U.S. v. Troop
| Decision Date | 05 December 1989 |
| Docket Number | Nos. 89-1811,s. 89-1811 |
| Citation | 890 F.2d 1393 |
| Court | U.S. Court of Appeals — Seventh Circuit |
| Parties | 29 Fed. R. Evid. Serv. 864 UNITED STATES of America, Plaintiff-Appellee, v. Shawn W. TROOP and Kenneth A. Cooper, Defendants-Appellants. & 89-1889. |
Stephen J. Liccione, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for U.S. in No. 89-1811.
Michael J. Backes, Milwaukee, Wis., for Shawn W. Troop.
Matthew L. Jacobs, Stephen A. Ingraham, Francis D. Schmitz, Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, Wis., for U.S. in No. 89-1889.
David E. Lowe, Hachey & Lowe, Milwaukee, Wis., for Kenneth A. Cooper.
Before CUMMINGS, WOOD, Jr., and COFFEY, Circuit Judges.
The defendants-appellants, Kenneth A. Cooper and Shawn W. Troop, were convicted by a jury on February 17, 1989, of conspiracy to possess with intent to distribute and distributing cocaine, 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2; possession with intent to distribute approximately 480 grams of cocaine, 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and possession of a firearm while committing a drug-related offense, 18 U.S.C. Sec. 924(c) and Sec. 2. 1 On appeal, Troop argues that the evidence adduced at trial was insufficient to support a conviction on any of the three counts. Cooper argues that the trial court improperly admitted (1) evidence of his use of cocaine and other prior wrongs and (2) co-conspirator hearsay statements. 2 We affirm.
Troop and Cooper were arrested on November 7, 1988, following the attempted sale of nearly half a kilo of cocaine to DEA undercover agents. Their arrests followed a series of incidents that began on October 27, 1988.
On that date, Milwaukee Police Department Officer Barry Debraska made an undercover purchase of one-half gram of cocaine. This sale occurred in Milwaukee at the 39th Street apartment of Timothy Pernell and Cooper. Officer Debraska identified Troop as the person who opened the barricaded door for him, reset the barricade after he entered, and watched the transaction at close range.
Several hours later, Officer James Williams of the Milwaukee Police Department arrested a person at that apartment who was carrying the prerecorded currency used in the earlier transaction with Officer Debraska. Troop was again present and misidentified himself as "Shawn T. Wiggins" when asked his name.
On November 2, 1988, Milwaukee police executed a search warrant at the 39th Street apartment where they found a small amount of cocaine, a scale, a shoulder holster, and an electronic paging device (a "beeper"). The officers arrested Troop after he told them that he was the occupant of the apartment. Cooper, Pernell, and an unindicted co-conspirator, Ronald Hutt, were also present but were not arrested. After the November 2d raid, the drug sales operations were moved to Hutt's apartment located on West Silver Spring Drive in Milwaukee.
Pernell and Cooper arranged the sale of the one-half kilo of cocaine involved in the November 7th arrests through what turned out to be a confidential informant (the "Informant"). 3 The Informant then contacted DEA Special Agent Raymond Melick.
On November 7th, two unsuccessful attempts to make the one-half kilo sale were made. The DEA Special Agents were unable to make it to the first meet at 41st and Hampton in Milwaukee because of a prior commitment. A second meet was set up through the Informant at the Taco Bell at 61st Street and Silver Spring Drive but the sale was aborted when the parties could not agree where the sale should take place. A third sale location was arranged at the parking lot of the Bonanza Mall at 76th Street and Fond du Lac Avenue.
DEA Special Agents Raymond Melick and William Hehr were waiting in their car at the Bonanza Mall when the defendants arrived. When Agent Melick approached the car in which the defendants and the Informant were sitting, Pernell showed the cocaine to him. Agent Hehr began counting the $12,000 DEA "buy money" within view of Pernell, Cooper, and Troop. Pernell gave the Informant the cocaine, and the Informant got out of the car and headed toward Agent Melick. There were shouts from the back seat demanding that Agent Hehr turn over the money. At this point the police moved in and arrested the defendants.
After the police arrested the defendants, the DEA agents seized 374 grams of cocaine and a gun from Pernell as well as 146 grams of cocaine from the back seat of the car, a beeper 4 and .36 grams of cocaine from Troop and some drug paraphernalia from Cooper.
Defendants Troop and Cooper filed timely Notices of Appeal after the final judgments of conviction and sentence. We have jurisdiction under 28 U.S.C. Sec. 1291.
As a threshold issue we note that Troop's trial counsel failed to file a motion for judgment of acquittal at the close of the government's case. Because of counsel's failure to challenge the sufficiency of the evidence against Troop on all three counts of the indictment, this court must review Troop's sufficiency of the evidence arguments under the plain error doctrine of Fed.R.Crim.P. 52(b). 5 See United States v. Snyder, 872 F.2d 1351, 1357 (7th Cir.1989); United States v. Wynn, 845 F.2d 1439, 1442-43 (7th Cir.1988). Before a reviewing court reverses a conviction based on an error that defense counsel did not raise at trial, the reviewing court must be convinced that reversal "is necessary in order to avert an actual miscarriage of justice, which implies the conviction of one who but for the error probably would have been acquitted." United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985). For an error to be plain it must "be an error that probably changed the outcome of the trial." Id.
Troop contends that the evidence adduced at trial was insufficient to support a conviction on any of the three counts in the indictment. The standard of review used to determine whether a jury verdict is supported by sufficient evidence is clearly established. The reviewing court is to consider all the evidence in the light most favorable to the government and will affirm the defendant's conviction if the court finds that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Grier, 866 F.2d 908, 922 (7th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)); United States v. Hooks, 848 F.2d 785, 788 (7th Cir.1988). Recognizing that Troop therefore bears a heavy burden in overturning the verdict on appeal, we consider Troop's arguments with respect to each of the charges in turn.
To prove that Troop participated in a conspiracy to sell cocaine, the government must show (1) the alleged conspiracy existed and (2) Troop knowingly and intentionally became a member of the conspiracy. United States v. Abayomi, 820 F.2d 902, 905 (7th Cir.), cert. denied, 484 U.S. 866, 108 S.Ct. 189, 98 L.Ed.2d 142 (1987). Troop admits that a conspiracy existed (Def.'s Br. at 10), but denies that he was a member of this conspiracy. We therefore limit our discussion to whether the government showed that Troop was a participant in the conspiracy.
A defendant can be convicted of participation in a single conspiracy with other defendants if the government establishes that he "in some way participated in the [existing] conspiracy." Abayomi, 820 F.2d at 906 (quoting United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978)). Although participation cannot be shown by mere knowledge or approval of, association with, or presence at a conspiracy, Abayomi, 820 F.2d at 906; United States v. Dalzotto, 603 F.2d 642, 645 (7th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979), once the existence of a conspiracy has been established, even if the connection between the defendant and the conspiracy is slight, evidence that establishes the defendant's participation beyond a reasonable doubt is sufficient to convict. United States v. Grier, 866 F.2d 908, 924 (7th Cir.1989) (quoting United States v. Xheka, 704 F.2d 974, 988 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983)); United States v. Williams, 798 F.2d 1024, 1027 (7th Cir.1986). Additionally, the use of circumstantial evidence is permissible and in fact " 'may be the sole support for a conviction.' " Grier, 866 F.2d at 923 (quoting United States v. Nesbitt, 852 F.2d 1502, 1511 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989)).
Finally, we recognize that juries, in reaching their verdicts, are allowed and expected to draw upon their common sense in evaluating what is reasonable to infer from circumstantial evidence. Id.; Nesbitt, 852 F.2d at 1511. Because determinations as to credibility of witnesses are particularly within the province of the jury, a reviewing court, absent extraordinary circumstances, will defer to the jury's credibility findings. Grier, 866 F.2d at 923-24; United States v. Vega, 860 F.2d 779, 794 (7th Cir.1988).
Applying the standards of proof set forth above, it is clear that a jury exercising well-reasoned judgment could find that Troop was part of the conspiracy to distribute cocaine. The evidence presented at trial to connect Troop with the conspiracy included testimony showing that three times between October 27, 1988, and November 3, 1988, law enforcement personnel observed Troop at places where drug operations were being carried out. Specifically, Officer Debraska testified that Troop was at the 39th Street apartment on October 27, 1988, operating the barricades and observing Officer Debraska make his undercover purchase of cocaine. When Officer Williams made an arrest at...
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