U.S. v. Wilson

• Decision Date: 02 August 1994
• Docket Number: No. 94-1148,94-1148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Myro L. WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 510

31 F.3d 510

UNITED STATES of America, Plaintiff-Appellee, v. Myro L. WILSON, Defendant-Appellant.

No. 94-1148.

United States Court of Appeals, Seventh Circuit.

Argued July 6, 1994.

Decided Aug. 2, 1994.

Edith C. Harris (argued), Office of U.S. Atty., Springfield, IL, for plaintiff-appellee.

Jon G. Noll (argued), Springfield, IL, for defendant-appellant.

Before BAUER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Myro L. Wilson was convicted by a jury of three counts of distribution of cocaine base in violation of 21 U.S.C. Sec. 841(a)(1), and was sentenced to 63 months of imprisonment. He appeals, challenging the sufficiency of the evidence and the admission of evidence of other misconduct. See Fed.R.Evid. 404(b). Wilson also appeals his sentence, contending that the district court improperly considered an uncharged drug sale as "relevant conduct" under U.S.S.G. Sec. 1B1.3(a)(2) in calculating his base offense level. We affirm.

I. Background

In September of 1991, the police became aware of Wilson's involvement in cocaine trafficking while investigating the activities of drug dealer, Hernando Wilson ("Hernando"), who is Wilson's uncle. On September 16, 1991, Rhea Taylor, a confidential informant, told Special Agent Benjamin O'Neal that he could purchase drugs from Wilson or Darian Wilson ("Darian"), who is also a nephew of Hernando's. Acting as a go-between for Agent O'Neal and under the surveillance of O'Neal as well as other law enforcement officers parked nearby, Taylor went to Darian's residence, but was told by Darian to go to 56 Brandon to make the purchase. At 56 Brandon, which was a few blocks away, Taylor was greeted by Wilson who resided there. While waiting for Darian to arrive, Wilson asked where the buyer was waiting and whether the buyer had a scale with him. Wilson also showed Taylor the cocaine. Shortly after, Darian joined them and discussed the price with Taylor, and the three of them talked about diluting the cocaine with baking soda. Taylor was given half an ounce of cocaine. He took the cocaine to Agent O'Neal, who was waiting in a parked car, and returned later with the purchase money. The cocaine weighed 13.6 grams. The conversations were taped. Wilson was not charged with this drug sale.

Four days later, Taylor went to 56 Brandon to make another drug purchase. Wilson stated that he needed to go get the drugs and left the residence. When he returned, he gave one ounce of cocaine to Taylor. Darian was also present at some point during the transaction. As with the previous deal, Taylor took the cocaine to Agent O'Neal for him to test and weigh the drugs. Taylor then returned with $1,800 to the apartment, where he delivered the money to Hernando's mother. The conversations for this transaction were also taped. The amount of cocaine from this purchase was 28.2 grams.

On August 25, 1992, another confidential informant, Jeff Washington, went to 56 Brandon to try to purchase crack cocaine from Hernando. Although Hernando's brother, Flin Wilson, asked Washington to lift up his shirt for Flin to ascertain whether Washington was wearing a transmitting device, the wire transmitter was not observed. Wilson was present in the apartment, and stated, "I've dealt with him before." As with the September 20, 1991 transaction, Wilson left the residence and returned a short time later with the drugs. Because Washington had expressed his desire to purchase an additional amount of crack cocaine while Wilson was gone, Wilson again left the residence to retrieve the additional amount. The three "rocks" of crack cocaine sold contained 2.0 grams of cocaine base.

On September 12, 1992, Stephanie Wilson ("Stephanie"), a confidential informant, also arranged to buy cocaine from Hernando. Stephanie, who was arrested on drug charges, had entered into a cooperation agreement with the government to help convict Hernando. At Hernando's direction, Stephanie met with Wilson near 56 Brandon and received ten "rocks" of crack cocaine, which contained 8.8 grams of cocaine base. Stephanie then paid Hernando two days later for the delivery made by Wilson. The conversation between Stephanie and Wilson was not taped.

At trial, the tape recordings of the September 16, 1991, September 20, 1991, and August 25, 1992 transactions were introduced into evidence. Both of Wilson's uncles, Flin and Hernando, testified against Wilson pursuant to their plea agreements with the government. Hernando admitted directing Wilson to give Stephanie ten "bops" of crack cocaine on September 12, 1992. He also admitted lying to a special agent about his identity. In addition, he testified that he had seen Wilson in possession of cocaine on at least ten occasions. Counsel did not object to the admission of this statement.

All three informants and Agent O'Neal testified as to their respective dealings with Wilson. Counsel objected to the admission of Agent O'Neal's testimony, and later Taylor's testimony, concerning the September 16, 1991 transaction because Wilson was not charged with that transaction. The trial court overruled the objection, finding that the evidence was offered to show "opportunity, knowledge, [and] plan" under Rule 404(b). The court also found that the probative value of the evidence was not outweighed by the prejudicial effect. No limiting instruction was given to the jury as to the intended purpose of the evidence. Counsel also objected to Washington's testimony that he was first introduced to Wilson by Flin for a drug deal at 56 Brandon sometime between January and March of 1992. The trial court overruled the objection based on the government's argument that the evidence was offered for purposes of identification. Wilson was convicted of all three distribution counts.

II. Analysis

A. Sufficiency of the Evidence

Wilson challenges the sufficiency of the evidence to sustain his convictions, contending essentially that the government's witnesses were all inherently unreliable witnesses because they were themselves drug dealers, drug addicts, convicted felons, paid informants, and cooperating defendants, and because their testimony was peppered with inconsistencies.

When reviewing for sufficiency of the evidence, we consider the evidence and accompanying inferences in the light most favorable to the government and will reverse only if there is no evidence from which the jury could find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979); United States v. Dortch, 5 F.3d 1056, 1065 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1077, 127 L.Ed.2d 394 (1994). Unless the evidence is "contrary to the laws of nature ... or is so improbable on its face that no reasonable factfinder could accept it," United States v. Saunders, 973 F.2d 1354, 1358 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1026, 122 L.Ed.2d 171 (1993); see also United States v. Lozoya-Morales, 931 F.2d 1216, 1217 (7th Cir.1991); United States v. Mejia, 909 F.2d 242, 245 (7th Cir.1990), we will not reweigh the evidence or evaluate the credibility of witnesses. Dortch, 5 F.3d at 1065; Mejia, 909 F.2d at 245 ("Credibility is for the jury, not this Court, to determine."). This is true even if the evidence is "totally uncorroborated and comes from an admitted liar, convicted felon, large-scale drug dealing, paid government informant." United States v. Davis, 15 F.3d 1393, 1398 (7th Cir.1994) (citing United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir.1989)).

Here, Wilson's convictions were supported by ample evidence, which was not inherently unbelievable or improbable. The first two charged transactions were supported by not only the informants' testimony, but also the tape recordings of the transactions which corroborated the informants' testimony. The third charged transaction was supported by both the informant's testimony and the admission of Hernando Wilson. Additionally, all three transactions were corroborated by the cocaine delivered to the authorities by the informants.

It is true that the testimony of the government witnesses contained some inconsistencies. For instance, Taylor testified that he had always been truthful to Agent O'Neal, but O'Neal stated that Taylor had once lied to him during the investigation of another case. Similarly, Taylor's testimony as to when he reviewed the tape recordings was contradicted by that of a government agent. Also, Flin Wilson did not testify consistently about whether he was intoxicated the day Washington came to buy the drugs and whether he was looking for drugs or wires when he asked Washington to lift his shirt. Nor was Hernando's testimony as to his method of transporting cocaine entirely consistent with the testimony of other government witnesses. However, all of the inconsistencies were tangential to the core events surrounding the crime. See Saunders, 973 F.2d at 1359. More importantly, "mere inconsistencies in the witnesses' testimony do not render it legally incredible." Lozoya-Morales, 931 F.2d at 1218 (citing United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989)). Thus, the jury was entitled to believe the testimony of the government witnesses in this case, and we will not disturb the jury's resolution of whatever inconsistencies or ambiguities exist in the testimony. See United States v. Berardi, 675 F.2d 894, 904 (7th Cir.1982).

B. Rule 404(b)

Wilson also argues that the trial judge improperly admitted evidence of earlier, uncharged instances of drug sales and possession. Specifically, Wilson objected to the admission of evidence concerning the September 16, 1991 transaction and Washington's statement that he had met Wilson prior to the August 25, 1992 transaction during a drug deal.

We review the district court's decision to admit the disputed evidence for an abuse of discretion. United States v. Evans, 27 F.3d 1219, 1232 (7th Cir.1994); United States v. Betts, 16 F.3d 748, 756 (7th...