U.S. v. Whaley, No. 85-1017

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS and FLAUM, Circuit Judges, and GRANT; GRANT
Citation830 F.2d 1469
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerry WHALEY, Defendant-Appellant.
Docket NumberNo. 85-1017
Decision Date06 October 1987

Page 1469

830 F.2d 1469
UNITED STATES of America, Plaintiff-Appellee,
v.
Jerry WHALEY, Defendant-Appellant.
No. 85-1017.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 12, 1986.
Decided Oct. 6, 1987.

Page 1471

Allan L. Yackey, Indianapolis, Ind., for defendant-appellant.

John A. Jancy, Asst. U.S. Atty., John Daniel Tinder, U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before CUMMINGS and FLAUM, Circuit Judges, and GRANT, Senior District Judge. *

GRANT, Senior District Judge.

Defendant-Appellant Jerry Whaley was indicted on one count of conspiracy to possess with intent to distribute pharmaceutical drugs. After the first trial concluded with a hung jury, the court declared a mistrial. The government filed a superseding indictment charging Whaley with six substantive acts of distribution or possession with intent to distribute controlled substances, in addition to the original conspiracy charge. The jury in the second trial found Whaley guilty on all charges. Whaley now appeals his conviction, 1 raising issues of the sufficiency of evidence of conspiracy and the vindictive nature of the superseding indictment. For the reasons stated below, we affirm the conviction.

I

The investigation of the illegal diversion of pharmaceutical drugs from an Indianapolis pharmacy uncovered a conspiracy in which the appellant Jerry Whaley was involved. In 1981, the pharmacist-owner of Midtown Pharmacy, Sterling Litiskas, began selling pharmaceutical drugs (primarily the methamphetamine Desoxyn, also known as "speed" and "bird") illegally. One of his three major customers, Norma Jean Crabtree, distributed the drugs through her family members and sold them directly to the appellant. Whaley purchased drugs, in increasing quantities, from Crabtree and her family between 1982 and 1984 and sold them at parties, frequently with the Crabtrees, during that period.

On May 18, 1984, the grand jury returned an indictment against twenty defendants for drug-related offenses in connection with the illegal diversion of pharmaceutical drugs from the Midtown Pharmacy. Pharmacist Litiskas had previously entered into a preindictment plea agreement with the United States, and nineteen of the twenty indicted by the grand jury entered into pretrial plea agreements. Defendant Jerry Whaley, indicted on one count of conspiracy to possess with intent to distribute pharmaceutical drugs, went to trial on August 28, 1984.

Because the jury was unable to reach a verdict, the court declared a mistrial on September 4, 1984. The government filed a superseding indictment on September 27, 1984, that included the original conspiracy charge of the first indictment (a violation of 21 U.S.C. Sec. 846), and added six substantive acts of distribution or possession with intent to distribute controlled substances in violation of 21 U.S.C. Sec. 841(a)(1). 2 Whaley filed no motion challenging the superseding indictment prior to trial and raised no objection to the conspiracy charge or added counts at trial or at the close of the evidence.

Whaley's second jury trial commenced on November 13, 1984. Government witnesses testified to the defendant's purchases

Page 1472

and sales of Desoxyn and other pharmaceutical drugs. Sterling Litiskas admitted that he himself was the source of most of the controlled substances in question, and other witnesses admitted to their personal involvement with Whaley in purchasing, distributing or taking the drugs. Norma Jean Crabtree and other members of her family stated that Whaley purchased Desoxyn and other drugs from them between 1982 and 1984. Daughter Vickie Crabtree testified that she was often present for Whaley's purchases, that she helped him prepare Desoxyn for sale, and both used and sold Desoxyn provided by Whaley. Other witnesses who obtained drugs from Whaley testified that the drugs were usually distributed for sale by Whaley, the Crabtree family and others from rented hotel rooms in Indianapolis. Specific incidents of distribution by Whaley formed the basis of counts two through six of the indictment; count seven alleged Whaley's purchase of twenty Desoxyn pills in January of 1984 from Norma Jean Crabtree after her release from prison.

The defendant's only two witnesses were his sister and mother, both of whom testified that they saw Jerry Whaley often, and that they had never seen him in possession of drugs.

The defendant was found guilty of all charges on November 19, 1984, and was sentenced to a term of imprisomnent of fifteen years on the conspiracy count; two years for each of the six substantive counts, to run concurrently; and concurrent special parole terms of two years on each of the substantive counts.

In this appeal, Whaley challenges the sufficiency of the evidence presented to support his conviction on the conspiracy count and seeks reversal of the convictions on counts two through seven on the basis of prosecutorial vindictiveness.

II

Appellant first contends that the evidence presented at trial showed either no conspiracy or many tiny conspiracies, but was insufficient to support a finding of one overall conspiracy. According to Whaley, the record reflected that he would purchase pharmaceutical drugs from any source and would sell to any takers. He insists that there was no showing that he was a "major buyer" or that he had made agreements concerning distribution of controlled substances. He further asserts that, because the pharmacist Litiskas (the "hub" of the conspiracy) wanted nothing to do with him, Whaley could not have been a part of that conspiracy.

Appellate review of the sufficiency of the evidence to support a criminal conviction requires this court to determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Draiman, 784 F.2d 248, 251 (7th Cir.1986).

This appellate court will not reconsider the evidence or assess the credibility of the witnesses. 3 Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985); United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984). We give deference to the trial jury's weighing of the evidence and its drawing of reasonable inferences. United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984); United States v.

Page 1473

Niemiec, 611 F.2d 1207, 1211 (7th Cir.1980). "Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Moore, 764 F.2d at 478 (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 (1971)). To succeed in his challenge of the sufficiency of the evidence, therefore, the appellant has a heavy burden. United States v. Peters, 791 F.2d 1270, 1290 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986).

Jerry Whaley was charged with conspiring to distribute controlled substances in violation of 21 U.S.C. Sec. 846. This court has defined a conspiracy as a "combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, a criminal act." United States v. Herrera, 757 F.2d 144, 149 (7th Cir.1985) (quoting United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983)). The nature of a conspiracy is such that its existence and the involvement of the co-conspirators in it must often be proved by circumstantial evidence. United States v. Redwine, 715 F.2d at 320. "The government need not establish that there existed a formal agreement to conspire; circumstantial evidence and reasonable inferences drawn therefrom concerning the relationship of the parties, their overt acts, and the totality of their conduct may serve as proof." Id., citing United States v. Kaczmarek, 490 F.2d 1031, 1035 (7th Cir.1974); United States v. Cogwell, 486 F.2d 823 (7th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1975, 40 L.Ed.2d 310 (1974).

The government must prove that the defendant's relationship with other conspirators was more than a mere association. United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985). It must present "evidence to support the inference that the defendant in some way joined and participated in the conspiratorial scheme." United States v. Garcia, 562 F.2d 411, 414 (7th Cir.1977).

Viewed in the light most favorable to the government, the evidence that Whaley was part of a conspiracy emanating from Midtown Pharmacy to distribute pharmaceutical drugs was overwhelming. The evidence showed that Litiskas's pharmacy in Indianapolis was the one source of controlled substances consistently used by the conspirators. It also revealed that the conspirators agreed, either explicitly or by their common conduct, to distribute primarily Desoxyn and some Preludin, and even standardized the price for the drugs. They followed the same method of distribution by renting rooms in hotels and motels from which their sales were conducted. And, after leaching out of each pill the methamphetamine desired by drug abusers, they routinely used yellow food coloring to create the appearance of an unused pill for resale. 4 These recurring patterns of illegal activity are strong circumstantial evidence of a conspiratorial agreement, and were certainly sufficient for a reasonable jury to conclude that they reflected the common purpose and plan of a conspiracy.

The evidence was also ample to show that the appellant, far from being a casual participant in this scheme, actively participated in it. "Once the Government proves the existence of a conspiracy, the...

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107 practice notes
  • U.S. v. Marren, Nos. 88-2997
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 29 d3 Novembro d3 1989
    ...conspiracy, it need only offer 'slight evidence' to prove that an individual was a member of the conspiracy." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987) (quoting United States v. Castillo, 814 F.2d 351, 353 (7th As discussed earlier, our standard of review for a claim of in......
  • U.S. v. Briscoe, Nos. 87-2553
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 26 d1 Fevereiro d1 1990
    ...from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987) (quoting United States v. Moore, 764 F.2d 476, 478 (7th Page 1505 Cir.1985)), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738......
  • U.S. v. Hooks, No. 87-1007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 d3 Junho d3 1988
    ...the Government need only offer 'slight evidence' to prove that an individual was a member of the conspiracy." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), quoting United States v. Castillo, 814 F.2d 351, 353 (7th Hooks contends that the acts and conversations attributed to H......
  • U.S. v. Paiz, Nos. 89-1264
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 21 d4 Junho d4 1990
    ...by their joint efforts, a criminal act," United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983); see also United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Herrera, 757 F.2d 144, 149 (7th Cir......
  • Request a trial to view additional results
107 cases
  • U.S. v. Marren, Nos. 88-2997
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 29 d3 Novembro d3 1989
    ...conspiracy, it need only offer 'slight evidence' to prove that an individual was a member of the conspiracy." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987) (quoting United States v. Castillo, 814 F.2d 351, 353 (7th As discussed earlier, our standard of review for a claim of in......
  • U.S. v. Briscoe, Nos. 87-2553
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 26 d1 Fevereiro d1 1990
    ...from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987) (quoting United States v. Moore, 764 F.2d 476, 478 (7th Page 1505 Cir.1985)), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738......
  • U.S. v. Hooks, No. 87-1007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 d3 Junho d3 1988
    ...the Government need only offer 'slight evidence' to prove that an individual was a member of the conspiracy." United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), quoting United States v. Castillo, 814 F.2d 351, 353 (7th Hooks contends that the acts and conversations attributed to H......
  • U.S. v. Paiz, Nos. 89-1264
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 21 d4 Junho d4 1990
    ...by their joint efforts, a criminal act," United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983); see also United States v. Whaley, 830 F.2d 1469, 1473 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988); United States v. Herrera, 757 F.2d 144, 149 (7th Cir......
  • Request a trial to view additional results

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