U.S. v. Vaughn

• Decision Date: 03 November 2009
• Docket Number: No. 08-4169.,08-4169.
• Citation: 585 F.3d 1024
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyrone VAUGHN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

585 F.3d 1024

UNITED STATES of America, Plaintiff-Appellee, v. Tyrone VAUGHN, Defendant-Appellant.

No. 08-4169.

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2009.

Decided November 3, 2009.

Daniel L. Bella, Office of the United States Attorney, Hammond, IN, Donald J. Schmid (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

William J. Stevens (argued), Lakeside, MI, for Defendant-Appellant.

Before KANNE, ROVNER and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

A jury convicted Tyrone Vaughn of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Vaughn contends that the evidence was insufficient to support his conviction for possession of a firearm in furtherance of a drug trafficking crime. He also contests the district court's determination on sentencing of the amount of drugs he dealt, arguing that his own uncorroborated statement to police officers following his arrest is insufficient to establish the amount of drugs he bought and sold. We affirm.

I.

Tyrone Vaughn supplied crack cocaine to Richard Gee on a regular basis. The two men knew each other through their work as truck drivers, with Gee occasionally driving trucks for Vaughn. In November 2007, a federal law enforcement agent came to Gee's home looking for his son who was implicated in a criminal case. Gee decided to clean up his life and set a better example for his son, and so he told the Alcohol, Tobacco and Firearms ("ATF") agent, Jason Gore, that he wanted to act as a confidential informant for the ATF. Gee told Agent Gore about Vaughn's drug trafficking, and offered other information about Vaughn. Agent Gore accepted Gee's offer and began to process the paperwork to document Gee's anticipated work as a confidential informant.

On November 19, 2007, before Agent Gore finished processing the paperwork, Gee called to say that Vaughn had "fronted" him a pound of marijuana.¹ Agent Gore took custody of the marijuana, but was not pleased with this development because Gee was not yet documented and because Agent Gore could not control the situation. Approximately one week later, with the paperwork still pending, Gee called Agent Gore again, this time to report that Vaughn had just fronted him six additional pounds of marijuana. Agent Gore again took custody of the drugs and advised Gee to avoid Vaughn until the paperwork was complete.

By December 2, 2007, Gee was an officially sanctioned confidential informant. He owed Vaughn $650 for the initial one-pound delivery of marijuana, so Agent Gore arranged for Gee to deliver the money while carrying recording devices monitored by law enforcement officials. Gee delivered the money to Vaughn at his home, and as law enforcement listened, the two discussed payment for the additional six pounds. In 2006, Gee had given Vaughn an SKS rifle as payment for a quarter ounce of crack cocaine. Because Vaughn was a felon who was not allowed to own firearms, he had written up a receipt showing that Gee sold the rifle to Vaughn's wife for $300 After paying for the pound of marijuana, Gee asked Vaughn if he could buy back the rifle he had previously given Vaughn. The ATF had supplied Gee with an additional $300 to purchase the gun back. But Vaughn was not interested in the $300. Instead he proposed that if Gee could sell the additional six pounds of marijuana and pay for it in full, Vaughn would give the rifle back to Gee. Agent Gore had also prepared Gee to introduce a "business partner" to Vaughn. In reality, the business partner was an undercover ATF agent who posed as a truck driver by the name of "Wild Bill." Gee mentioned to Vaughn that Wild Bill had sold the first pound of marijuana and would be enlisted to sell the additional six pounds.

At the urging of the ATF agents, Gee subsequently set up a December 18, 2007 meeting among Gee, Vaughn and Wild Bill. The agents again arranged to record the meeting, which was set to take place in a department store parking lot. They supplied Gee and Wild Bill with $3300, the agreed-upon price for the six pounds of marijuana. Vaughn arrived at the parking lot in a car with three female passengers. He entered Gee's car and Wild Bill paid him $3300. Gee paid Vaughn an additional $200 to settle an old drug debt. Vaughn then engaged Wild Bill in a discussion of his ability to supply more marijuana, as well as ecstasy pills and cocaine. Vaughn then returned to his own car, where he pulled the SKS rifle (wrapped in a blanket) from the trunk. He brought it to Gee's car and placed it in the back seat.

Agent Gore then arranged for Gee and Wild Bill to meet Vaughn at a hotel on February 5, 2008, where Vaughn was arrested by the waiting agents. When Agent Gore searched Vaughn, he found 9.47 grams of crack cocaine in Vaughn's pocket, packaged into four small bags contained in one larger bag. Agent Gore read Vaughn his Miranda rights, Vaughn waived his right to remain silent and participated in an interview with the agent. At that interview, Vaughn told Agent Gore that the two trucks that comprised his trucking business were both inoperable and that his entire income came from selling marijuana, cocaine and guns. Vaughn told Agent Gore that he had dealt cocaine, marijuana and firearms for most of his life. Apparently seeking to make a deal with Agent Gore, Vaughn offered information about other people in the drug trade, and other purchases and sales he had made, including a forty-pound purchase of marijuana and a quarter-kilogram purchase of crack cocaine. He also told Agent Gore the name of the person who was to supply additional guns to sell to Wild Bill.

In the end, no deal was struck and Vaughn was charged in a four-count indictment as we detailed above. After the government rested its case, Vaughn moved for a judgment of acquittal on the count charging possession of a firearm in furtherance of a drug trafficking crime. He contended that the firearm did not further the crime because Vaughn had already been paid in full for the six pounds of marijuana when Vaughn returned the gun to Gee. The court denied the motion, and denied the renewed motion at the close of evidence. The jury convicted Vaughn on all four counts. He appeals.

II.

On appeal, Vaughn raises two claims. First, he challenges his conviction for possessing a firearm in furtherance of a drug trafficking crime. According to Vaughn, his possession of the rifle did nothing to further any drug transaction. Second, Vaughn contests the district court's calculation of the amount of drugs at issue in determining a guidelines sentence for Vaughn. Vaughn argues that his own statements about drug quantities he dealt were exaggerations and cannot be used to establish his sentence without corroboration.

A.

Vaughn's first challenge is to the sufficiency of the evidence on the charge of possessing a firearm in furtherance of a drug trafficking crime. We will overturn a jury verdict for insufficiency of the evidence only if, after viewing the evidence in the light most favorable to the government, the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt. United States v. Boisture, 563 F.3d 295, 298 (7th Cir.2009); United States v. Groves, 470 F.3d 311, 323-24 (7th Cir.2006). Vaughn asserts that his possession of the rifle did not facilitate the delivery of the six pounds of marijuana in any way. Instead, he maintains, the drug transaction was complete when Wild Bill paid $3300 for the marijuana and Gee paid $200 to Vaughn. Vaughn insists that the subsequent transfer of the rifle did not further the already completed drug transaction. Vaughn contends that the mere presence of a firearm at a drug transaction is not enough to establish a violation of section 924(c). He also cites Watson v. United States, 552 U.S. 74, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007), as holding that receiving a gun in barter for drugs is not "use" of a gun in connection with a drug transaction. Vaughn questions whether trading a gun for money after the drug price is paid in full can be said to further a drug trafficking crime when Watson holds that a defendant does not violate section 924(c) when he trades a gun for drugs. The government responds that the rifle furthered the drug transaction by providing an incentive or sales commission to Gee for selling the entire six-pound quantity of marijuana and paying for it in full.

Vaughn's portrayal of the transaction construes some of the evidence in a light favorable to Vaughn, and of course, we must take the evidence in the light most favorable to the government at this stage. See Boisture, 563 F.3d at 298. Although Vaughn would have us believe that he simply sold the gun back to Gee after the drug transaction was complete, the government's evidence showed that there was no sale. When Gee gave Vaughn $200 on December 18, Gee was simply paying Vaughn an old debt unrelated to the gun or to the six pounds of marijuana. According to the earlier recorded conversations between Vaughn and Gee, when Gee sought to buy the gun back, Vaughn declined. Instead Vaughn offered to give Gee the gun if Gee could sell the entire six pounds and pay for it in full. Knowing that Gee wanted the gun back, Vaughn held onto it and offered it as an incentive or sales commission. Vaughn carried through on his offer when, after Gee paid in full for the six pounds of marijuana, Vaughn gave him the gun.

The government's theory is novel but we think the evidence was sufficient to prove that Vaughn possessed the rifle in furtherance of a drug trafficking crime. The usual scenario for a section 924(c) charge is a drug dealer...