USA. v. Tingle

• Decision Date: 08 July 1999
• Docket Number: No. 98-2637,98-2637
• Citation: 183 F.3d 719
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Daphney D. Tingle, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 719

183 F.3d 719 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Daphney D. Tingle, Defendant-Appellant.

No. 98-2637

United States Court of Appeals, Seventh Circuit

Argued December 8, 1998

Decided July 8, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 CR 149--J.P. Stadtmueller, Chief Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Coffey, Ripple, and Manion, Circuit Judges.

Manion, Circuit Judge.

A jury convicted Daphney Tingle of conspiring to distribute cocaine base and distributing cocaine base. On appeal, she argues that: the district court improperly denied her motion for a continuance of the trial; the evidence was insufficient to convict; the Eastern District of Wisconsin was an improper venue for her trial on the distribution charge; the district court erred in failing to grant a mistrial based on the government's use of perjurious testimony; and the jury instruction dealing with the testimony of witnesses was erroneous. Because the Eastern District of Wisconsin was not a proper venue, we reverse Tingle's conviction for distributing cocaine base, but affirm her conviction for conspiring to distribute cocaine base.

I. Facts

Beginning at least by 1995, Tingle ran a drug distribution business out of her home in Chicago, Illinois. Testimony from a co-conspirator--Eric Laws--indicated that Tingle would "front" him drugs, that is, sell drugs on credit. Laws, who lived and sold the drugs in Racine, Wisconsin, testified that he or his couriers would pick up cocaine from Tingle or her boyfriend "Tutu" at Tingle's home, and would transport it to Racine.

Another co-conspirator--Mario Hudson--who joined the conspiracy in the latter part of 1996, corroborated this testimony. He confirmed that Tingle dispensed crack cocaine to him and that he paid for it only after reselling the drugs. In May 1996, after the police arrested Hudson for drug possession, he began cooperating with the police. Hudson told the police that on June 23, 1996, a courier named Oscar Rathers would be transporting drugs from Tingle's house to Racine.

As Hudson predicted, Rathers left Racine on June 23, boarded a train to Chicago, and proceeded to Tingle's house. Carrying a small backpack, Rathers entered Tingle's home, stayed inside for eight minutes, and then departed for the train station. He then returned to Racine delivering the backpack to the home of Allen Judon. After Rathers left Judon's home, the police arrested him and found him carrying about two ounces of crack cocaine. Shortly thereafter, the police executed a search warrant at Judon's house and recovered the backpack, which contained over 600 grams of crack cocaine.

On August 19, 1997, Tingle was indicted for one count of conspiring to distribute in excess of fifty grams of cocaine base, and one count of distributing cocaine base, in violation of 21 U.S.C. sec.sec. 841(a)(1) & 846, and 18 U.S.C. sec. 2. After a four-day trial, the jury convicted Tingle of both counts. She was sentenced to 262 months' imprisonment and five years of supervised release for each count, with the sentences to run concurrently.

II. Analysis

A. Motion to Continue Trial

Tingle first argues that the district court improperly denied her motion to continue the trial. "'[T]his court will overturn a trial court's disposition of a motion to continue only for an abuse of discretion and a showing of actual prejudice.'" United States v. Koen, 982 F.2d 1101, 1114 (7th Cir. 1992) (quoting United States v. Blandina, 895 F.2d 293, 297 (7th Cir. 1989)). In assessing claims of inadequate time to prepare for trial, we examine the amount of time available for preparation, the likelihood of prejudice from the denial of additional time, the complexity of the case, the adequacy of the defense actually provided at the trial, the skill and experience of the attorney, and any representation of the accused by other attorneys. United States v. Zambrana, 841 F.2d 1320, 1327 (7th Cir. 1988). Because district courts necessarily require great latitude in scheduling trials, broad discretion must be given to a district court in its decision concerning a motion to continue. Morris v. Slappy, 461 U.S. 1, 11 (1983).

Tingle was arraigned on September 17, 1997. Two days later, her family retained attorney Chester Blair to represent her. On October 30, a magistrate judge allowed Tingle to substitute counsel, but cautioned the parties that the court's scheduling order was to remain in effect, including the November 17 trial date. On November 12 or 13, just days before her scheduled trial, one of Tingle's new attorneys--Jimmie Jones-- moved to continue the trial until December 22, 1997, citing other professional commitments and the need to further prepare Tingle's case. The district judge eventually postponed the trial until December 1, but refused to grant the additional twenty-one days requested by Tingle.

Tingle argues in a conclusory fashion that she "was severely prejudiced" by the district court's denial of her motion to continue. She fails, however, to specify any way in which she suffered prejudice, other than to contend that she needed more time to prepare her defense. Applying the factors mentioned above, we note that Tingle's first attorney represented her interests and filed motions on her behalf, including a motion to suppress evidence. Furthermore, Tingle's motion to continue indicates that Jones is an experienced criminal litigator. It is also relevant that this is a straightforward drug conspiracy case, which is not particularly complex. At trial, the government produced only ten witnesses whose testimony concerned common events. Other than her coconspirators, most of their testimony concerned relatively minor points. In any event, Jones was sufficiently prepared to raise numerous evidentiary objections during the direct examination of the government's witnesses, aggressively cross-examine them, and to successfully demonstrate that Eric Laws' recollection was faulty.

Besides Jones, Tingle was also represented at trial by another attorney--Mark Lyon. Furthermore, Tingle has not argued that additional time would have resulted in a more vigorous defense, nor has she shown that her defense was deficient in any respect. Thus, Tingle has failed to demonstrate that the district court abused its discretion in granting only a two-week continuance, and she failed to show that the failure to grant a further continuance caused her actual prejudice.

B. Sufficiency of the Evidence

Tingle next argues that the evidence was insufficient to convict her of conspiring to distribute cocaine base. This challenge requires us to determine whether in viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. United States v. Hach, 162 F.3d 937, 942 (7th Cir. 1998). To sustain a conspiracy conviction, the record must contain evidence showing that a conspiracy to distribute cocaine existed, and that Tingle knowingly joined it. Hach, 162 F.3d at 942. To establish the existence of a drug conspiracy, as opposed to a series of mere buy-sell agreements, the government must provide "proof of an agreement to commit a crime other than the crime that consists of the sale itself." United States v. Pearson, 113 F.3d 758, 761 (7th Cir. 1997) (quoting United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993) (en banc)). In determining whether a conspiracy existed, a defendant's guilt can often be inferred from circumstantial evidence, including whether she stood to gain financially from the conspiracy. United States v. Miller, 159 F.3d 1106, 1110 (7th Cir. 1998). We have also identified four highly probative factors: (1) the length of affiliation; (2) the established method of payment; (3) the extent to which the transactions were standardized; and (4) the demonstrated level of mutual trust. Hach, 162 F.3d at 943. "An individual's participation in drug deals which involve credit transactions such as 'fronting' is strong evidence of membership in a conspiracy." United States v. Rodriguez, 53 F.3d 1439, 1445 (7th Cir. 1995) (internal quotations omitted).

In the present case, the jury heard testimony from Tingle's associates in her cocaine distribution activities: Eric Laws, Mario Hudson, and Oscar Rathers. Eric Laws identified Tingle at trial, and testified that he first obtained cocaine from her at her home in Chicago around the "[f]irst part of '95." He also stated that he generally received from Tingle two deliveries of cocaine per month. Tingle fronted the drugs to Laws. The jury also learned that Laws' drug- dealing enterprise was briefly impeded by his incarceration between May and September 1995, but his activities began again when he was released. Laws testified that generally he or his comrades (Derrel Garth, Davin Laws, Oscar Rathers, and Mario Hudson) would go to Chicago about twice each month to get the drugs. Laws estimated that after his release from prison in 1995 he made between ten and fifteen trips to Chicago himself. Usually Tingle or her boyfriend Tutu would give them a kilogram of cocaine, and would charge between $22,000 and $26,500, which Laws would pay only after he sold the cocaine to others. Laws further testified that although he usually obtained cocaine powder from Tingle (from which he manufactured crack cocaine), he also obtained crack cocaine from her.

Oscar Rathers testified that he acted as a drug courier. He would periodically go to Tingle's house in Chicago to meet someone he knew only as "Daf." He would give her his bag, she would fill it, and he would return to Racine with the drugs and get paid $300 for his efforts. On two occasions he also obtained two smaller bags of cocaine from Tingle, which he sold himself.

Mario Hudson testified that he was involved with Eric Laws in selling crack...