Argued April 22, 2014.
[Copyrighted Material Omitted]
Appeals fro the United States District Court for the Northern District of Illinois, Western Division. Nos. 10 cr 50078-1, 10 cr 50078-4 -- Frederick J. Kapala, Judge.
For United States of America (12-3349, 13-1524), Plaintiff - Appellee: Mark T. Karner, Attorney, Office of The United States Attorney, Rockford, IL; David E. Bindi, Attorney, Office of The United States Attorney, Chicago, IL.
For Jeremy Cooper, Defendant - Appellant (12-3349): Frank C. Cook, Attorney, Freeport, IL.
For Steven T. Mcdowell, Defendant - Appellant (13-1524): William James Katt Jr., Attorney, Thomas L. Shriner Jr., Attorney, Foley & Lardner Llp, Milwaukee, WI.
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
Williams, Circuit Judge.
Jeremy Cooper and Steven McDowell were convicted on charges related to a heroin distribution conspiracy. They appeal, arguing first that there was insufficient evidence to support their conspiracy conviction. But a jury could reasonably conclude that they were co-conspirators given the evidence that McDowell and Cooper coordinated to obtain and sell drugs. Because there is sufficient evidence to support his conspiracy conviction, the district court correctly held McDowell responsible for his co-conspirators' possession of firearms in furtherance of the conspiracy. And the district court did not clearly err in finding McDowell and Cooper responsible for more than one but less than three kilograms of heroin based on Harris's admission and the other reliable evidence, or in increasing McDowell's offense level for being a leader of the conspiracy given the evidence that the conspiracy involved at least five individuals and he organized and exerted control over them. Therefore, we affirm Cooper's and McDowell's convictions and sentences.
In January 2011, Steven McDowell (" McDowell" ), Jeremy Cooper, Norman Breedlove, Murray Harris, and Robert Presley were charged with conspiring to possess with intent to distribute and to distribute one kilogram or more of heroin in Rockford, Illinois. McDowell was also charged with six counts of distributing heroin, in violation of 21 U.S.C. § 841(a)(1). In addition to the conspiracy charge, Cooper was charged with four counts of distributing heroin, one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
Steven McDowell's mother, Donia McDowell (" Donia" ), and her boyfriend, Vaughn Johnson, testified at trial. But their trial testimony, in which they denied
having much knowledge about the defendants' alleged drug activities, was much less illuminating than their grand jury statements. The government impeached them with their previous statements and introduced redacted versions of the grand jury testimony into the record as substantive evidence. Donia testified in her statement to the grand jury that she saw Cooper, Presley, and another individual cut and package drugs inside her apartment on Longwood Street (an apartment that McDowell, whose name was also on the lease, allegedly helped her rent). She also overheard her son Steven discuss purchasing drugs from Chicago twice a week with Cooper, Harris, and Presley, and she estimated that they bought about $1500 worth of drugs per trip. Donia testified that McDowell financed the heroin buys while Cooper, Presley, and Harris sold the drugs. According to Donia's and Johnson's grand jury testimony, this drug activity continued through the summer, with McDowell, Cooper, Harris, and Presley using Donia's apartment to mix and package the heroin, and selling it from the apartment and its parking lot. Donia also testified that Cooper and Presley recruited other men to help sell the drugs, and that she told her son that Harris had to move his operations elsewhere when guns began showing up at her apartment. Johnson testified that Harris, Cooper, and Presley then asked to sell their drugs out of his apartment, a request he declined.
Other individuals testified about the drug activity at Longwood. Law enforcement investigators and their informants made controlled purchases of heroin from Cooper at the Longwood apartment twice in November 2010. Charles Dixon, who lived across the street, testified that he received drugs from the apartment on occasion and saw McDowell, Cooper, and Presley there " all the time." Detra White visited the Longwood apartment " practically every day" and testified that Cooper and Presley tried to persuade her to buy heroin in addition to her regular purchases of crack cocaine. Rodney Love, Johnson's friend and a frequent visitor to Longwood, told the jury that after he was released from jail in November 2010, he saw Cooper and Presley package heroin in the Longwood apartment and sell it in the surrounding area. He testified that Melvin Jordan operated as their tester, trying the drugs to ensure quality. After the government refreshed his memory with his grand jury statement, Love testified that McDowell began selling heroin on a small scale a year earlier, but by November 2010, he had " got[ten] big and had people working for him."
Frank Freeman, who rented an apartment on Chestnut Street to McDowell and Presley, testified in his grand jury statement that those defendants used the apartment to sell drugs. When investigators searched the Chestnut apartment in October 2010, Cooper was inside, along with a gun, cell phones, several packets of heroin, and packaging materials. Outside the apartment, in a car rented to McDowell, they found a traffic citation issued to Cooper and money transfer receipts bearing McDowell's name.
Rockford Police Detective Gabe Wassner's trial testimony established that he made several controlled buys from several of the men charged in the conspiracy. In August 2010, Detective Wassner bought fifteen bags of heroin from Breedlove. That purchase led Detective Wassner to McDowell, who sold Wassner's informant twenty-one bags of heroin and told him to have Wassner come directly to McDowell when Wassner needed more heroin. The informant testified that McDowell also told him that, if McDowell's runners were ever unable to provide him heroin, he should call one of five other individuals involved in
selling heroin. Detective Wassner subsequently purchased heroin from McDowell and Harris--McDowell's brother--making two purchases in October, two in November, and one in December. For each of these purchases, he negotiated the price with McDowell and received the drugs from Harris, who was often driven to the pickup spot by McDowell or someone driving McDowell's car. McDowell and Presley were arrested after Wassner's December drug buy, and a bag of heroin was found close to their car.
At trial, Breedlove also told the jury that, beginning in June, McDowell began selling him $500 worth of heroin for $350 twice a week beginning in June. But in mid-July, McDowell said he was stepping away from selling drugs and that Breedlove should buy from Harris in the future. From then on, Breedlove got most of his drugs from the Longwood apartment, in the same multi-colored packaging and at the same discounted price. He frequently saw individuals preparing the drugs under the supervision of Harris, Presley, and Cooper. During some of his visits to Longwood, Cooper or Presley retrieved Breedlove's drugs at Harris's direction, but usually Harris handled Breedlove's drug transactions. And on the occasions when Breedlove was not satisfied with the product, McDowell got involved, promising to " fix the problem" by ensuring Breedlove and his complaining customers got better drugs. In late October, after Breedlove had received another bad batch of drugs from Harris, McDowell told Breedlove he was stepping back in to handle the drug sales and was on his way to buy some drugs. McDowell later sold drugs to Breedlove and gave him a free pack to make up for the bad drugs Breedlove had received from Harris.
On December 1, 2010, there was a shootout at the Longwood apartment after White gave a bag of firearms to Presley and Cooper in exchange for crack cocaine and cash. As it turned out, the guns likely belonged to White's son, Fred, who tried to get them back, but when Cooper refused, they drew their weapons and gunshots rang out. Donia, Johnson, and Love all saw both Presley and Cooper with guns before the pair fled the scene in Cooper's rental car. Nine shell casings were recovered and matched to a handgun found in Cooper's car when he and Presley were arrested the next day after selling heroin to a police informant. Investigators also recovered a large amount of cash, bags of heroin, another handgun, an ammunition clip, and a video showing Cooper ...