United States v. Miller

• Decision Date: 31 March 2015
• Docket Number: 14–1592.,Nos. 14–1237,14–1585,s. 14–1237
• Citation: 782 F.3d 793
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christian J. MILLER, Frank Jordan, and Joshua N. Bowser, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

782 F.3d 793

UNITED STATES of America, Plaintiff–Appellee

v.Christian J. MILLER, Frank Jordan, and Joshua N. Bowser, Defendants–Appellants.

Nos. 14–1237

14–1585

14–1592.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 10, 2015.

Decided March 31, 2015.

Bradley A. Blackington, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

Richard Mark Inman, Indianapolis, IN, for Defendant–Appellant.

Before POSNER, MANION, and TINDER, Circuit Judges.

Opinion

TINDER, Circuit Judge.

Joshua Bowser, Christian Miller, and Frank Jordan were convicted as part of a large-scale prosecution of people associated with the Indianapolis Chapter of the Outlaws Motorcycle Club. For those not familiar with the Club, it was founded in 1935 in the Chicagoland area as group of motorcycle enthusiasts, and its website now boasts chapters all over the world. See Outlaws History, http://www.outlawsmcworld.com/history.htm (last visited Mar. 23, 2015). The Club, or at least some of its members, have had a spotty history of compliance with criminal laws. See Outlaws Motorcycle Club, Wikipedia, http://en.wikipedia.org/wiki/Outlaws_Motorcycle_Club (last visited Mar. 23, 2015). On appeal, the defendants challenge various aspects of their convictions and sentences. We remand in regard to a single issue related to a condition of Bowser's supervised release, a point on which the government confesses error. In all other respects, we affirm.

I. BACKGROUND

Following an extensive FBI investigation, in July 2012, a grand jury in Indianapolis returned an indictment against 42 people associated with the Outlaws, including Bowser. Miller and Jordan were added to the case later, along with seven others. Ultimately, a Second Superseding Indictment charged a total of 51 people with 49 criminal offenses. Nearly all of the accused pleaded guilty to all the charges against them. Bowser, Miller, and Jordan did not.

On September 5, 2013, Bowser pleaded guilty to ten crimes, including wire fraud, extortion, witness tampering, and conspiracy to distribute cocaine, but he pleaded nolo contendere to an eleventh charge for violating the Racketeer Influenced and Corrupt Organizations statute (“RICO”), 18 U.S.C. § 1962(c). In accepting Bowser's plea, the district court noted that pleading nolo contendere allowed Bowser to refuse to admit that the Outlaws acted as a criminal organization and thus maintain his membership in the group. But the court decided that this concern was outweighed by the time and expense saved by avoiding trial. At sentencing, however, the court denied Bowser a reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, noting his nolo contendere plea and his refusal to admit that the Outlaws were a criminal enterprise or to accept that others conspired with him. Bowser nonetheless received a prison sentence of 180 months, well below the calculated guidelines imprisonment range of 235 to 293 months.

Meanwhile, on September 24, 2013, Miller proceeded to a jury trial on allegations of racketeering. Miller's defense focused on arguing that the government could not prove the robberies that it had charged as the predicate acts necessary for finding him guilty of a “pattern” of racketeering under § 1962(c). In particular, Miller argued that an incident where he confronted another Outlaws member, Bryan Glaze, about stealing from the Outlaws was not actually a robbery because Glaze knew what would happen as a result of him having stolen from the Outlaws.

According to testimony at trial, Miller confronted Glaze at the Outlaws clubhouse because Glaze had stolen from the Club while performing his duties of ordering and collecting money from other members for Outlaws merchandise. During the confrontation, Miller pushed Glaze, and another Outlaws member pointed a gun at Glaze and told him they were not “fucking around.” Miller then demanded that Glaze turn over his jewelry and clothing with the Outlaws insignia. Altogether approximately 17 Outlaws were present. One of those present was asked at trial if Glaze turned over the items voluntarily or by threat of force and responded, “Oh, by threat.” The Outlaws also took Glaze's personal items, including a television, stored in the Club's bunkhouse, though Glaze said they did so “without [his] knowledge.” As described by an eyewitness, this meant that the Outlaws went and removed the property while Glaze was confined to a chair and “couldn't move.” Bowser then summoned a tattoo artist to cover up Glaze's Outlaws tattoos. Glaze said that the other Outlaws “made it clear if [he] didn't cooperate with them, [he] probably wouldn't have walked out of there.” The jury found Miller guilty of racketeering, and the district court sentenced him to 60 months' imprisonment.

Lastly, on November 4, 2013, Jordan went to trial for conspiracy to distribute cocaine, 21 U.S.C. § 846, and unlawful use of a communication facility, id. § 843(b). His trial lasted three days, during which the jury heard testimony from numerous law enforcement officers involved in investigating his illegal activities and from two of his co-defendants, Hector Nava–Arredondo (“Nava”) and James Stonebraker. According to the trial testimony, Nava sold cocaine at Sidewinders, a bar in Indianapolis where Jordan was a bouncer, in exchange for providing cocaine to the bar's owner. (Sidewinders might be described as an Outlaws hangout.) Both Jordan and Stonebraker sold drugs that Nava provided to them. The FBI became aware of Jordan's potential involvement in drug distribution after wiretapping Nava's telephone as part of the larger Outlaws investigation.

The government also played the jury several recordings of intercepted telephone conversations between Jordan and Nava. Before the recordings were played, Nava testified that Jordan would typically call him when “he needed drugs to sell to a client, a customer that he had.” The government then played a recording in which Nava asked Jordan, “You want some?,” and Jordan responded, “Yep, they just called me.” Nava explained that he understood Jordan to be referring to his customer wanting drugs. The government also played a call in which Jordan told Nava that he “need[ed] another biscuit,” which Nava understood to mean that Jordan needed 3.5 more grams, also known as an “eight ball,” of cocaine. There was also a phone call where Jordan told Nava that someone—who Nava understood to be Jordan's customer—was on his way, and Nava told Jordan to bring money and meet him on the street.

Nava testified that, based on these conversations, he believed that he had an agreement with Jordan to provide Jordan with cocaine for Jordan to distribute to Jordan's customers. Nava explained that he provided Jordan with an eight ball of cocaine once per week—at a cost of $140 each—for approximately six months, until Nava's arrest in 2012. (An FBI agent explained that, during the investigation in this case, the street value of an eight ball of cocaine was approximately $150, and that the typical dosage of cocaine is “less than a gram, maybe a 16th of a gram.”) Jordan usually paid cash, Nava said, but Nava also fronted him cocaine on two or three occasions. Nava also explained that he frequently fronted cocaine to another person, Abraham Flores, who would also sometimes give cocaine to Jordan to resell. Nava said that he occasionally shared the proceeds of his drug sales with Jordan. On cross-examination, Nava indicated that he did not care whether Jordan resold the cocaine or used it himself.

During Stonebraker's testimony, he explained that he began purchasing cocaine at Sidewinders in 2010 after Bowser took him to the bar and asked the owner to introduce him to a cocaine supplier. Initially, Stonebraker and Bowser bought drugs from Flores, and Stonebraker would receive an eight ball two or three times per week. After two months, however, Stonebraker began dealing instead with Nava and purchased a quarter to a full ounce from him three to four times per week for roughly a year and a half. Stonebraker used cocaine himself and sold it to others, particularly members of the Outlaws. While waiting for Nava, Stonebraker said that he witnessed other people come to Sidewinders and buy cocaine from Jordan. This happened once or twice per weekend, with Jordan typically selling small quantities of cocaine (from .1 to 1 gram) that he would parcel off from a larger quantity he kept in a baggie. According to Stonebraker, Nava introduced Stonebraker to Jordan because they both bought cocaine from Nava, and Nava told Stonebraker that he could get cocaine from Flores or Jordan if Nava was unavailable. Stonebraker added that, on two or three occasions, he saw Jordan buy cocaine from Flores, who told Stonebraker that he was Jordan's primary cocaine source, though Jordan also received drugs from Nava.

The jury found Jordan guilty of distributing cocaine and also specifically found him accountable for distributing 500 or more grams of the drug. After trial, Jordan moved for acquittal, see Fed.R.Crim.P. 29, on the basis that the government had presented insufficient evidence to sustain his conviction for conspiracy to distribute cocaine. In denying the motion, the district court emphasized that Nava had testified that he fronted Jordan cocaine two or three times and had agreed with Jordan that Jordan would resell drugs. The court also cited Nava's testimony that over the course of six months Jordan frequently bought cocaine from him to resell, and Stonebraker's testimony that he was told he could buy drugs from Jordan if Nava was unavailable.

At sentencing, the district court concluded, over Jordan's objection, that he had a prior felony drug conviction, giving rise to a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B). The court then imposed the minimum prison term of 120 months.

II. DISCUSSION

Bowser, Miller, and Jordan consolidated their appellate briefing. Because the bulk of the issues raised in these briefs relate to Jordan, ...