United States v. Patterson, 092903 FED7, 02-3134

Docket Nº:02-3134
Party Name:United States v. Patterson
Case Date:September 29, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

WILLIAM M. PATTERSON and DARYL L. SMITH, Defendants-Appellants.

Nos. 02-3134, 02-3153

United States Court of Appeals, Seventh Circuit

September 29, 2003

Modified on October 30, 2003

ARGUED SEPTEMBER 11, 2003

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 CR 108—Elaine E. Bucklo, Judge.

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

FLA UM, Chief Judge .

William Patterson and Daryl Smith, former Chicago police officers, were tried jointly before a jury on charges of conspiring and attempting to possess with the intent to distribute and to distribute, approximately five kilograms of cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 846; carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C § 924(c)(1)(A); and theft of government funds in violation of 18 U.S.C. § 641. Patterson was convicted of all of the charges, and Smith was acquitted of all charges except for theft of government funds. Patterson appeals his convictions, contesting the sufficiency of the evidence presented on the conspiracy and firearm charges, and further arguing that it was error to allow a verdict form that permitted the jury to find lesser quantities of cocaine attributable to him than that charged in the indictment. Smith appeals his sentence, arguing that the district court wrongfully considered for sentence enhancement purposes the allegations that formed the basis of the charges for which he was acquitted. For the following reasons we affirm the district court’s decision.

I. Background

At the time of his arrest, William Patterson was a Chicago police sergeant and a 28-year veteran of the police force. He was assigned to the Public Housing Division, where he worked in a plainclothes tactical unit devoted to fighting crime in public housing projects. Patterson supervised several officers, including defendant Daryl Smith.

When Patterson began to experience financial difficulties due to the cost of his divorce and child custody litigation, he approached a longstanding friend, Arthur Veal. Patterson told Veal that he occasionally supplemented his income by stopping suspected drug dealers and seizing their cash for his personal use, without effectuating formal arrests. Veal mentioned that he was aware of other police officers who engaged in similar practices.

Patterson visited Veal at Veal’s trucking business on January 13, 2001. Veal informed Patterson of an opportunity to collaborate with a “Mexican male” drug dealer who wished to rip-off his boss’s stash house, meaning that he wished to steal the drug money and narcotics stored in the stash house. Veal said that the rip-off would involve approximately $500,000 cash, and five to ten kilograms of cocaine. Veal explained that the cash would be divided between Veal, Patterson, and Patterson’s assistants, should he require any. The drugs, however, were to be delivered to the collaborating drug dealer. Patterson indicated interest and mentioned that he would enlist Officer Smith, known as “Smitty,” as his aid. That evening, there were five phone calls between Patterson’s and Smith’s cell phones.

Unbeknownst to Patterson, the police had apprehended Veal with a large amount of cocaine and cash in November2000. In exchange for a more favorable plea agreement, Veal had begun to cooperate with the FBI by aiding their investigations of official corruption and the trade of narcotics. Veal recorded many of the conversations that ensued between Patterson and himself regarding the planned rip-off.

On January 19, 2001 Patterson visited Veal at his place of business. The meeting was recorded by FBI surveillance. Veal informed Patterson that the stash house would be empty during the rip-off. According to the plan, the collaborating drug dealer, his boss, and the boss’s wife would not be present. Veal confirmed that there would be “10 keys,” meaning kilograms, of cocaine and “550 to 600,” meaning $550,000 to $600,000, in cash in the stash house. Patterson was to remove the cocaine and the cash. Veal reminded Patterson that all of the stolen cocaine would be delivered to the collaborating drug dealer, while the cash would be divided between Veal, Patterson, and Patterson’s assistants.

Patterson and Veal also discussed “Plan B,” the back-up plan. If a neighbor noticed the rip-off and complained, Patterson was to pretend that he was on official police business and inventory one kilogram of cocaine at the police station. If the rip-off was undetected, however, Patterson was not to do an official police inventory of any cocaine.

Veal concluded the meeting by instructing Patterson to “tell Smitty after you do this gig [you] have to stop sticking up the projects now. Don’t be snatching no money out of nobody hand.” Patterson replied that he and Smith had stolen drugs and money from hiding places in the Chicago public housing projects earlier that very day, and that they had also planted drugs on a suspect.

Veal and Patterson had numerous discussions on the phone between January 22 and January 31, 2001, some of which were recorded. During a recorded conversation on January 22, Patterson told Veal that Smith had said that the rip-off “looks like retirement.” On a recorded conversation on January 31, Veal told Patterson that he should find two bags at the stash house, intimating that one would contain cocaine, while the other would contain approximately $600,000 in cash. Patterson said that he and Smith planned to enter the stash house through the front door with the use of a key, but would break the lock on the back door on the way out to create the appearance of a forced entry. Veal told Patterson to bring the stolen cocaine to the Jewel grocery parking lot at 50th Street and Kedzie Avenue in Chicago, where Veal would be waiting in his truck with the collaborating drug dealer. Finally, Veal promised to provide Patterson with the address and keys to the stash house at a meeting the following day.

Before Veal and Patterson met on the morning of February 1, 2001, the FBI provided Veal with an envelope containing the address to an FBI undercover apartment that would serve as the “stash house,” and a map of the area. The FBI undercover apartment was equipped with audio and video recording equipment. An FBI agent had placed a black garbage bag containing $20,000 cash and a red gym bag containing five one-kilogram bricks of sham cocaine in the apartment.

When Veal and Patterson met on the morning of February 1, 2001, Veal gave Patterson the envelope that the FBI had given to him, as well as keys to the main door of the apartment building and to the front door of the FBI undercover apartment. Veal reconfirmed that Patterson would find five kilograms of cocaine in one bag and cash in another...

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