United States v. Freeman, 07 CR 843
| Decision Date | 13 May 2013 |
| Docket Number | No. 07 CR 843,07 CR 843 |
| Parties | UNITED STATES, Plaintiff, v. RONDELL FREEMAN, a/k/a Nightfall, a/k/a Fall, BRIAN WILBOURN, a/k/a Stay High, a/k/a "3", DANIEL HILL, a/ka Little Burling, a/k/a Little B, and ADAM SANDERS, a/k/a Redman, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
UNITED STATES, Plaintiff,
v.
RONDELL FREEMAN, a/k/a Nightfall, a/k/a Fall, BRIAN WILBOURN, a/k/a Stay High, a/k/a "3",
DANIEL HILL, a/ka Little Burling, a/k/a Little B, and ADAM SANDERS, a/k/a Redman, Defendants.
No. 07 CR 843
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
Date: May 13, 2013
On March 26, 2009, following a five-week trial, a jury found defendants Rondell Freeman, Brian Wilbourn, Daniel Hill, and Adam Sanders ("defendants") guilty of conspiracy to distribute and possess a controlled substance, namely cocaine, crack cocaine, heroin, and marijuana, beginning in or around 1998 and continuing until in or around December 2007 (Count 1). (Dkt. #620, #622, #624, #626.) The jury also convicted defendants of various other drug-related offenses. On August 26, 2009, this court granted defendants a new trial on Count 1, and on two possession with intent to deliver counts (Count 10 for Wilbourn, and Count 11 for Wilbourn and Freeman). United States v. Freeman, No. 07 CR 843, 2009 WL 2748483 (N.D. Ill. Aug. 26, 2009) ("Freeman I"), aff'd United States v. Freeman, 650 F.3d 673 (7th Cir. 2011) ("Freeman II"). Rather than pursue a new trial against defendants on Count 1, the government
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chose to proceed to sentencing on the remaining counts of conviction.1 The basis for the new trial on Count 1 was this court's finding that the principal witness for the government testified falsely as to essential facts necessary for conviction of conspiracy between Freeman and Wilbourn, under circumstances in which the government knew or should have known, and the false testimony affected the verdict. The evidence of conspiracy adduced at trial rises again in the context of determining the base offense level applicable to each defendant's recommended sentencing range under the United States Sentencing Guidelines.
The government now contends that the court may consider evidence introduced at trial in support of the conspiracy charged in Count 1 when sentencing defendants on their counts of conviction. This evidence, argues the government, is admissible as "relevant conduct" under U.S.S.G. § 1B1.3. Defendants object on multiple grounds. To resolve the issue, the court held a series of evidentiary hearings, one for each defendant.2 In the opinion that follows, the court sets
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forth the nature and extent of the relevant conduct it will consider when sentencing each defendant.
The sentencing guidelines require a defendant's base offense level to reflect the quantity of drugs for which he is accountable. United States v. Zehm, 217 F.3d 506, 511 (7th Cir. 2000). Section 1B1.3 states that where the guideline specifies more than one base offense level, the base offense level shall be determined on the basis of the defendant's relevant conduct, which includes the following:
[(a)](1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or wilfully caused by the defendant; and
[(a)(1)](B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
[(a)](2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;
[a](3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and
[a](4) any other information specified in the applicable guideline.
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U.S.S.G. § 1B1.3.3 Section 3D1.2(d) requires grouping of multiple counts when, inter alia, "the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm." U.S.S.G. § 3D1.2(d). Section 1B1.3(a)(2) and § 3D1.2(d) "read together, provide that a district court must increase a defendant's base offense level to account for 'relevant conduct,' which includes drugs from any acts that 'were part of the same course of conduct or common scheme or plan' as the convicted offense, regardless of whether the defendant was charged with or convicted of carrying out those acts." United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991); see United States v. Acosta, 85 F.3d 275, 279 (7th Cir. 1996). Moreover, as explained by the guidelines commentary, § 1B1.3(a)(2) "merely incorporates by reference the types of offenses set forth in § 3D1.2(d)" and application of this provision "does not require the defendant, in fact, to have been convicted of multiple counts." U.S.S.G. § 1B1.3(a)(2), Application Note 3; cf. Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 123 L. Ed. 2d 598 (1993) (guidelines commentary is authoritative) (cited with approval in Freeman v. United States, 131 S. Ct. 2685, 2692, 180 L. Ed. 2d 519 (2011)).
In demonstrating relevant conduct under § 1B1.3(a)(2), "the government's burden of proof is twofold: it must first prove by a preponderance of the evidence that the uncharged conduct bore the necessary relation to the offense of conviction, it must then establish the quantity of drugs involved in that conduct, also by a preponderance of the evidence." Acosta,
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85 F.3d at 279 (internal citation omitted). Under § 1B1.3, uncharged conduct bears the necessary relation to the offense of conviction if it is part of a common scheme or plan or the same course of conduct. U.S.S.G. § 1B1.3(a)(2). If this test is met, the court must then determine (1) the scope of the criminal activity that the defendant agreed to jointly undertake, and (2) whether the conduct of others was both in furtherance of that activity and reasonably foreseeable to the defendant. United States v. Stadfeld, 689 F.3d 705, 713 n.2 (7th Cir. 2012). The Seventh Circuit reviews the district court's factual findings under § 1B1.3 for clear error. United States v. Cedano-Rojes, 999 F.2d 1175, 1179 (7th Cir. 1993).
The factual background of this case was recounted by the Seventh Circuit in Freeman II, 650 F.3d at 675-678, and will only be discussed here as necessary to resolve the pending issue. Throughout this case, the government has maintained that Freeman was the leader of a conspiracy (the "Freeman drug trafficking organization" or the "Freeman DTO") that controlled the sale of cocaine, crack cocaine, heroin, and marijuana in and around the now-demolished Cabrini-Green public housing complex in Chicago, Illinois beginning in or around 1998 and continuing until in or around December 2007 when the defendants were arrested in connection with this case. The government argues that the Freeman DTO sold these drugs 24 hours a day, 7 days a week. As such, the government estimates that the conspiracy sold somewhere between 1.176 and 2.25 kilograms of crack cocaine per week and that, over the course of the conspiracy, it sold 8.4 kilograms or more of cocaine base in the form of crack cocaine, 150 kilograms or
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more of cocaine, 30 kilograms or more of heroin,4 and a measurable quantity of marijuana. (Gov't Version 10/11/11 at 55 n.11.)5
The government argues that defendants Wilbourn, Sanders and Hill helped Freeman manage his drug trafficking organization. According to the government, Freeman and Wilbourn used Freeman's condominium at 5740 N. Sheridan Road ("the Sheridan Shores condo") to prepare and package drugs; and Hill, Wilbourn and Sanders supervised drug sales at particular buildings in the Cabrini-Green complex including 714 W. Division Street ("the 714 Division building") and 1230 N. Burling Avenue ("the 1230 Burling building"). The government also argues that defendants Wilbourn, Sanders and Hill operated as sellers, pushing $5 and $10 baggies of crack cocaine, heroin and marijuana on the street.
At trial, Wilbourn and Hill acknowledged that they sold drugs but denied that they worked for Freeman, arguing that each had his own drug business that serviced customers at Cabrini-Green.6 Testimony at trial also established that Freeman and those working for him frequently sold drugs in baggies with a blue devil logo on them. Drugs in other types of baggies,
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such as orange stripe, lady bug, and ice cream, were also sold at Cabrini-Green. The orange stripe baggies were Wilbourn's brand of choice.
At the evidentiary hearings, the government presented evidence purportedly linking each defendant to the Freeman DTO and argued that each defendant should be accountable under § 1B1.3 for the entire amount of drugs sold by the Freeman DTO during the course of the conspiracy. The government has excluded the testimony of Senecca Williams7 and the proffer statements of Darnell Williams and Lonnie Mack.8 The following is a summary of the evidence...
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