United States v. Love

• Decision Date: 07 February 2013
• Docket Number: No. 11–2547.,11–2547.
• Citation: 706 F.3d 832
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ronald LOVE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

706 F.3d 832

UNITED STATES of America, Plaintiff–Appellee,

v.Ronald LOVE, Defendant–Appellant.

No. 11–2547.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 5, 2012.

Decided Feb. 7, 2013.

Emily Kathleen Cremeans (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Denise Greathouse (argued), Attorney, Michael Best & Friedrich LLP, Waukesha, WI, Michelle L. Jacobs, Attorney, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant–Appellant.

Before POSNER, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

A jury convicted Ronald Love of one count of distributing crack cocaine and one count of conspiring to distribute crack cocaine. He appealed, challenging his conviction and sentence on various grounds. For the reasons that follow, we affirm his conviction, vacate his sentence, and remand for resentencing.

I. Background

Viewed in the light most favorable to the government, see United States v. Johns, 686 F.3d 438, 450 (7th Cir.2012), the evidence at trial showed as follows:

Landen Cowart first got in touch with the government in February 2009. Cowart, arrested for dealing Vicodin, was looking for a way out of jail. It is not clear whether he or the government made the first contact, but once both sides got together, they came to mutually beneficial agreement. Cowart agreed to act as a confidential informant (“CI”). In exchange, Cowart started accepting government money and his drug case “went away.” (Trial Tr. at 255.) By April or May 2009, after spending thirteen months in jail, Cowart was released back onto the streets. By September 2009, he had been assigned a target: Ronald Love, alias “Black.”

Cowart called Love and arranged to buy drugs from him. On September 9, 2009, an FBI task force, working with state and local law enforcement, gave Cowart marked money, wired him for sound and video, and sent agents to watch over him. Cowart made his way to the prearranged rendezvous point in Hammond, Indiana, parked his car, and waited. A white SUV circled the area. Eventually, the SUV parked behind Cowart's car. A man named Shelby Deloney approached and asked Cowart if he was “with Black.” Cowart indicated that he was and gave Deloney $550. Deloney gave Cowart a bag of crack cocaine that Cowart promptly turned over to the police. Task force agents followed the white SUV as it left the scene. After following the SUV with rotating teams on-and-off for roughly thirty blocks, they pulled the SUV over for blocking an alleyway. An officer found two men in the car. One of them told the officer that he was the one who had parked the car, and the police checked his ID. It was Ronald Love.¹ The officer gave Love a warning and let him go.

A couple of days later, Cowart's phone rang in the middle of the night. It was Love, and he was not happy. Apparently, someone had robbed one of Love's crack houses earlier that night and had taken both money and drugs. Love thought that Cowart was responsible. Cowart tried to calm Love down; he told Love he had nothing to do with the robbery and that he would try to find out who did it. Love called several more times that night before he finally left Cowart alone.

Thinking things had blown over, Cowart soon arranged another drug buy. Love agreed to meet again on September 14, 2009. Once again, the FBI task force gave Cowart buy money ($1,450 this time), wired him, and sent a surveillance team after him. Cowart parked in front of a Hammond, Indiana, home, met up with Love, and went inside.

Outside the house, the law enforcement surveillance team watched. They saw the same white SUV from September 9 park at a nearby gas station. Several people got out and walked toward the house. Then the surveillance team saw something unsettling. It was Cowart's car—or rather, a car the FBI gave Cowart for the operation—but Cowart was not inside. Instead, a man later identified as Robert Acklin was behind the wheel. Acklin moved the car to the gas station, parked, and walked back over to the house.

Back inside the house, Cowart and Love went into the kitchen, and Cowart gave Love the money. Love counted out the bills and went into the other room. When he came back, he had two other men—Robert Acklin and Shelby Deloney—in tow. Then the beating began. Cowart hit the floor and curled into a fetal position as Love interrogated him about the crack house robbery. The surveilling officers heard the commotion over Cowart's hidden microphone and swarmed into the house with weapons drawn. Inside, they found Love and Deloney standing over a bruised and bleeding Cowart. They placed Love and Deloney under arrest. Acklin fled through another door, but the officers eventually spotted him hiding behind a nearby shed, chased him down, and arrested him, too.

On October 9, 2009, a federal grand jury indicted Love for one count of distributing crack cocaine, see21 U.S.C. § 841(a)(1), and one count of conspiring to distribute crack cocaine, see21 U.S.C. § 846. The case was tried before a jury. Stipulated testimony from a chemist indicated that the substance recovered on September 9 was cocaine base (i.e., crack cocaine). Cowart testified extensively about his role as a CI. Phone logs, videotapes, audio recordings, and testimony from law enforcement officers backed up much of his testimony. Wallace Muhammed testified that he had loaned the white SUV to Love, whom he knew as “Black.” And Robert Acklin—one of Love's alleged co-conspirators—testified that he had dealt drugs with Love for several years and agreed to help him beat Cowart to avenge the crack house robbery. Love did not present witnesses in his defense. The jury convicted. Love appeals, arguing that (1) the evidence was insufficient to support his conviction; (2) the trial court improperly declined to give a “buyer-seller” jury instruction; (3) the trial court improperly admitted a hearsay statement; and (4) his sentence was improperly calculated. We address each challenge in turn.

II. Analysis

A. Sufficiency of the Evidence

Love first argues that there was not enough evidence to support his conspiracy conviction. Love “bears a heavy burden” when walking this road. United States v. Griffin, 684 F.3d 691, 694 (7th Cir.2012) (internal quotation marks omitted). To convict Love of conspiracy, the government had to prove that (1) two or more people agreed to commit an unlawful act; and (2) Love knowingly and intentionally joined in the agreement. See United States v. Avila, 557 F.3d 809, 814 (7th Cir.2009). The jury found that the government did so here, and we afford “great deference” to that finding. Id. at 815. Thus, we review the evidence in the light most favorable to the government and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Walker, 673 F.3d 649, 654 (7th Cir.2012).

Love argues that the government's evidence of conspiracy was not detailed enough—it proved at most “an agreement between Love, Acklin and Deloney to beat up and/or rob Cowart” and not an agreement to distribute crack. (Appellant's Br. at 19.) We respectfully disagree. Cowart arranged the September 9 drug deal with Love, but Deloney actually carried out the deal, and before he did so, he sought confirmation that Cowart was “with Black” (i.e., Love). Furthermore, Acklin testified that he and Love had been “dealing drugs together” for several years. (Trial Tr. at 312.) This evidence easily supports a reasonable inference that Love dealt drugs with help from Acklin and Deloney. And the September 14 beating provided further evidence. Acklin testified that Love called him and said that “the guy who robbed his crack house had some money, and he wanted to go out there and get it.” ( Id. at 313.) Cowart similarly testified that Love interrogated him about the crack house robberies during the beating. Based on this testimony, a rational jury could find that Love, Acklin, and Deloney all intentionally conspired together to defend Love's drug business. Cf. United States v. Johnson, 592 F.3d 749, 756 (7th Cir.2010) (“an agreement to warn of future threats to each other's business stemming from competitors or law-enforcement authorities” is evidence of conspiracy); United States v. Stephenson, 53 F.3d 836, 844 (7th Cir.1995) (attempt to rob a competitor gave rise “to a strong inference that the attack was perpetrated as a part of King's overall drug conspiracy”); United States v. Concepcion, 983 F.2d 369, 392 (2d Cir.1992) (defendant's offer to kill a rival was admissible as evidence of conspiracy because it showed defendant's “concern for the Organization's retail operations and the lengths to which [defendant] would go to defend them”). Accordingly, we think that there was sufficient evidence to support a conspiracy conviction.

B. Buyer–Seller Instruction

Love next claims that his conspiracy conviction cannot stand because the district court refused to give a “buyer-seller” instruction. Because the district court declined to give an instruction on a theory of defense, our review is de novo. United States v. Brack, 188 F.3d 748, 761 (7th Cir.1999).

Distributing drugs and conspiring to distribute drugs are two separate crimes. Compare21 U.S.C. § 841 (drug distribution) with21 U.S.C. § 846 (drug conspiracy). Drug distribution punishes the sale of drugs in its own right. United States v. Askew, 403 F.3d 496, 503 (7th Cir.2005). Conspiracy, on the other hand, “punish[es] criminal objectives beyond the sale itself—most typically, the parties' agreement subsequently to distribute the drugs exchanged.” Id. Thus, a sale of illegal drugs, without more, “cannot be the conspiracy, for it has no separate criminal object. What is required in such a case is an agreement to commit some other crime beyond the crime constituted by the sale agreement itself.” United States v. Thomas, 284 F.3d...