United States v. Claybrooks

• Decision Date: 05 September 2013
• Docket Number: No. 12–1413.,12–1413.
• Citation: 729 F.3d 699
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eldred C. CLAYBROOKS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

729 F.3d 699

UNITED STATES of America, Plaintiff–Appellee,

v.Eldred C. CLAYBROOKS, Defendant–Appellant.

No. 12–1413.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2013.

Decided Sept. 5, 2013.

Meghan Morrissey Stack, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Starr M. Rayford, Attorney, Hinshaw & Culbertson, Chicago, IL, for Defendant–Appellant.

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

While investigating a large drug distribution conspiracy involving Robert Atkins, federal agents also uncovered a smaller operation involving Atkins and his friend, Eldred Claybrooks. Claybrooks was eventually charged with two drug-related offenses arising from his relationship with Atkins including one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Following a trial in which Atkins served as the government's key witness, Claybrooks was convicted and sentenced to 20 years' imprisonment.

On appeal, Claybrooks argues that the government failed to present enough evidence for a reasonable jury to find him guilty of conspiracy beyond a reasonable doubt. We do not view the evidence the same way. Both Atkins's testimony and recordings of conversations between Atkins and Claybrooks supplied enough evidence for a reasonable jury to find that the two men knowingly agreed to distribute cocaine. Claybrooks also challenges his sentence on the basis that the district court did not make a determination regarding the amount of drugs involved in the conspiracy. On this issue, we agree. After reviewing the sentencing transcript, we conclude that the district court did not make a finding concerning the amount of drugs involved in Claybrooks's offense. Therefore, we affirm Claybrooks's conviction but vacate his sentence and remand for resentencing.

I. BACKGROUND

In 2006, FBI agents began looking into various drug distribution networks in northeastern Illinois. Investigators soon focused their attention on Robert Atkins, a large-scale cocaine distributor in the area. To get a sense of Atkins's operations, FBI agents obtained court orders for wiretaps on two of his phones and began recording his telephone conversations.

Over the course of their investigation, FBI agents intercepted several calls between Atkins and Eldred Claybrooks. In the recorded conversations, Atkins and Claybrooks discussed the details of various cocaine transactions. In one May 2007 phone call, Claybrooks brokered the sale of two kilograms of cocaine between Atkins and Claybrooks's cousin.

The two men also discussed customer relations problems that Claybrooks encounteredwhen distributing cocaine he received from Atkins. During one series of calls in June 2007, Claybrooks complained to Atkins about the quality of some cocaine that he had recently purchased. Claybrooks told Atkins that he wanted to return the cocaine in exchange for a refund or another kilogram of better quality. When Atkins asked whether the kilogram was largely intact (and therefore suitable for return to Atkins's supplier), Claybrooks said no. Claybrooks stated that his customers had removed nine ounces from the kilogram to test its strength, and, disappointed with the results, had returned the remainder to Claybrooks. This was a problem for Atkins. With so much of the original kilogram now missing, Atkins's supplier would not exchange it for another kilogram. Atkins then reminded Claybrooks about the proper way to have his customers test a kilogram of cocaine, which was to remove an ounce or two from the corner while keeping the packaging intact:

I told you a million times ... we went over this s—t ... as long as it's wrapped up, cut that corner[,] get you a zip out or two, do what'ch you gotta do. If it ain't right, stick that s—t back in that corner. Put some tape on that corner and bring that s—t back.

A grand jury eventually indicted Claybrooks on two drug-related felonies as a result of his dealings with Atkins. Claybrooks was charged with one count of conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and one count of distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1).

At trial, the government relied heavily on testimony from Atkins to establish Claybrooks's guilt. Atkins testified that he began supplying Claybrooks with cocaine in 2001. According to Atkins, over the next seven years he regularly distributed cocaine to Claybrooks in quantities ranging from four and a half ounces to several kilograms. Atkins typically provided the drugs to Claybrooks on consignment. Under this arrangement, Claybrooks would receive the cocaine from Atkins, resell it, and then pay Atkins using the proceeds. If, for some reason, Claybrooks could not resell the cocaine, he could return it to Atkins. In total, Atkins estimated that he distributed between twenty and thirty kilograms of cocaine to Claybrooks over the course of their relationship. Nor was their relationship entirely one-sided: Atkins also stated that Claybrooks supplied him with kilograms of cocaine on three or four occasions.

Atkins also testified that Claybrooks occasionally brokered cocaine sales between Atkins and Claybrooks's customers. On occasion, Atkins told jurors, Claybrooks would identify a customer that wanted to purchase cocaine from Atkins. Claybrooks would collect the purchase money from his customer on Atkins's behalf and then deliver the money to Atkins. Once Atkins had the money, he would then give Claybrooks a kilogram of cocaine for delivery to his customer. In one such transaction, Claybrooks told Atkins about a customer in Bloomingdale, Illinois, who wanted to buy three to four kilograms of cocaine. Atkins supplied Claybrooks with the requested amount of cocaine and had him deliver it to the customer.

Atkins stated that his association with Claybrooks ended in August 2008. Around that time, Atkins testified, he provided Claybrooks with $60,000 to purchase two kilograms of cocaine on Atkins's behalf. According to Atkins, Claybrooks took the money but never delivered the cocaine. Atkins tried to resolve the situationbut Claybrooks kept avoiding him and would not return his phone calls.

Atkins also testified about certain recorded telephone conversations he had with Claybrooks. After a portion of the conversation was played for the jury, Atkins would testify regarding the meaning of the coded language used and provide context about the matters discussed. In this way, Atkins described a May 2007 conversation in which Claybrooks brokered a cocaine deal between Claybrooks's cousin and Atkins. Atkins also informed the jury of the details surrounding some calls in June 2007 regarding Claybrooks's customer relations issues.

At the conclusion of the trial, the jury found Claybrooks guilty of both the conspiracy charge and the distribution charge. In addition to the general guilt determination, the jury also made special findings regarding the amount of drugs involved in each offense. On the verdict form, the jury was asked to select which of three possible quantity ranges correctly characterized the amount of cocaine involved in each offense: (1) a measurable amount but less than 500 grams; (2) at least 500 grams, but fewer than five kilograms; or (3) five kilograms or more. The jury found that both counts involved at least 500 grams but fewer than five kilograms of mixtures containing cocaine.

The United States Probation Office prepared a Presentence Investigation Report (“PSR”) on Claybrooks following his conviction. In the PSR, the Probation Office concluded that Claybrooks should be held responsible for at least seven kilograms of cocaine. The Probation Office based its drug quantity finding on the following evidence: (1) Atkins's testimony and wiretap recordings suggesting that Atkins provided Claybrooks with one kilogram of cocaine in June 2007; (2) Atkins's testimony that Claybrooks supplied him with a kilogram of cocaine on three occasions; and (3) Atkins's testimony that he provided Claybrooks with three kilograms of cocaine for delivery to a customer in Bloomingdale. On this last point, the PSR contained a notation that the transaction was corroborated by proffer statements from Claybrooks's co-defendant, Robert Wasp, in which Wasp stated that he delivered three kilograms of cocaine to Claybrooks on Atkins's behalf. Based on its drug quantity finding and Claybrooks's prior felony drug conviction, the Probation Office concluded that he was subject to a mandatory minimum sentence of 20 years. See21 U.S.C. § 841(b)(1)(A).

Claybrooks's sentencing hearing took place on February 14, 2012. At the hearing, the government argued that Claybrooks was responsible for at least 20 kilograms of cocaine based on Atkins's testimony that he supplied between 20 and 30 kilograms to Claybrooks over the course of their relationship. In response, Claybrooks contended that Atkins's estimate was too unreliable. Instead, Claybrooks asked the court to adopt the jury's finding as to the quantity of cocaine involved in his offenses, between 500 grams and 5 kilograms, an amount that would set Claybrooks's mandatory minimum sentence at 10 years. See21 U.S.C. § 841(b)(1)(B).

In the end, the district court declined to adopt the drug quantities advanced by either Claybrooks or the government. The court noted that Atkins's 20–30 kilogram approximation of the amount of drugs he dealt to Claybrooks was “too indefinite for me to even find that it satisfies preponderance.” The court was uncomfortable with accepting Atkins's estimate of the total amount of drugs involved in light of certain ambiguities in his testimony:

So we've got [Atkins] talking about a relationship that started with dealing 4.5–ounce quantities and over time became a relationship where there were kilos transferred, but he...