U.S. v. Westmoreland

• Decision Date: 20 August 1997
• Docket Number: No. 96-1217,96-1217
• Citation: 122 F.3d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph WESTMORELAND, also known as Smoke, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 431

122 F.3d 431

UNITED STATES of America, Plaintiff-Appellee, v. Joseph WESTMORELAND, also known as Smoke, Defendant-Appellant.

No. 96-1217.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 19, 1997.

Decided Aug. 20, 1997.

Alejandro Menchaca (argued), Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Michael G. Logan, Ashman & Stein, Christopher J. Callahan (argued), Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, ROVNER and EVANS, Circuit Judges,

ILANA DIAMOND ROVNER, Circuit Judge.

A jury convicted Joseph Westmoreland of conspiracy to possess with intent to distribute crack cocaine, being a felon in possession of a firearm, attempt to possess with intent to distribute marijuana, distribution of crack cocaine, and using and carrying a firearm in relation to a drug trafficking crime. Westmoreland contends that the district court erred in instructing the jury on the conspiracy count, that there was insufficient evidence to convict him on the "use and carry" count, that the district court should have allowed him discovery on his selective prosecution claim, and that the sentencing disparity between cocaine base offenses and cocaine powder offenses is unconstitutional. We find no merit in Westmoreland's contentions regarding the jury instruction, the discovery issue and the sentencing disparity issue, but we agree that the evidence was insufficient to convict him of using a firearm in relation to a drug trafficking offense. We therefore reverse his conviction on that count and remand.

I.

Westmoreland was a member of a street gang, specifically, the Undertaker Vice Lords. The main business of the gang was selling drugs, and Westmoreland was a dealer with substantial business. The gang confined their drug selling activities to a specific territory on the west side of Chicago, and mostly dealt heroin and cocaine, although they also sold marijuana as demand warranted. When the gang's supply of marijuana could not meet demand, the gang sought new sources and a confidential informant tipped law enforcement officers to the opportunity. Two undercover special agents from the United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms began meeting with Westmoreland and other gang members in order to investigate their activities. The agents posed as West Coast marijuana dealers. After purchasing smaller amounts of drugs from the defendant, Special Agent John Rotunno and his partner Special Agent Kimberly Morton arranged a larger deal. The Undertaker Vice Lords were to supply crack cocaine to the agents in exchange for marijuana, guns and cash, which was to be paid after the marijuana was sold. On the day of the exchange, Agent Rotunno handed over three pounds of marijuana and two guns to Westmoreland and another gang member. After a brief discussion about the quality of the marijuana and the use of the guns, Westmoreland's companion handed over eleven bags containing crack cocaine. Moments later, the agents signaled their backup units, who arrested Westmoreland and his cohort.

At trial, Westmoreland argued that there were two separate conspiracies and that he was not part of the conspiracy charged in the indictment. The court instructed the jurors that they could convict the defendant only of the conspiracy charged in the indictment, and only if they were convinced beyond a reasonable doubt that the defendant knowingly and intentionally joined the conspiracy charged. The court further clarified that the jury could convict even if it found Westmoreland guilty of two conspiracies, as long as it found beyond a reasonable doubt that he was guilty of the single, overall conspiracy charged in the indictment. The court directed the jury to consider the nature of the agreement, and to convict only if the government proved an agreement on an overall goal. In deciding whether a single conspiracy existed, the court instructed that all the members need not know each other, and that members need not know what roles other members played. Different members could join at different times, there could be subgroups operating in different places, and the criminal acts could be committed over a long period of time. There could even be several agreements, as long as these agreements were not separate from the conspiracy "but reach[ed] for the common unlawful purpose of the conspiracy charged." The court directed that the controlling factor was whether the government proved an overall agreement on a common goal. Westmoreland objected to these instructions at trial as being argumentative. He offered an alternative instruction, which he argued was succinct, direct, and not confusing.

As for the "use and carry" count, the court instructed the jury that it could convict if Westmoreland was guilty of the marijuana attempt count or the crack distribution count and he "knowingly used or carried the firearm ... in relation to" one or both of those two drug counts. Three months after the jury convicted Westmoreland on all counts, he filed a motion for discovery, alleging that the government was selectively prosecuting African Americans for crack cocaine related crimes. Westmoreland pointed to three other cases in the Northern District of Illinois involving indictments of African Americans for crack cocaine related offenses as the sole basis for his charge of selective prosecution. He also challenged his sentence on the grounds that the harsher penalties for crack cocaine violated various constitutional provisions. The district court rejected all of these arguments.

II.

On appeal, Westmoreland challenges the conspiracy instructions as confusing and in conflict with the law. He also contends that the evidence offered at trial was insufficient to prove that he used a gun in relation to a drug trafficking offense because receiving a gun in payment for drugs is not conduct covered by the statute. Westmoreland also claims that he made a prima facie showing that his indictment was based on selective prosecution and that he should therefore have been allowed to conduct discovery in support of this claim. Finally, he contends that the sentencing disparity between crack cocaine crimes and powder cocaine crimes violates due process, equal protection, and the prohibition against cruel and unusual punishment. As we will show, only one of these contentions has any merit.

A.

We turn first to the conspiracy instruction. The government argues that the defendant waived all objections to this instruction, except the claim that it is argumentative, by not raising these objections to the trial court. The defendant, in turn, claims that he preserved the objections by tendering his own instruction, which he characterized to the trial court as being succinct, direct and without confusion. He argues now that that characterization implied that the government's instruction was confusing, not direct and not succinct. We think this is a close case for waiver. When presenting his express objections to the government's instructions, Westmoreland stated only that it "number one, is not necessary; and, number two is argumentative." He failed to state that the government's instruction was an incorrect or confusing statement of the law. By merely claiming that his own instruction was succinct, direct and not confusing, he was not necessarily impugning the correctness of the government's instruction. The better course would have been for him to make these specific objections to the trial court in relation to the government's instruction, instead of making general statements in support of his own proffered instruction. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (the court reviews for plain error only any alleged defects not timely brought to the attention of the district court); Stachniak v. Hayes, 989 F.2d 914, 920 (7th Cir.1993) ("if a party fails to make a specific, timely jury instruction objection during trial, an argument regarding that jury instruction is deemed to be waived for [the] purposes of appeal.").

But whether Westmoreland waived these objections or not, we find that he loses on the merits because the instructions are neither confusing nor incorrect. When we review jury instructions, we construe them in their entirety and not in artificial isolation. Stachniak, 989 F.2d at 920 (citing New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1483 (7th Cir.1990)). When we view the instructions as a whole, we find that they correctly state the law. In fact, most of the language to which defendant objects has been approved by this Court in prior decisions. See United States v. Blanding, 53 F.3d 773, 776 n. 2 (and accompanying text) (7th Cir.1995); United States v. Gonzalez, 933 F.2d 417, 438 (7th Cir.1991); United States v. Paiz, 905 F.2d 1014, 1020 n. 4 (7th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). Because Westmoreland raised the issue of separate conspiracies, it was appropriate for the court to instruct the jury on how to distinguish between a single conspiracy and multiple conspiracies, and under what circumstances the jury could convict the defendant even if it found he was part of more than one conspiracy.

B.

Approximately three months after trial, Westmoreland moved for discovery on the issue of selective prosecution. Westmoreland points to three other cases in the United States District Court for the Northern District of Illinois where African American defendants have been indicted on charges relating to crack cocaine. In an argument that borders on the frivolous, he asks us to consider these cases prima facie evidence of selective prosecution, and to allow him to conduct further discovery. We agree with the government that Westmoreland waived his selective prosecution claim by not raising it before trial. Se...