United States v. Kindle

• Decision Date: 16 January 2013
• Docket Number: 10–3726,11–2262,Nos. 10–3725,11–2439.,s. 10–3725
• Citation: 698 F.3d 401
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Montreece KINDLE, Nathan Ward, Dwayne White and Leslie Mayfield, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

698 F.3d 401

UNITED STATES of America, Plaintiff–Appellee,

v.Montreece KINDLE, Nathan Ward, Dwayne White and Leslie Mayfield, Defendants–Appellants.

Nos. 10–3725, 10–3726, 11–2262, 11–2439.

United States Court of Appeals,Seventh Circuit.

Argued May 30, 2012.

Decided Sept. 26, 2012.

Rehearing En Banc Granted, Opinion Vacated Jan. 16, 2013.

Jeffrey Perconte (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Gal Pissetzky (argued/submitted), Attorney, Pissetzky & Berliner, Chicago, IL, for Defendant–Appellant in No. 10–3725.

Kristine M. Young, Attorney, Mayer Brown, LLP, Chicago, IL, for Defendant–Appellant in No. 10–3726.

Nathan Ward, Lompoc, CA, pro se.

Carol A. Brook, Imani Chiphe (argued), Attorneys, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant in No. 11–2262.

Joshua S. Press, Attorney, Adair R. Crosley (argued), Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Defendant–Appellant in No. 11–2439.

Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.

BAUER, Circuit Judge.

This case represents the consolidated appeal of four defendants charged with, among other crimes, conspiring to steal cocaine from a fictitious drug “stash house.” The defendants all pleaded not guilty, and they were all convicted on the same four counts: conspiracy to possess with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846 (“Count One”); attempted possession with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846 (“Count Two”); possession of four firearms during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Three”); and possession of a firearm after previously having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1) (“Count Four”). The defendants appeal various aspects of their convictions and sentences.

I. BACKGROUND

This case began with an undercover sting operation carried out by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); apparently, the ATF has a standard playbook for such operations, and the facts between cases are frequently nearly identical.¹ The ATF had a confidential informant named Jeffrey Potts (not an ATF agent himself) who shared a workplace with one of the defendants, Leslie Mayfield. Potts' role was to funnel parties interested in armed robberies to an undercover ATF agent, for which the ATF would pay Potts a fee. Someone—either Potts or Mayfield—brought up the possibility of robbing a drug “stash house.” Potts referred Mayfield to undercover ATF Agent Dave Gomez. A meeting was arranged for July 23, 2009, among Mayfield, Potts, and Gomez.

At the July 23 meeting, Agent Gomez pretended to be a disgruntled courier for a Mexican drug cartel; the ATF's hidden recording devices captured this and future meetings of Gomez and the defendants. Gomez laid out an initial plan for a stash-house robbery. He explained that he ran a shipment of about 6 to 8 kilograms of cocaine to an unidentified location every month. He claimed that the location—the stash house—always contained about 20 to 30 kilograms of cocaine in addition to the quantity he delivered. No such stash house actually existed, of course; Gomez was following the standard playbook for ATF sting operations of this kind. Gomez told Mayfield that there were usually about three armed guards inside the stash house when he made his delivery, and that he needed an outside crew to assist him to rob the house. Mayfield asked several logistical questions. He wanted to know, for example, how a crew could break into the house and where in the room the three guards were usually situated. Mayfield ultimately expressed interest in carrying out the robbery. He told Gomez that he would assemble his people and agreed to meet later with the full team present to hash out the plan.

Prior to the second meeting, there was a phone call between Mayfield and Gomez. During their short conversation, Mayfield confirmed the meeting for the following day and indicated an immediate need to move some drugs; specifically; he said that he would be interested in dealing cocaine with Gomez prior to the planned robbery.

The parties reconvened on August 9, 2009, this time with a full robbery crew present. And again, they were all being recorded. Mayfield, Montreece Kindle, Nathan Ward, and an unidentified fourth individual ² all met with Gomez to discuss the stash-house robbery. Gomez described the setup once again, including the part about three armed guards in the stash house. Mayfield and Kindle pressed Gomez on specifics, such as how long he was usually present in the stash house for his pickups and whether the person answering the door was ever armed. Mayfield stressed the importance of the element of surprise, and Kindle indicated that they might have to kill the stash-house guards. The parties eventually turned to post-robbery plans, and discussed how they would divvy up the shares of cocaine. Ward in particular noted that the shares should be divided five ways, evenly. The parties discussed some more logistics and eventually agreed to reconvene on the day of the robbery.

Gomez contacted Mayfield to inform him that the stash-house delivery would occur at a location in Naperville, Illinois on August 10, 2009. On that day, Gomez met Mayfield and his team, which now included Dwayne White in addition to Kindle and Ward. Mayfield asked where the team would go after pulling off the robbery, and Gomez responded that he could show the team where they would be storing the stolen cocaine. Mayfield agreed, telling his crew to follow Gomez in a brown van to the storage site. Mayfield rode in Gomez's vehicle and, during the short trip, they reviewed the robbery plans. After everyone arrived at the supposed storage site, they exited their vehicles; Gomez noticed for the first time that White was new to the crew. Gomez sought and received assurances that White knew what was going down. White sought confirmation that there would be weapons inside the stash house. Finally, having surveyed the storage facility, the members of Mayfield's team indicated their readiness to proceed with the robbery; Gomez gave a signal, and federal authorities descended on the party, arresting the defendants.

After the arrest, federal agents searched the crew's van. They found several weapons (including a sawed-off shotgun), ski masks, ammunition, bullet-proof vests, latex gloves, and a duffel bag suitable for carrying a large amount of drugs. An agent also recovered a ski mask directly from White's pocket. Kindle waived his Miranda rights and gave a statement to the authorities, implicating himself and the others in the conspiracy to rob the fictitious stash house.

All defendants pleaded not guilty and proceeded to a jury trial. Mayfield, White, and Ward were tried together, charged with the same four crimes. Kindle was charged with the same crimes, but was tried separately because of his post-arrest statement that implicated the others. All defendants were found guilty of the following crimes: conspiracy to possess with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846 (“Count One”); attempted possession with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846 (“Count Two”); possession of four firearms during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Three”); and possession of a firearm after previously having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1) (“Count Four”).

II. DISCUSSION

The defendants have mounted several challenges on appeal. Mayfield, White, Ward, and Kindle all challenge the sufficiency of the evidence under Counts One and Two; White also challenges the sufficiency of the evidence under Count Three. Mayfield argues that the district court erred when it denied him the right to present an entrapment defense; he also challenges his sentence of 322 months. Ward's counsel filed an Anders brief and seeks to withdraw her representation; Ward responded. We deal with each of these issues in turn.

A. Challenges to the Sufficiency of the Evidence

All of the defendants challenge the prosecution's evidence on various counts, arguing that it was insufficient to prove their guilt beyond a reasonable doubt. They face a “formidable hurdle” with this argument.See United States v. Dennis, 115 F.3d 524, 534 (7th Cir.1997). When considering a challenge to the sufficiency of the evidence, we construe the record “in the light most favorable to the prosecution, making all reasonable inferences in its favor, and affirm the conviction so long as any rational trier of fact could have found the defendant to have committed the essential elements of the crime.” United States v. Mota, 685 F.3d 644, 649–650 (7th Cir.2012) (quoting United States v. Vallar, 635 F.3d 271, 286 (7th Cir.2011)). Overturning a guilty verdict for lack of evidence is serious business; we are essentially asked to take the case out of the jury's hands, something we will do “only if the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” Mota, 685 at 650 (emphasis added) (quoting United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir.2003)).

1. Evidence for Count One

All defendants challenge the sufficiency of the evidence for their guilty verdicts under Count One, conspiracy to possess cocaine with intent to distribute. See21 U.S.C. § 846. To establish the conspiracy, the government had to prove: (1) the existence of an agreement between 2 or more persons to possess with intent to distribute cocaine; (2) that the defendant knew of the agreement; and (3) that the defendant intended to join the agreement. United States v. Spagnola, 632 F.3d 981, 986 (7th Cir.2011).

Put simply, the Government...