Argued: October 22, 2012.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06-CR-586-- Harry D. Leinenweber, Judge.
For United States of America, Plaintiff - Appellee (11-3519, 11-3627, 12-1016, 12-1290): Stuart D. Fullerton, Attorney, Marc Krickbaum, Attorney, Office of The United States Attorney, Chicago, IL.
For Christopher Blitch, Defendant - Appellant (11-3519): J. Clifford Greene Jr., Attorney, Law Offices of J. Clifford Greene, Jr., Chicago, IL.
For Michael Carwell, Defendant - Appellant (11-3627): Stephen E. Eberhardt, Attorney, Tinley Park, IL.
For Devarl Washington, Defendant - Appellant (12-1016): Steven Shobat, Attorney, Chicago, IL.
For Michael Harris, Defendant - Appellant (12-1290): Michael W. Weaver, Attorney, Mcdermott, Will & Emery, Chicago, IL.
Before BAUER and ROVNER, Circuit Judges, and RANDA, District Judge.[*]
Randa, District Judge.
This case involves criminal charges arising from a fictional drug stash house robbery. Christopher Blitch, Michael Carwell, Devarl Washington and Michael Harris were charged with conspiring and attempting to possess with the intent to distribute more than five kilograms of cocaine.
The defendants were also charged with being felons in possession of firearms and carrying those firearms in furtherance of a crime. In 2007, a jury convicted the defendants on all counts, but on appeal, this court reversed and remanded for a new trial due to problems with jury selection and deliberation. United States v. Blitch, 622 F.3d 658 (7th Cir. 2010). On re-trial, the defendants were acquitted on the attempt charge but convicted on all other counts. Each defendant was sentenced to the statutory minimum of twenty-five years in prison.
In these consolidated appeals, two of the defendants, Carwell and Harris, argue that the district court erred by granting the government's motion in limine to preclude them from presenting an entrapment defense. The court disagrees, and the balance of the arguments presented on appeal are similarly without merit. Therefore, the defendants' convictions and sentences are affirmed.
In 2006, the Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ) developed a plan to recruit individuals to rob a fictional drug stash house. Special Agent David Gomez assumed the identity of " Loquito," a drug courier for a large Mexican drug cartel. According to the cover story, Loquito was unhappy with his employer and intended to rob a stash house operated by the cartel. To find Loquito's accomplices for the fictional robbery, the ATF procured the assistance of Jamison Moore, a paid informant. Previously, Moore entered into a plea agreement in state court, wherein he agreed to assist in the arrest and indictment of ten different individuals on charges for delivering or possessing with the intent to deliver controlled substances. In July of 2006, Moore began recruiting people to join Loquito's crew in an effort to fulfill this quota. Thus began a series of recorded meetings between Moore, Agent Gomez, and some or all of the defendants.
On July 27, 2006, Moore, Agent Gomez, and an unindicted co-conspirator met with defendant Washington. Gomez told Washington that he was a courier for a Mexican drug cartel, and that he wanted to assemble a crew to steal cocaine from a cartel stash house. Gomez explained that he transported between ten and fifteen kilograms of cocaine at a time for the cartel, that roughly the day before he transported the cocaine he received a call from his boss who would tell him to be ready the next day, and that he never learned the location of the stash house until about an hour before he was supposed to pick up the drugs. Gomez further explained that once inside the stash house, he usually saw between fifteen and twenty-five kilograms of cocaine. Gomez also explained that he had seen " stacks and stacks" of money inside the house. Washington asked Gomez whether he had seen any " artillery" in the house, which Gomez understood to mean guns. Later in the conversation, Washington indicated that he was carrying a gun that day by pointing to his waistband and stating that he was " heated," and that he " stay[ed] heated."
Agent Gomez asked Washington what would happen if, during the robbery, one of the cartel guys inside the stash house pulled out a " MAC," a type of assault rifle. Washington responded that everyone involved in the robbery would have guns. Later in the conversation, Washington said that once inside the stash house, " if I have to pull a trigger, or ... if I hear a trigger ... everybody gotta go! ... If they didn't fuckin' come wit' us, they're stayin' there." Finally, Washington and Moore discussed how they would split fifteen kilograms of cocaine, leaving each person with three
kilograms. Washington remarked, " If you can't make no'in' happen with that [three kilograms] then ... ," which Gomez understood to be a reference to selling the three kilograms of cocaine.
On August 8, Agent Gomez met again with Moore, the unindicted co-conspirator, and Washington. Gomez repeated his earlier assertion that the stash house would probably contain at least fifteen kilograms of cocaine. During that conversation, Washington said, " When you, when you dealin' wit' a home invasion, robbery, armed violence, you know what to expect. Understand me? Then these are drug dealers. The[ir] first mind is not to call the police." Washington said he planned to cover his face during the robbery, explaining, " I don't never go naked." Washington also said they would have to tie up the people inside the house, and that his " main thing is not to have to play with no pistol unless we're fittin' to kill it."
At the same meeting, Moore discussed how he would " work on" getting defendant Harris to take part in the robbery. Moore said he wanted Harris to be involved, but he would not " waste no time wit' him and keep playin' wit' his ass ... [H]e's in or he's out. ... If he don't want no money, then that's on him, man." Later, Moore said that if Harris and another man " don't [want to] do it, they don't want no part, then I'll just, we, we'll just push on from there," and added, " We ain't wastin' time with them, 'cause we don't got no time to waste."
On August 14, ATF agents monitored Moore as he made separate telephone calls to defendants Harris and Carwell, telling them that Agent Gomez (i.e., Loquito) was going to be in town later that day for a meeting. Moore also told Harris that one of the people who was going to be involved in the robbery was no longer available and asked whether Harris could find ...