1997), Count IV and Count VII (carrying a firearm during and in relation to the conspiracy to possess with intent to distribute cocaine, December 15, 1997). Mr. Ford was convicted on Count II (possession with intent to distribute more than 50 grams of cocaine base, December 8, 1997), Count III, Count IV and Count V (carrying a firearm during and in relation to a conspiracy to possess with intent to distribute, December 9, 1997). The district court then proceeded to sentencing.
To arrive at the appropriate offense level for Mr. Gaughan and Mr. Ford, the district court first determined the amount and kind of drugs attributable to each defendant. The district court found that Mr. Gaughan had delivered 30 kilograms of cocaine powder to Bonner. It further concluded that it was foreseeable to Mr. Gaughan that at least 1.5 kilograms would have been converted to crack cocaine. These amounts resulted in an offense level of 38 and, in combination with Mr. Gaughan's criminal history category, a sentencing range of 235 to 293 months. The district court sentenced Mr. Gaughan to the minimum for his guideline range, 235 months.
The court undertook a similar analysis for Mr. Ford. The court attributed 1.5 kilograms of crack to Mr. Ford, mandating a base offense level of 38. It also gave him a two-level supervisory enhancement. As a Category V offender with a total offense level of 40, Mr. Ford was eligible for a sentence of 360 months to life. The district court sentenced him to 360 months.
The defendants appealed and now challenge various aspects of their convictions and sentences.
Mr. Stott was charged with violating the Travel Act, 18 U.S.C. sec. 1952,6 both as a principal and as an aider and abettor. He contends that the evidence against him was insufficient to support his conviction. Specifically, Mr. Stott maintains that Bonner's testimony was conflicting and unreliable and, therefore, was not sufficient to support his conviction. Mr. Stott also claims that his conviction for violating the Travel Act is inconsistent with his acquittal on all of the other counts. We address each argument below.
With respect to his first argument, Mr. Stott claims that Bonner's testimony was often vague and points out that Bonner never testified at trial that Mr. Stott was a customer of his. Thus, Mr. Stott claims, Bonner's testimony is not credible and is insufficient to support the conviction. However, it is not the role of the appellate court to question the jury's credibility determinations. See United States v. Durham, 211 F.3d 437, 445 (7th Cir. 2000); United States v. Alcantar, 83 F.3d 185, 189 (7th Cir. 1996) (). We shall not find a witness' testimony insufficient to sustain a conviction because it might have omitted some details or might be characterized as vague; we shall reverse a jury verdict only if the testimony was incredible as a matter of law. See United States v. Griffin, 194 F.3d 808, 817 (7th Cir. 1999), cert. denied, 529 U.S. 1044 (2000). To meet this standard, "a defendant must show that testimony was . . . contrary to the laws of nature or unbelievable on its face." United States v. Scott, 145 F.3d 878, 883 (7th Cir. 1998). Mr. Stott has not met this burden with respect to Bonner's testimony, and, consequently, we shall not overturn the jury's verdict.
Mr....
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