United States v. Conley

• Decision Date: 14 November 2017
• Docket Number: No. 15-3442,15-3442
• Citation: 875 F.3d 391
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tracy CONLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

875 F.3d 391

UNITED STATES of America, Plaintiff-Appellee,

v.Tracy CONLEY, Defendant-Appellant.

No. 15-3442

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2017

Decided November 14, 2017

Rehearing En Banc Denied January 17, 2018^*

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

Thomas L. Shriner, Jr., Attorney, Foley & Lardner LLP, Milwaukee, WI, Stephen Bedell, Jason P. Britt, Attorneys, Foley & Lardner LLP, Chicago, IL, for Defendant–Appellant.

Before Manion, Rovner, and Hamilton, Circuit Judges.

Rovner, Circuit Judge.

Tracy Conley was ensnared in a now familiar government set up in which a government actor, pretending to be a criminal, presents the defendant with an opportunity to be part of a robbery of an illegal drug stash house. The stash house is fictional, of course, and so the government decides which and what quantity of drugs it will have (in this case, fifty kilograms of cocaine) and how high or low the barriers to the crime will be (in this case it was allegedly protected only by two armed and one unarmed guards). Conley took the bait and ended up with a sentence of 180 months' imprisonment on drug distribution and weapons charges. He moved the district court for acquittal or a new trial and when that was denied, appealed the decision to this court. We affirm.

I.

Conley arrived at his workplace on November 1, 2011, only to find that he could not work because of a malfunctioning piece of machinery. He started to drive back to his girlfriend's house, but in a second stroke of bad luck, found that he did not have enough gas or money to purchase gas for the trip. While stopped at the gas station, Conley encountered two acquaintances, David Flowers (David) and Anwar Trapp (Trapp).¹ According to the evidence taken in the light most favorable to the government, as we must after conviction by a jury ( United States v. Longstreet , 567 F.3d 911, 918 (7th Cir. 2009) ), David and Trapp picked up Conley and brought him back to Anthony Adams' basement to discuss a plan to rob an illegal drug stash house, a plan orchestrated by Myreon Flowers (Myreon).

Unbeknownst to Conley, Myreon, or anyone else in the basement meeting, there was no robbery to be had. It was, instead, a sting set up by the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Earlier, on October 25, 26, and 31, an FBI cooperating source and an ATF undercover agent met with Myreon to discuss and plan a stash house robbery. The undercover agent, posing as the disgruntled employee of drug kingpin, gave Myreon the tip that a drug-king boss had a stash house where there would be at least fifty kilograms of cocaine guarded by one unarmed and two armed men. Myreon developed a plan involving at least three armed robbers who would tie up the stash house guards and steal the cocaine.

On October 31, Myreon met with his brother, David, and his cousin, Trapp, at a friend's apartment and told them about the opportunity to rob the stash house. The three men discussed recruiting Adams because he had a gun. The next day, November 1, Trapp, David, and Myreon found Adams and discussed plans with him in the basement of his house. Cell phone records confirmed calls between Adams and David at this time.

Trapp testified that in that basement meeting Myreon explained to Adams that "he had this one white guy that got a lick [robbery] for them to go on for fifty kilos of coke." A. 0202.² After some discussion of the robbery plan and the need for more participants, Adams said that he had someone in mind who could help, and he, David and Trapp left Adams' house to pick up the defendant who was a few blocks away.³ Prior to this point, Conley was not involved in the conspiracy.

According to Trapp, he, Myreon, David, Adams, and Conley then reunited, again in Adams' basement, to discuss the robbery. Conley, of course, had a different version of the story—one that involved smoking marijuana and discussing some work gutting a house. But once again, on a motion for acquittal or new trial, we take the facts in the light most favorable to the government, which in this case come largely from the testimony of co-conspirator Trapp and corroborated in many instances by other evidence and testimony. At this final basement meeting, Myreon passed along what he had learned from "the white guy"—that the fifty kilos were being stored in a garage guarded by three Mexicans, two of whom had guns. Trapp understood that Adams and Conley would be the ones "that actually do the robbery." A. 0208. The group decided that they needed one more robber and one more gun to carry out their plan.

In response to their questions, Myreon told Adams and Conley that they would get two to three kilograms of cocaine apiece for assisting with the robbery. Trapp also testified that Adams and Conley wanted to know how Myreon knew the white guy, whether he could be trusted, and what was going to happen to him after the robbery—that is whether "we gonna leave him alone or we gon [sic] pop [shoot] him." A. 0210. Myreon said that nothing would happen to "the white guy." The group then agreed to meet at 6317 S. Mozart in a few hours before dispersing.

Trapp testified that following that meeting, he and David dropped Conley off where they had picked him up. Trapp then called his cousin, Dwayne Jones, and asked to meet him at 6317 S. Mozart because "it [was] about to go down." A. 0212. Trapp and Jones both testified that they then met with David and Myreon at that address and that the four of them (Conley was not present) discussed the robbery, including the fact that others would also be involved.

Based on their plan, the four men (not including Conley) drove to a nearby Lowe's hardware store to procure supplies for the robbery, including a walkie-talkie set to communicate with each other during the robbery, and blue latex gloves to ensure that they did not leave fingerprints behind. Jones testified that during the drive back to Mozart Street, he and Myreon had a disagreement about the fact that the latter had told the men who would actually be executing the robbing that they would each only get two kilograms of cocaine. Jones did not think that was fair as those were the three individuals who would be assuming the greatest risk by going into the garage to get the drugs. Myreon, however, said that the men had already agreed to the amount.

The undercover FBI agent arrived at 6317 S. Mozart at around 1:45 pm and recorded the conversations. From approximately 1:45 until 2:30 p.m., Myreon, David, Trapp, Jones and the agent discussed plans for the robbery while waiting for Conley, Adams, and a third man, Rudy Space, to arrive. As Myreon explained to the agent, earlier that morning he had met with these individuals who were going to actually execute the robbery, and had discussed the possibility of having to shoot the armed guards. According to the recording, David obtained a gun from inside the house and Trapp hid it inside of Myreon's white work van.

Eventually, Conley, Adams, and Space arrived at the house on Mozart Street. Adams retrieved an item (the government surmises that it was likely a gun) out of his trunk and then followed Conley and Space into the white work truck. Photographs of the interior of the van showed that it was full of tools and equipment with little space for three adult men to sit.

Trapp testified, and surveillance data confirmed, that after the three men entered the white work van, Trapp obtained a silver gun from a man named Woody. Trapp wrapped the gun in his sweatshirt and handed it to Myreon who was sitting in the driver's seat of the white work van. Myreon took the gun and returned the sweatshirt. A photograph of the toolbox in which the gun was later deposited showed that the silver gun ended up at the bottom of the box, beneath two other guns, neither of which was silver. The government uses this as evidence that someone (but we do not know who) moved the guns around while they were in the back of the work van, and surmises therefore that anyone in the cramped van would have seen and thus had knowledge of the guns.

Myreon drove the van with the undercover agent, Adams, Space, and Conley to meet up with others at a gas station and then drove to a nearby forest preserve where Myreon announced that Adams, Conley, and Space would get out of the work van and into another van to head to the location of the stash house. The surveillance video showed Adams, Conley, and Space exiting the work van and immediately entering the undercover agents' van.

Almost immediately thereafter, the agent gave the arrest signal and Conley and the other co-conspirators were taken into custody. As the arresting officer approached Conley, the latter removed the blue surgical gloves that he had been wearing and discarded them and then started crawling away from the van.

After the arrests, law enforcement officers found the walkie-talkies and a toolbox containing three loaded guns. Conley's fingerprints were not found on any of the guns or the toolbox. During Conley's post-arrest interview he admitted that he went to the house on Mozart with Adams and Space, but stated that he had put on the blue surgical gloves as a joke and that they were driven to a forest preserve where someone handed him a tool case. The interviewing officer stated that Conley got angry and agitated when questioned about the toolbox.

The government charged Conley with (1) conspiracy to possess with intent to distribute more than five kilograms of a controlled substance, in violation of 21 U.S.C. § 841(a)(1) ; (2) attempt of the latter; (3) possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924 (c)(1)(A) ; and (4) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). A jury found Conley guilty on all counts. Conley moved for post-trial relief seeking a judgment of...