USA. v. Hardamon

• Decision Date: 17 August 1999
• Docket Number: No. 98-1511,98-1511
• Citation: 188 F.3d 843
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLETOS E. HARDAMON, also known as CJ, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 843

188 F.3d 843 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLETOS E. HARDAMON, also known as CJ, Defendant-Appellant.

No. 98-1511

United States Court of Appeals, Seventh Circuit

Argued January 21, 1999

Decided August 17, 1999

Appeal from the United States District Court for the Southern District of Illinois. No. 97 CR 30005--William L. Beatty, Judge.

Before BAUER, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-Appellant Carletos Hardamon ("Hardamon") was charged in a second superseding indictment with three other persons on April 9, 1997, with conspiracy to distribute, and to possess with intent to distribute, cocaine base, in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846. The three other co-defendants, Joseph Trotter ("Trotter"), Charles Media ("Media"), and Theodora Overton ("Overton"), all pled guilty to conspiracy, as well as to all the other counts contained in the second superseding indictment.¹

All three subsequently testified at Hardamon's trial on behalf of the government. After a jury found Hardamon guilty, he was sentenced to life in prison, 10 years supervised release, a $2000 fine, and a special assessment of $100. On appeal, Hardamon argues that he received ineffective assistance of counsel; and furthermore that the government engaged in prosecutorial misconduct in presenting the testimony of witnesses who were offered recommendations for reduced sentences; that the district court committed clear error in determining the quantity of crack attributable to Hardamon under the relevant conduct provision of the guidelines; and that the district court committed clear error in increasing his offense level by four for his leadership role in the offense. We affirm.

I. BACKGROUND

The Alton Police Department and Drug Enforcement Agency ("DEA") conducted a joint investigation which revealed that Hardamon, Media, Overton, and Trotter were involved in the distribution of crack in the Alton, Illinois area, from approximately July through December of 1996. During the course of the conspiracy, customers would either pay cash for the crack cocaine or trade weapons, cellular phones, televisions, clothing. Additionally, customers, in exchange for crack, would allow the four conspirators mentioned above to use their vehicles to transport some of the previously mentioned items to and from Chicago.

Hardamon kept the conspiracy afloat by traveling to Alton and distributing multi-ounce quantities of crack to Trotter and Overton.² Overton would then act as Hardamon's middleperson, delivering crack to other narcotics dealers. Initially, Trotter was one of the people who used Overton as a middleperson, but after Trotter and Overton had a disagreement over drug profits, Trotter commenced dealing directly with Hardamon. Before Trotter ceased to use Overton as a middleperson, Overton had delivered 8.25 ounces of crack from Hardamon to Trotter.

After Trotter started dealing directly with Hardamon, Hardamon fronted Trotter with 15 ounces of crack for distribution in the Alton area. Hardamon directed Trotter as to the percentage of drugs that could be sold, traded or bartered for cash, clothing, or guns. Additionally, when Trotter transported guns or cash to Chicago, it was Hardamon who would reimburse Trotter for his hotel, as well as all other traveling expenses.

In addition to the narcotics Hardamon supplied Trotter with, he likewise supplied Overton with large quantities of drugs. In an interview with DEA agents, Overton stated that Hardamon had traveled to Alton in September of 1996 and given her approximately 20 ounces of crack for distribution. Additionally, in November of 1996, after Trotter began dealing directly with Hardamon, Hardamon supplied Overton with another ten ounces of crack for distribution.

On October 16, 1996, the Alton police were dispatched to Trotter's apartment in response to a report of "shots fired." The officers, upon search of Trotter's apartment with his consent, seized two large plastic bags believed to contain crack cocaine from the bedroom closet. Laboratory analysis later confirmed that the substance was 22.9 grams of crack.³

On December 30, 1996, a confidential informant made two controlled buys from Trotter at his apartment, the first in the morning and the second sometime in the afternoon.⁴ Laboratory analysis of the two controlled buys revealed a net weight of 4.9 grams of cocaine base for the first buy and 4.6 grams of cocaine base for the second buy. The first buy constitutes Count 2 of the indictment with the second buy providing the foundation for Count 3 of the indictment.

Also on December 30, 1996, a search warrant was executed at Trotter's residence and the items seized included crack cocaine and a large amount of U.S. currency, including all of the prerecorded funds used during the two controlled buys. Trotter, Trent Conner, Nicholaus Lovett, and Stuart Overton⁵ were taken into custody.

On January 23, 1997, a Grand Jury in the Southern District of Illinois returned a five- count indictment against Trotter. Count 1 charged that from on or about July 27, 1996, until about December 30, 1996, Trotter conspired with Media, Theodora Bell, and others both known and unknown to the Grand Jury, to distribute and possess with intent to distribute crack, in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846. Counts 2 and 3 charged that from on or about December 30, 1996, Trotter distributed crack cocaine, in violation of 21 U.S.C. sec. 841(a)(1). Counts 4 and 5 charged Trotter with possession with intent to distribute crack cocaine, also in violation of 21 U.S.C. sec. 841(a)(1). On February 19, 1997, the indictment was withdrawn and a superseding indictment was issued that included Media in Counts 1 and 5, and Overton in Count 1. Finally, on April 9, 1997, a second superseding indictment was returned which included Hardamon in Count 1. The remaining counts of the second superseding indictment were as follows: Counts two through four charged Trotter with violations of 21 U.S.C. sec. 841(a)(1) (knowingly and intentionally distributing crack cocaine) on three different occasions; Count five charged Trotter and Media with the same offense but on a different date; Count six charged Overton and Media with violating 18 U.S.C. sec. 1956(a)(1) (A)(i) (conducting a money transfer from the proceeds of distributing crack cocaine); Counts seven through nine also charged Overton with the same offense but on separate dates; Counts ten and eleven also charged Media with violating 18 U.S.C. sec. 1956(a)(1)(A)(i), and again on different dates.

On April 10, 1997, a warrant was issued for Hardamon, with his arrest taking place on May 22, 1997, in the Northern District of Illinois.⁶ Trotter, Media, and Overton pled guilty to all counts charged in the indictment, and subsequently testified for the government at Hardamon's trial. We are of the opinion that the co-conspirators' testimony, various recordings, the controlled buys made by the DEA, and other circumstantial and direct evidence, all helped serve to convince the jury that Hardamon was guilty of conspiracy to distribute crack cocaine.

A Presentence Investigation Report ("PSR") was prepared for Hardamon. The PSR recommended that: 1) Hardamon be held responsible for 53.25 ounces (1.509 kilograms) of crack cocaine; 2) Hardamon's offense level should be increased by four because he was an organizer or leader of the conspiracy; 3) Hardamon should receive a two level increase for possessing a dangerous weapon during the offense, see U.S.S.G. sec. 2D1.1(b)(1); and 4) Hardamon should receive a life sentence.

Hardamon filed numerous general objections to the PSR. He also made two specific objections concerning the organizer/leader increase and the possession of a dangerous weapon increase. The trial judge overruled all the objections, and on February 25, 1998, sentenced Hardamon to a term of life imprisonment.

II. ISSUES

On appeal, Hardamon alleges: 1) that he was denied the effective assistance of trial counsel; 2) that the government engaged in prosecutorial misconduct when it presented testimony from Media, Overton, and Trotter it had obtained after offering sentence reductions in exchange for truthful testimony at Hardamon's trial; 3) that the district court was clearly erroneous in holding Hardamon responsible for 1.509 kilograms of crack cocaine as relevant conduct; and (4) that the district court committed clear error when it increased Hardamon's offense level by four after concluding he was an organizer or leader of the conspiracy.

III. ANALYSIS

A. Ineffective Assistance of Trial Counsel

During oral argument, we questioned Hardamon's attorney as to whether he truly wanted to challenge the effectiveness of trial counsel in this direct appeal. We expressed our concern about his making this challenge at this time, rather than in a collateral proceeding under 28 U.S.C. sec. 2255. Hardamon was asking us to review a claim that usually falls short of finding support in the original trial record. See Bond v. United States, 1 F.3d 631, 635 (7th Cir. 1993) ("a defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose"); see also Guinan v. United States, 6 F.3d 468, 471 (7th Cir. 1993) ("Often, indeed usually, the effectiveness of a trial lawyer's performance cannot be evaluated without an evidentiary hearing at which the lawyer is asked to explain why he did not follow seemingly promising lines of defense."). It is well known that when such a claim is brought on direct appeal and rejected, future challenges to the effectiveness of trial counsel will be limited to the law of the case,⁷ leaving an individual with the formidable task of convincing a judge that our previous ruling should be disregarded. See Taglia, 922 F.2d at 418; Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989); United States v. Mazak, 789...