United States v. Thompson, Anthony

Court Case Details
  • Case Name: United States v. Thompson, Anthony
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: April 09, 2002
  • Precedential Status: Published
  • Docket #: 99-4019
  • Judges: Per Curiam
  • Nature: criminal
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-4019, 99-4074, 99-4279, 99-4280,

99-4281, 99-4283 & 99-4296

United States of America,

Plaintiff-Appellee,

v.

Anthony Thompson, Stephanie Johnson,

Anthony D. Spradley, et al.,

Defendants-Appellees.

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. IP-98-38-CR-01-13-M/F--Larry J. McKinney, Chief Judge.

Argued June 4, 2001--Decided April 9, 2002

Before Ripple, Evans, and Williams, Circuit

Judges.

Williams, Circuit Judge. In this case,

we are presented with former participants

in a drug conspiracy who raise a myriad

of challenges to their convictions and

sentences. We affirm in all respects

except we remand for the resentencing of

two defendants because the district court

erred by applying U.S.S.G. sec.

2D1.1(d)(1), the drug offense murder

cross reference, to their sentences. We

also, in affirming the district court,

adopt the Tenth Circuit’s view of waiver,

see United States v. Cherry, 217 F.3d 811

(10th Cir. 2000), and approve the

admission of the testimony of a murdered

co-conspirator when the murder was

reasonably foreseeable to other

conspirators.

I. BACKGROUND

Defendants Willie Boddie, Stephanie

Johnson, Dennis Jones, Anthony Spradley,

Anthony Thompson, Ellis Walker, and Mark

White were charged with crimes arising

out of their participation in a large,

Indianapolis-based drug conspiracy. The

conspiracy reigned from 1992 to 1997 and

involved the trafficking of hundreds of

kilograms (kilos) of cocaine, the

accumulation and laundering of

substantial profits, and two short-lived

business pursuits. The conspiracy seemed

invincible until November 1996, when

Marcus Willis, working on behalf of law-

enforcement officials, arrived on the

scene. He worked for law enforcement for

approximately eight months (through June

of 1997) until he was murdered in one of

the defendant’s vehicles. Not long after

his murder, charges were filed against

each of the defendants and several others

not part of this appeal.

Count 1 of the indictment charged each

defendant with conspiracy to distribute

more than five kilograms of cocaine (21

U.S.C. sec. 846). Counts 2-3 charged

defendants Spradley and White with murder

of an informant (18 U.S.C. sec.

1512(a)(1)(C)), and counts 5-6 charged

Jones with assisting in that murder (18

U.S.C. sec.sec. 1512(a)(1)(B), (C)) and

(18 U.S.C. sec.sec. 1111(a), 1113).

Johnson was charged under counts 8, 9,

16, and 17 for substantive money

laundering and conspiracy to launder./1

At trial, the government relied heavily

on the testimony of several

coconspirators who agreed to cooperate

with the government in exchange for

leniency. There was little physical

evidence of the drug conspiracy, but the

testimonial evidence, for the most part,

was overwhelming, and the jury convicted

all the defendants, except Johnson, of

drug conspiracy. As to the Marcus Willis

murder, the alleged eye-witnesses,

unindicted coconspirator William Cox and

defendant Mark White, could not agree on

who actually murdered Willis and neither

of their stories could be corroborated.

We assume that this inconsistency led the

jury to acquit Spradley, Jones, and White

of the murder-related charges. Finally,

as to Johnson’s money laundering charges,

the government presented evidence that

she allowed several defendants to

purchase vehicles, homes, and motorcycles

in her name to conceal the identity of

the true owners and the illegal source of

the purchase funds. Based on this

evidence, the jury convicted her of

substantive money laundering and

conspiracy to launder.

The district court sentenced Spradley,

Boddie, Jones, and White to life

imprisonment on the drug conspiracy count

pursuant to sec. 2D1.1 of the Sentencing

Guidelines after concluding that the

conspiracy trafficked in more than five

kilos of cocaine and that the sec.

2D1.1(d)(1) murder cross reference was

applicable to Spradley, Jones, and White.

These same defendants, including Boddie,

were also sentenced to 20 years’

imprisonment for their money laundering

counts--to run consecutive to their life

terms. Walker was sentenced to 327 months

and Thompson to 210 months on the drug

conspiracy count. Johnson was sentenced

to four 59-month sentences for the money

laundering convictions, to be served

concurrently. The defendants now appeal

their convictions and sentences on a

number of grounds.

II. ANALYSIS

A. Murder Cross Reference (U.S.S.G.

sec.2D1.1(d)(1))

Spradley, Jones, and White challenge the

district court’s application of the drug

offense murder cross reference, sec.

2D1.1(d)(1). This cross reference directs

judges to apply the First-Degree Murder

Guideline, sec.2A1.1, if the defendant’s

relevant conduct includes the killing of

a victim under circumstances that would

constitute premeditated murder as defined

by 18 U.S.C. sec. 1111. United States v.

Meyer, 157 F.3d 1067, 1073 (7th Cir.

1998). The defendants do not challenge

the district court’s factual findings,

but argue that its findings are

insufficient to support the application

of the cross reference. Reviewing their

challenges de novo, see United States v.

Hunt, 272 F.3d 488, 496 (7th Cir. 2001),

we agree that the findings are

insufficient as to Jones and White, but

disagree as to Spradley.

1. The cover-up

As the defendants state in their opening

brief, "[t]he district court’s findings

of fact relevant to the death [of Marcus

Willis] represent a meticulous and

objective assessment of the facts as the

court found them." So we quote a large

portion of the findings here rather than

rewriting them.

The evidence is that Marcus Willis

was found fatally shot in the late

evening or early morning hours of

Friday/Saturday June 27/28, 1997.

Dennis Jones was arrested while

driving a Yukon automobile into the

parking lot at Mobile Jamzz on Key

stone Avenue in Indianapolis on

Monday, June 30, 1997. The operator

of Mobile Jamzz was contacted by a

person identified as Demarco to

arrange for an appointment for

repair. The call was made on

Saturday morning, June 28, 1997. The

repair was scheduled for Monday,

June 30, 1997. That Yukon was the .

. . same Yukon which White had been

seen operating on many occasions and

was generally identified as White’s

vehicle. Forensic evidence was

presented establishing that the

blood of Marcus Willis was present

in that vehicle. At the time of

Jones’ arrest, the front passenger

seat had been removed, the carpet on

the passenger side had been cut out,

and there was damage to the left

side of the front windshield of the

vehicle . . . .

The evidence also reveals that

some of the remains of a left front

seat used in Yukon automobiles of

the same year and model as this

one, and some seat belt parts were

found by police later in a fire pit

in the back yard at

[coconspirator’s] Dwayne Gibson’s

detail garage on Caroline [Street].

Carpet knives, along with the boxes

in which they were purchased, were

found by police in the garage. Car

pet samples from the Yukon carpet

were found on the knives. Glass

fragments consistent with the

windshield glass of the Yukon were

found on the floor of the Caroline

garage. Blood samples were obtained

from the overhead door at Caroline

and from the floor of the garage.

These samples were matched with

Marcus Willis’ blood. Gibson later

led law enforcement to the place

where he had tossed the floor mats

from the Yukon. The blood of Marcus

Willis was found on those mats. . . .

The district court then stated that this

physical evidence was consistent with

Keith Cork’s and Gibson’s trial testimony

about the attempted coverup of the

murder. Among other things, both

testified that Spradley orchestrated the

coverup, directed Jones to drive the

Yukon, and Gibson to follow Jones to

Mobile Jamzz. They further testified

that, as Jones was being apprehended by

police in Mobile Jamzz’s parking lot,

Gibson fled to another location and

called Spradley to alert him of the

arrest.

The court chose not to credit Jones’s

testimony as to what occurred before his

arrest on the morning of June 30, in part

because it could not be corroborated.

Jones testified that he was with

Stephanie Johnson in a hotel room that

morning and that Gibson paged him between

9:00 and 10:00 a.m., after which Johnson

took him to meet Gibson. He further

testified that Gibson gave him $20.00 to

drive the Yukon to Mobile Jamzz. Johnson,

however, told police that she had not

been with Jones that morning and produced

an employment record showing that she

clocked into work that day at 8:30 a.m.

Based on this evidence, the district

court concluded that Willis was murdered

in White’s Yukon, and that Spradley and

Jones, among others, tried to cover up

the murder.

2. Application of the murder cross

reference

The district court inferred from

Spradley’s, Jones’s, and White’s

participation in the cover-up that they

knew Willis had been murdered by someone

as a result of his informant activities,

which threatened to expose the

conspiracy. The attempt to cover up the

murder, the district court concluded, was

done in furtherance of the goals of the

conspiracy and in an attempt to avoid

detection. Because relevant conduct

includes any action "that . . . occurred

. . . in the course of attempting to

avoid detection or responsibility for

that offense," see U.S.S.G.

sec.1B1.3(a)(1), the court thought the

sec.2D1.1(d)(1) murder cross reference

should be applied to each of these

defendants./2

According to these defendants, the

district court’s findings are

insufficient to support application of

the cross reference. The Guidelines

define relevant conduct as activities

that occurred "in the course of

attempting to avoid detection or

responsibility for [the] offense [of

conviction]." U.S.S.G. sec.

1B1.3(a)(1)(B). Therefore, they argue, it

was inappropriate for the district court

to base its application of the cross

reference on their cover-up activities

because their offense of conviction is a

drug-trafficking conspiracy, not

murder./3

We disagree with the defendants’

characterization of the district court’s

ruling. A fair reading of the court’s

order makes clear that it found that the

cover-up activities were committed at

least in part to avoid detection of the

conspiracy. For example, the district

court links the defendants’ cover-up

activities to the conspiracy when

rejecting Spradley’s objection to the

Guideline application: "Spradley’s role

in the clean-up and his knowledge that

Willis was giving evidence to the police

support the inference that Spradley was

aware that Willis had been murdered in an

attempt to keep Willis from doing any

further damage to the cocaine

conspiracy." Similar language is used

regarding defendants Jones and White.

Therefore we believe that the district

court did not treat the murder as the

defendants’ offense of conviction.

However, the defendants’ argument

highlights another potential problem with

the district court’s ruling--the

possibility that section 2A1.1’s

premeditation requirement (see U.S.S.G.

sec. 2A1.1, cmt. n. 1) may have been lost

in the application of the several

Guideline provisions at play here. We

remanded a case recently because a

district court failed to make a specific

finding of premeditation. In that case,

United States v. Thomas, 280 F.3d 1149

(7th Cir. 2002), the district court

applied the First-Degree Murder Guideline

to a defendant convicted of firearm-

related convictions. Several facts relied

upon by the district court seemed to

connect the defendant (Thomas) to the

murder of Armando Leal: Thomas was

arrested while driving Leal’s vehicle;

Leal was likely murdered in that vehicle;

Thomas pawned a pistol owned by Leal; and

Leal’s blood was found in Thomas’s

driveway. But the district court did not

discuss how these facts showed that

Thomas murdered Leal with malice

aforethought. Id. at 1158. The inference

of premeditation was not the only one

that could be drawn from those facts (for

example, Thomas could have driven away in

Leal’s car after Leal had been murdered

by someone else) so we remanded for the

district court to make a specific finding

of premeditation. Id. at 1156-57.

Here, the district court found that

Spradley, Jones, and White knew of the

murder and that it was committed in

furtherance of the conspiracy. In so

doing, the court apparently invoked

Guideline sec.1B1.3(a)(1)(B), which

holdsdefendants accountable at sentencing

for the reasonably foreseeable relevant

conduct of their coconspirators as long

as the conduct was done in furtherance of

the conspiracy. Because this additional

Guideline is in play, the question we are

presented with is slightly different than

that presented in Thomas. The question

here is whether it was reasonably

foreseeable to Spradley, Jones, and White

that Willis could be killed, with malice

aforethought (premeditation), in

furtherance of the conspiracy. See

U.S.S.G. sec. 1B1.3(a)(1); sec. 2A1.1.

After thoroughly reviewing the court’s

ruling, we believe that it made findings

sufficient to support application of the

First-Degree Murder Guideline to

Spradley, but not to Jones or White. We

now focus our discussion on whether

Willis’s murder was reasonably

foreseeable to each defendant.

a. Spradley

The district court found that Spradley

knew Willis had been murdered to keep him

from relaying any more information to

law-enforcement authorities. It based its

findings, in part, on evidence that

Spradley knew about Willis’s informant

activities. Coconspirator Keith Cork

testified at trial that several days

before Willis’s murder, he and Spradley

confronted Willis about rumors that he

had been talking to the police. Cork’s

testimony was corroborated by a statement

to the same effect made by Willis to

police on June 20, 1997, approximately

ten days before the murder. In addition,

Cork testified that Spradley, in a

meeting about Willis’s informant

activities attended by several conspiracy

members, said that he would not let

anyone hurt them.

We believe that this evidence

sufficiently supports the conclusion that

it was reasonably foreseeable to Spradley

that Willis would be murdered with malice

aforethought. Spradley knew that Willis

was likely to be murdered in an attempt

to prevent him from further exposing the

conspiracy, which satisfies the test of

reasonable foreseeability. Therefore the

district court did not err by applying

the First-Degree Murder Guideline to

Spradley. See United States v. Walker,

142 F.3d 103, 114 (2d Cir. 1998).

b. Jones

We have more difficulty concluding that

the Guideline was properly applied to

Jones. We do not think the fact that

Jones lied to the police about his

whereabouts on the morning of June 30th

and his participation in the cover-up,

taken together, are sufficient to support

the inference that it was reasonably

foreseeable to him that Willis would be

murdered with malice aforethought. These

facts tell us nothing about whether Jones

had reason to know that someone in the

conspiracy was likely to murder an

informant.

"Reasonable foreseeability is the

divining rod of the relevant conduct

sentencing provision," United States v.

DePriest, 6 F.3d 1201, 1212 (7th Cir.

1993) (internal citation omitted),

therefore, "the burden of proving

foreseeability under the circumstances of

each individual case [rests] squarely on

the government." United States v.

Sandoval-Curiel, 50 F.3d 1389, 1393 (7th

Cir. 1995). Here, the government has not

met its burden. We have been willing to

assume that carrying of weapons is

foreseeable to most drug conspiracy

members, in light of the violent nature

of the drug business. See, e.g., id. But

even with this presumption of violence,

we still require the government to prove

that the conspiracy’s actions were

foreseeable to each defendant to whom it

seeks to impute relevant conduct. See id.

The government attempted to prove

foreseeability by introducing evidence of

conspiratorial violence, which we discuss

in more detail later. The government’s

evidence of random, non-fatal acts was

not sufficient to meet its burden of

proving foreseeability. Only one act the

government points to actually resulted in

an injury, and there was no evidence that

this conspiracy had previously involved

the murder or attempted murder of

informants (or anyone else for that

matter). This is simply not enough

evidence. Without some better indication

that Jones had reason to know that the

conspiracy was likely to kill informants,

we have no basis for concluding that the

premeditated murder of Willis was

reasonably foreseeable to him. Cf. United

States v. Diaz, 176 F.3d 52, 99-100 (2d

Cir. 1999) (holding the murder of a

bystander in the commission of attempted

murder of another was reasonably

foreseeable because the conspirators had

agreed to the attempted murder); United

States v. Brooks, 957 F.2d 1138, 1149

(4th Cir. 1992) (holding the use of

firearm was foreseeable to conspirator

who himself had been threatened at

gunpoint by other conspirators around the

time gun was used). Therefore, we believe

the district court erred by applying the

First-Degree Murder Guideline to Jones.

However, we do not think it necessary to

remand for the district court to make

additional findings. The court has

already recognized in its order that

"there is no evidence that this

conspiracy had [ ] ever engaged in

murder." Accordingly, we vacate the

district court’s imposition of a life

sentence to Jones based on the

application of the First-Degree Murder

Guideline and remand for the

recalculation of his sentence.

c. White

For similar reasons, we believe that the

district court erred by applying the

First-Degree Murder Guideline to White.

The court based its application of the

Guideline to White on the fact that he

lied about his whereabouts on the morning

of/after the murder and that he

participated in the cover-up./4 From

these two facts, it concluded that White

knew that Willis had been murdered in

White’s sports utility vehicle and that

the murder was committed in furtherance

of the conspiracy. As our analysis of

Jones’s challenge suggests, these facts

are insufficient. The fact that White

knew that Willis had been murdered does

not tell us whether the murder was

reasonably foreseeable to him. And it

certainly does not tell us whether it was

reasonably foreseeable to him that Willis

would be murdered with malice

aforethought. There is also no indication

that the conspiracy had previously

engaged in murder or attempted murder. We

need more of an explanation to judge

whether the inference can be made from

these facts that Willis’s premeditated

murder was reasonably foreseeable to

White, but as is the case with Jones, we

think that a remand for additional

findings is unnecessary. Instead, we

remand for resentencing consistent with

our ruling.

B. Hearsay Statements

Pursuant to Federal Rule of Evidence

804(b)(6), the government sought to admit

several hearsay statements made by

murdered informant Marcus Willis. Rule

804(b)(6) exempts from the hearsay ban

statements made by a declarant whose

unavailability the defendant directly or

indirectly procured. The government

alleged before the district court that

some of the defendants (Spradley, White,

Boddie, Jones, and Walker) affirmatively

participated in Willis’s murder or its

cover-up. Based on the government’s

proffer, the district court admitted the

hearsay statements against these

defendants. The government then argued

that the actions of Spradley, White,

Boddie, Jones, and Walker should also

permit application of Rule 804(b)(6) to

the remaining defendants because Willis’s

murder was within the scope and committed

in furtherance of the drug conspiracy,

and was reasonably foreseeable to each of

the conspirators. Drawing on the

coconspirator liability rationale first

espoused in Pinkerton v. United States,

328 U.S. 640 (1946), the district court

admitted the hearsay statements against

those defendants that did not

affirmatively participate in the murder

or its cover-up.

Both groups of defendants challenge the

admission into evidence of Willis’s

statements. Those defendants alleged by

the government to have participated in

Willis’s murder or its cover-up argue

that the district court misapplied Rule

804(b)(6) and violated their

confrontation rights pursuant to the

Sixth Amendment. Reviewing their Rule

804(b)(6) challenge for abuse of

discretion, see United States v. Hunt,

272 F.3d 488, 494 (7th Cir. 2001), and

Confrontation Clause challenge de novo,

United States v. Ochoa, 229 F.3d 631, 637

(7th Cir. 2000), we conclude that any

error made by the district court was

harmless. The second group of defendants,

those who did not affirmatively

participate in the murder or cover-up,

argue that the district court erred by

admitting the statements against them

based on an extension of Pinkerton.

Employing the same standards of review,

we reject their challenges as well.

1. Waiver of hearsay and confrontation

clause objections

A defendant may waive his right to

object on hearsay and Confrontation

Clause grounds to the admission of out-

of-court statements made by a declarant

whose unavailability he intentionally

procured./5 United States v. Dhinsa,

243 F.3d 635, 653 (2d Cir. 2001); Ochoa,

229 F.3d at 639; Fed. R. Evid. 804(b)(6)

(exempting from the prohibition against

hearsay "statements offered against a

party that has engaged or acquiesced in

wrongdoing that was intended to, and did,

procure the unavailability of the

declarant as a witness"). The primary

reasoning behind this rule is obvious--to

deter criminals from intimidating or

"taking care of" potential witnesses

against them. But the rule is also

grounded in principles of equity. See

United States v. White, 116 F.3d 903, 911

(D.C. Cir. 1997) ("The defendant who has

removed an adverse witness is in a weak

position to complain about losing the

chance to cross-examine him."); see also

Graham, The Right of Confrontation and

the Hearsay Rule: Sir Walter Raleigh

Loses Another One, 8 Crim. L. Bull. 99,

139 (1972), cited in United States v.

Carlson, 547 F.2d 1346, 1359 (8th Cir.

1976); United States v. Mayes, 512 F.2d

637, 650 (6th Cir. 1975). Admission of

the witness’s statements at least

partially offsets the benefit the

defendant obtained by his misconduct. See

White, 116 F.3d at 911.

a. Spradley, Jones, White, Boddie, and

Walker

Spradley, Jones, White, Boddie, and

Walker argue that the district court

erred by concluding that their participa

tion in the cover-up of Willis’s murder

amounted to waiver. Their arguments here

are similar to their objections to the

application of the First-Degree Murder

Guideline. For example, they argue that

their intent to procure Willis’s

unavailability cannot be inferred from

their participation in the cover-up of

the murder.

While our analysis of the First-Degree

Murder Guideline might suggest that the

district court erred in its admission of

Willis’s hearsay statements against these

defendants, we will not disturb their

convictions if admission of the hearsay

statements was harmless error. Ochoa, 229

F.3d at 639-40. Harmless errors are those

errors that did not contribute to the

verdict. Hunt, 272 F.3d at 496. Based on

our review of the trial record, we

conclude that the admission of Willis’s

statements falls within this category of

errors. We reach this conclusion because

the government presented overwhelming

evidence of the defendants’ guilt;

Willis’s statements were not very

important to the government’s case; and,

to the extent the statements were

important, they were cumulative. See

Hunt, 272 F.3d at 496 (listing these and

other concerns as part of the harmless

error analysis).

The government’s case against each of

the defendants was overwhelming. The

government obtained the cooperation of

several conspirators who provided highly

incriminating testimony. Keith Cork, for

example, testified that the conspiracy

trafficked in more than 500 kilograms of

cocaine. As Spradley’s assistant, he was

familiar with the drug activities of each

of the defendants. His testimony detailed

the inner-workings of the conspiracy and

the defendants’ roles within it. Other

cooperating witnesses, Robert Johnson,

for example, also testified as to the

depth and breadth of the conspiracy’s

drug activities and of his personal

interaction with the defendants as a mid-

level dealer in the organization. In

addition, evidence of the many numerous

expensive cars that conspiracy members

purchased in Stephanie Johnson’s and

other individuals’ names was introduced

at trial. There was evidence that large

amounts of cash (over $350,000 dollars)

had been seized from Spradley, Jones, and

others during the pendency of the

conspiracy--cash that was never

reclaimed. Taken together, these facts

are more than sufficient to support the

jury’s verdict. See United States v.

Brown, 934 F.2d 886, 890 (7th Cir. 1991).

Given this overwhelming evidence, it is

highly unlikely that Willis’s marginally

inculpating statements had any impact on

the jury’s findings. Willis’s statements

described uncompleted drug transactions,

detailed some of the conspiracy’s money

laundering activities, and put names to

faces and owners to vehicles. For

example, Willis told law enforcement

officials that conspirator Cox, who is

not part of this appeal, drove a vehicle

originally rented in California. This

evidence, along with other testimony,

helped show a potential link between the

conspiracy and a California supplier. But

this link was not critical to the

government’s case; there was plenty of

evidence of the conspiracy’s other

suppliers. Beyond this, the bulk of

Willis’s statements consisted of matching

license plate numbers with drivers, and

describing money wires and the purchase

of money orders. This sort of evidence

did not directly prove the existence of

the drug conspiracy, but was probative of

certain defendants’ money laundering

charges that are not part of this appeal.

Defendants argue that Willis’s

statements must have been important to

the government’s case because the

prosecutor relied heavily on them in

closing arguments. They fail to take into

account, however, that the only reason

the government mentioned the statements

was to remind the jury that they had been

corroborated by other evidence presented

at trial. Therefore, we decline to hold

that the statements mentioned by the

government in closing arguments were

important to its case.

Finally, those aspects of Willis’s

statements that were arguably important

to the government’s case were cumulative.

For example, Willis told law enforcement

officials that he watched Spradley

oversee the transfer of two kilos of

drugs from one vehicle to another. This

same incident was testified to by

coconspirator William Cox, who described

the transaction in much greater detail.

Accordingly, we hold that any error in

the admission of Willis’s statements was

harmless./6

b. Coconspirator waiver

For those defendants who did not

participate in Willis’s murder or its

cover-up (Stephanie Johnson and Anthony

Thompson), the government urges us to

follow United States v. Cherry, 217 F.3d

811 (10th Cir. 2000). Cherry holds that

if a murder is reasonably foreseeable to

a conspirator and within the scope and in

furtherance of the conspiracy, the

conspirator waives his right to confront

that witness just as if he killed the

witness himself. Although we believe that

Cherry is well-reasoned, we find

thatWillis’s murder was not reasonably

foreseeable to these defendants. But

because admission of the statements was

harmless, the error does not require

reversal.

i. United States v. Cherry

The Tenth Circuit’s decision in Cherry

involves three main points. We summarize

them briefly and explain why we find them

persuasive. First, coconspirator waiver

is consistent with waiver-by-misconduct

jurisprudence. Several waiver-by-

misconduct cases recognize the

possibility of imputed waiver, although

none ruled explicitly on the question. In

Olson v. Green, 668 F.2d 421 (8th Cir.

1982), the Eighth Circuit noted that

someone acting on a defendant’s behalf

may waive his hearsay and Confrontation

Clause objections. Id. at 429. Also, one

of the Supreme Court’s early waiver-by-

misconduct cases (not cited in Cherry)

contains similar language, saying that

waiver may be "actual or imputed." Snyder

v. Com. of Mass., 291 U.S. 97, 106

(1934).

Coconspirator waiver fits within the

federal rules’s codification of the

waiver-by-misconduct rule as well. Under

Rule 804(b)(6), a defendant who

"acquiesces in conduct intended to

procure the unavailability of a witness"

waives his hearsay objection. We agree

with the Tenth Circuit that, by using the

term "acquiesce," the drafters of Rule

804(b)(6) expressed an intent to allow

for the imputation of waiver. See Cherry,

217 F.3d at 816. This makes sense because

acquiescence itself is an act. See

Webster’s Third New Int’l Dictionary 18

(1986) (defining acquiesce as "to accept

or comply tacitly or passively"). And

when that act is done intentionally and

voluntarily it is no less valid as a

means of waiver than the decision to more

directly procure the unavailability of a

witness by, for example, murdering a wit

ness oneself.

Second, coconspirator waiver strikes the

proper balance between protecting a

defendant’s confrontation rights and

preventing witness tampering. See Cherry,

217 F.3d at 820. Without a rule of

coconspirator waiver, the majority of the

members of a conspiracy could benefit

from a few members engaging in

misconduct. Such a result is at odds with

the waiver-by-misconduct doctrine’s

equitable underpinnings. Cf. White, 116

F.3d at 911.

Third, as a practical matter, "[i]t

would make little sense to limit

forfeiture of a defendant’s trial rights

to a narrower set of facts than would be

sufficient to sustain a conviction and

corresponding loss of liberty." Cherry,

217 F.3d at 818. Pinkerton established

the rule that a defendant may be held

liable for acts committed by her

coconspirator that were within the scope

and in furtherance of the conspiracy, and

were reasonably foreseeable to her. See

Pinkerton, 328 U.S. at 647; see also

United States v. Sandoval-Curiel, 50 F.3d

1389, 1392 (7th Cir. 1995). Under this

rule, a defendant may be held criminally

responsible for any act committed in

furtherance of the conspiracy, including

acts taken to prevent apprehension. See

United States v. Williams, 81 F.3d 1434,

1439 (7th Cir. 1996); United States v.

Nowak, 448 F.2d 134, 139 (7th Cir. 1971).

Witness tampering is one example of these

sorts of acts, see, e.g., United States

v. Maloney, 71 F.3d 645, 661 (7th Cir.

1995), and, of course, can constitute

waiver-by-misconduct.

Not only do we agree with the reasoning

of the majority in Cherry, but the

dissent in Cherry does not persuade us to

reject coconspirator waiver. The dissent

primarily focuses on the idea that mere

membership in a conspiracy should not be

sufficient to establish waiver. Accord

United States v. White, 838 F.Supp. 618

(D.D.C. 1993) aff’d, 116 F.3d 983 (D.C.

Cir. 1997). We agree with this

proposition and believe that it is

inherent in our holding--for waiver to be

imputed to a conspirator, the conduct

resulting in the witness’s unavailability

must have been committed in furtherance

of the conspiracy, within its scope, and

reasonably foreseeable to the

conspirator. Cf. Williams, 81 F.3d at

1441 (engaging in particularized

foreseeability inquiry). In addition, the

Cherry dissent’s reliance on a quote from

Olson v. Green that states that

constitutional rights are "personal to

the accused" is unavailing. That phrase

was first iterated by the Eighth Circuit

in United States v. Carlson, 547 F.2d

1346 (8th Cir. 1976), to make the point

that a defendant may not revive at trial

through his counsel a right he

previously, "personally" waived. Id. at

1359, n. 11. The Carlson court’s use of

the phrase does not express a disapproval

of imputed waiver.

To the extent that the Cherry dissent’s

reliance on the phrase "personal to the

accused" communicates a concern that the

imputation of waiver will result in the

unintentional waiver of defendants’

rights (compare Johnson v. Zerbst, 304

U.S. 458, 464 (1938) ("[F]or waiver to be

effective, it must be intentional.") with

Sandoval-Curiel, 50 F.3d at 1392 ("A

defendant is responsible for a

substantive offense committed by his

coconspirators . . . even if the

defendant does not have knowledge of

it.")) we believe that the formulation of

the rule we adopt today will insure that

the conspirator’s waiver meets this

constitutional standard. By limiting

coconspirator waiver-by-misconduct to

those acts that were reasonably

foreseeable to each individual defendant,

the rule captures only those conspirators

that actually acquiesced either

explicitly or implicitly to the

misconduct.

Finally, the act of misconduct in this

case is not relevant to our waiver

inquiry. There is a possibility that the

specific intent requirement necessary to

support a conviction for first-degree

murder will be lost in of the application

of Pinkerton to the waiver context. Cf.

Clark v. Louisiana State Penitentiary,

694 F.2d 75, 78 (5th Cir. 1982) (express

ing concern that jury inappropriately

convicted conspirator of first-degree

murder under Pinkerton based solely

oncoconspirator’s intent). There is no

cause for concern, however, because (in

those cases that involve premeditated

murder) the specific intent requirement

is captured by the reasonable

foreseeability qualification. Waiver may

be imputed only to those conspirators to

whom it was reasonably foreseeable that

another conspirator would engage in

premeditated murder in furtherance and

within the scope of the conspiracy.

Accord United States v. Tse, 135 F.3d

200, 206-07 (1st Cir. 1998) ("If [the

conspirator] possessed the requisite

intent when he entered into the

conspiracy then all foreseeable crimes

committed by the conspiracy can be

attributed to that intent."). It is also

conceivable that some cases will involve

non-premeditated murder, in which

circumstance there is no specific intent

requirement./7 See Haas v. Abrahamson,

910 F.2d 384, 399 (7th Cir. 1990)

(internal citation omitted).

In sum, a defendant who joins a

conspiracy risks many things--e.g. the

admission of his coconspirator’s

statements at trial under Federal Rule of

Evidence 801(d)(2)(E), the potential

conviction for substantive offenses

committed in furtherance of the

conspiracy, and the inclusion of his

coconspirator’s acts in the computation

of his relevant conduct at sentencing. We

see no reason why imputed waiver should

not be one of these risks, particularly

when the waiver results from misconduct

designed to benefit the conspiracy’s

members. For these reasons and the others

expressed above, we follow the Tenth

Circuit’s decision in Cherry and hold

that the waiver-by-misconduct of one

conspirator may be imputed to another

conspirator if the misconduct was within

the scope and in furtherance of the

conspiracy, and was reasonably

foreseeable to him.

ii. The Cherry rule applied

However, we conclude that Marcus

Willis’s murder was not reasonably

foreseeable to Stephanie Johnson and

Anthony Thompson. There is no evidence

that these defendants knew or had reason

to know that an informant would be

murdered. Cf. United States v. Romero,

897 F.2d 47, 51-52 (2d Cir. 1990)

(holding that conspirators could be held

criminally liable for coconspirator’s

assault and attempted murder of a federal

officer "[g]iven the ammunition spread

around the apartment, the precautions

[two of the conspirators] took to ensure

the informants were neither armed nor

police, and the stationing of [one

conspirator] as an armed triggerman in

the closet."). As we noted in our

discussion of the First-Degree Murder

Guideline, there is no evidence that this

conspiracy had previously engaged in

murder or attempted murder. Therefore, we

find that Willis’s murder was not

reasonably foreseeable to either of these

defendants.

C. Apprendi Violations

All the defendants, except Johnson,

challenge their sentence based on the

rule established in Apprendi v. New

Jersey, 530 U.S. 466 (2000), that any

fact (other than a prior conviction) that

increases the sentence beyond the

statutory maximum must be submitted to

the jury and proven beyond a reasonable

doubt. The defendants claim that the

district court erred by failing to submit

drug quantity to the jury because drug

quantity determines the maximum sentence

under 18 U.S.C. sec. 841(a). See United

States v. Nance, 236 F.3d 820, 825 (7th

Cir. 2000) (holding that it is Apprendi

error not to submit drug quantity to the

jury). Because the defendants did not

object below, plain error is the

appropriate standard of review. Id. To

succeed on plain error review, the

defendants must show that a jury would

not have been able to find that the

conspiracy distributed over five kilos of

cocaine, the amount necessary to support

the sentences imposed by the court. See

id. at 826. Based on the evidence

presented at trial, the defendants cannot

make that showing.

The vast majority of the testimony from

which the jury could conclude that a

conspiracy existed among these defendants

involved transactions amounting to over

five kilos. For example, Terrence Pierce,

a buyer who was not indicted for his role

in the conspiracy, testified that he

witnessed Spradley purchase 15 kilos from

a supplier. Keith Cork, a coconspirator

who pled guilty, interpreted drug ledgers

found in Spradley’s trash to indicate

that, at one point, Spradley had 20 kilos

to sell, and he testified that the

conspiracy dealt in hundreds of kilos.

James Douglas, a customer, testified that

Boddie delivered more than 5 kilos to him

over the course of several years. This

kind of testimony connected each of the

defendants to the conspiracy.

In contrast, the testimony that

described transactions of less than five

kilos did not connect the defendants

together. For example, Dwayne Gibson,

another co-conspirator who pled guilty,

testified that he saw Boddie and Walker

rinsing ounces of crack in the sink at

Walker’s residence. This testimony could

support an inference of a conspiracy

between Boddie and Walker, but does not

connect Boddie and Walker to Spradley,

Thompson, or any other members of the

conspiracy charged here.

The only evidence supporting an

inference of conspiracy among each of the

defendants that describes a less-than-

five-kilo transaction was that of Officer

Neukam, relaying the uncorroborated

hearsay testimony of murdered informant

Marcus Willis. We think it unlikely that

the jury would have relied solely on this

evidence to convict the defendants of

conspiracy for two reasons. First,

uncorroborated hearsay testimony is not

particularly compelling. Second, and more

to the point, it is much more likely that

when determining that the conspiracy

trafficked in over five kilos, the jury

relied on the overwhelming evidence that

the conspiracy trafficked in over five

kilos, which included not only the

testimonial evidence described above but

additional evidence presented at trial of

conspiracy members’ purchases of

extravagant vehicles, homes, and

motorcycles (amounting to over $500,000)

as well as the seizure during the

pendency of the conspiracy of over

$350,000 that was never reclaimed.

Based on the totality of this evidence,

we believe that any reasonable jury would

have concluded that the conspiracy

distributed in excess of five kilos.

Therefore, the district court’s failure

to submit drug quantity to the jury was

not plain error worthy of reversal./8

D. Disclosure of Presentence Reports

The defendants assert that the district

court abused its discretion by refusing

to disclose the contents of several

presentence reports after reviewing the

sealed reports in camera. Relying on

United States v. Corbitt, 879 F.2d 224

(7th Cir. 1989), the district court

refused to disclose the reports because

the material contained within them was,

for the most part, cumulative and to the

extent that it was not cumulative, it was

not "absolutely essential to the

effective presentation of a defense"/9

and therefore not required in the

interests of justice. The defendants

disagree with the district court’s

approach, arguing that "[d]ue process and

the defendant[s’] right[s] to the

effective assistance of counsel compelled

the disclosure of the pre-sentence

reports," irrespective of whether the

material was cumulative or actually

necessary to the effective presentation

of their defense. They are wrong. We

squarely rejected this argument in United

States v. Dweck, 913 F.2d 365 (7th Cir.

1990), which is consistent with the

approach followed here by the district

court. The defendants have not

articulated, nor can we think of, any

reason to revisit that opinion./10

E. Severance

Defendants Johnson, Boddie, Thompson,

and Walker argue that the district court

erred by joining all the defendants and

their various charges under Rules 8(a)

and (b) of the Federal Rules of Criminal

Procedure and denying their Rule 14

motion to sever. They wanted to be tried

separately from Spradley, White, and

Jones, who were larger players in the

drug conspiracy and had been charged with

crimes relating to Marcus Willis’s

murder.

We find no error here. Joinder of the

murder-related charges and the drug

conspiracy was proper under Rule 8(a)

because Willis’s murder was charged as an

overt act of the conspiracy and,

therefore, part of the same act or trans

action constituting parts of a common

scheme or plan. See United States v.

Curry, 977 F.2d 1042, 1049 (7th Cir.

1992); Fed. R. Civ. P. 8(b). The fact

that each of the defendants were part of

a common conspiracy is also enough to

justify joinder under Rule 8(b), which

provides that "[t]wo or more defendants

may be charged in the same indictment or

information if they are alleged to have

participated in the same act or

transaction or in the same series of acts

or transactions constituting an offense

or offenses." See United States v.

Ramirez, 45 F.3d 1096, 1100 (7th Cir.

1995); United States v. Schweihs, 971

F.2d 1302, 1321 (7th Cir. 1992); Fed. R.

Civ. P. 8(b).

Regarding their Rule 14 misjoinder

challenge, the key question is whether

the jury was able to sort out the

evidence against Johnson, Boddie,

Thompson, and Walker, and fairly judge

their actions. See United States v.

Thornton, 197 F.3d 241, 255 (7th Cir.

1999). We believe that the jury was able

to do so; the district court instructed

the jury to give each defendant separate

consideration and we normally presume

that the jury followed the court’s

instruction. See United States v.

Johnson, 248 F.3d 655, 665 (7th Cir.

2001). Furthermore, it is clear that this

presumption proved to be true in this

case because the jury hung with respect

to Johnson on the drug conspiracy charge

and also acquitted several defendants not

part of this appeal. We cannot imagine

that a jury able to distinguish between

defendants for this purpose could not

also distinguish between the differing

levels of participation attributable to

each defendant. The jury also acquitted

Spradley, Jones, and White of the murder-

related charges, making it highly

unlikely that the remaining defendants

were prejudiced by the joinder of the

murder-related charges with the

conspiracy charge. Therefore, Johnson,

Boddie, Thompson, and Walker have not

shown that they were actually prejudiced

by the district court’s refusal to sever

and, accordingly, their challenge fails.

See United States v. Pigee, 197 F.3d 879,

891 (7th Cir. 1999).

F. Other Acts Evidence

The defendants argue that the district

court abused its discretion by admitting,

under the "intricately related" theory,

evidence of several violent acts alleged

to have been perpetrated upon or

committed by conspiracy members. Evidence

that is "so blended or connected that it

incidentally involves, explains the

circumstances surrounding, or tends to

prove any element of, the charged crime"

is excluded from Federal Rule of Evidence

404(b)’s prohibition against other acts

evidence admitted to show "action in

conformity therewith" and, therefore, may

be admitted at trial. United States v.

Bogan, 267 F.3d 614, 622 (7th Cir. 2001)

(internal citation omitted). So if the

evidence is "intricately related,"

"connected," or "intertwined" in this

manner, the district court did not abuse

its discretion by admitting the evidence.

See id.

The evidence challenged by the

defendants can be broken into two groups,

each of which we believe was properly

admitted. Group one includes evidence

relevant to the murder of Marcus Willis:

(a) the shooting of an unrelated person

at Spradley’s night club whose blood was

later found in White’s Yukon, the vehicle

in which Willis was murdered; and (b) the

state murder charges against Spradley and

White that were dismissed in favor of

federal prosecution. This evidence was

introduced to fill a conceptual void for

the jury. Evidence of the shooting at

Spradley’s night club explained why

another individual’s blood was found in

White’s Yukon. The jury would have been

left to question the source of the blood

had this evidence not been admitted,

because the blood did not match that of

any of the conspirators. The documents

pertaining to Spradley’s and White’s

state murder charges were introduced only

to clarify the timing of the events

surrounding the murder. Because the jury

acquitted Spradley and White of all

murder-related charges, we know the jury

did not improperly infer "action in

conformity therewith" from the state

murder charging documents. Therefore, we

conclude that this evidence was properly

admitted because it completed the story

of and provided context for the murder-

related charges. See United States v.

Jackson, 33 F.3d 886, 874 (7th Cir.

1994).

The second group of disputed evidence

includes evidence of several non-fatal

shootings and an alleged kidnaping. The

government introduced evidence that

Spradley’s girlfriend, who then served as

the safekeeper of the conspiracy’s

proceeds, had been shot by an attempted

robber. This evidence was introduced to

explain why Robert Johnson, a

coconspirator not part of this appeal,

took over the role of safekeeper,

providing background for the jury to

judge the credibility of this important

witness’s testimony. Other shootings were

alleged to have been committed by

conspiracy members in retaliation for the

attempted robbery of Spradley and a

purchaser’s failure to fully repay

Spradley for fronted cocaine, among other

reasons. For similar reasons, several

conspiracy members allegedly kidnaped a

supplier who failed to procure the

cocaine he promised./11 This kind of

evidence is intricately related to the

drug conspiracy charge because it shows

how the conspiracy conducted its

"business." See United States v. Diaz,

176 F.3d 52, 79 (7th Cir. 1999)

(affirming admission of evidence of

violence committed on behalf of drug

conspiracy because it explained the

mutual trust between coconspirators);

United States v. Molina, 75 F.3d 600, 602

(10th Cir. 1996) (affirming admission of

evidence of defendant’s repossession of

car at gunpoint because it showed his

organizational role in the drug

conspiracy); United States v. Rodrequez,

859 F.2d 1321, 1327 (8th Cir. 1988)

(affirming admission of evidence that

defendant beat a person with a pistol for

failure to repay a loan because it showed

how conspiracy operated)./12

Accordingly, the district court did not

abuse its discretion by admitting this

evidence.

As a fallback position, the defendants

argue that the evidence of violent acts

was unduly prejudicial under Federal Rule

of Evidence 403. They assert that the

cumulative impact of the evidence

improperly aroused the jury members’

emotions and encouraged them to conclude

that the defendants were bad characters

that must be guilty. We agree with the

general proposition that evidence of

kidnapings and shootings can be gruesome

and shocking, though we question whether

the scant evidence of violence presented

here fits that description. In any event,

we cannot imagine that this jury, which

acquitted Spradley, Jones, and White of

the murder-related charges and was

presented with abundant, non-violent

evidence of the drug conspiracy and each

defendant’s participation in it, decided

the case on an emotional basis rather

than upon the evidence presented. See

Bogan, 267 F.3d at 623; United States v.

Thomas, 155 F.3d 833, 836 (7th Cir. 1998)

(applying harmless error analysis to Rule

403 evidentiary question). The

defendants’ conclusory assertions to the

contrary do not provide us with any basis

for reversal given the great amount of

deference we must accord the district

court’s evidentiary ruling. See United

States v. Foster, 939 F.2d 445, 457 (7th

Cir. 1991).

G. Thompson’s Challenges

1. Drug conspiracy conviction

Anthony Thompson mounts the rarely

successful challenge to the sufficiency

of the evidence supporting his conspiracy

conviction. See Thornton, 197 F.3d at

253. We will affirm a jury conviction for

drug conspiracy unless the defendant can

show that no reasonable factfinder could

have found the essential elements--two or

more people agreed to commit the unlawful

act of drug trafficking, and the

defendant knowingly and intentionally

joined in that agreement--beyond a

reasonable doubt. See id. at 254

(internal citations omitted). Thompson

has not met this burden, but instead

waived his challenge by failing to

adequately argue his position.

There was no discussion of Thompson’s

challenge in oral argument, and

describing the arguments made in his

brief as unhelpful would be an

understatement. In five sentences without

any supporting factual details, Thompson

simply argues that the government failed

to present evidence that he knew of, was

a member of, or participated in, a drug

trafficking conspiracy. Further, he fails

to identify the elements necessary for

establishing his guilt (or innocence) or

to cite a single case or fact in support

of his argument.

What we find more problematic is

Thompson’s failure to discuss the

evidence that was presented against him,

rather than stating in a conclusory

manner that the government did not

present enough. He did not even file a

reply brief to challenge the evidence the

government laid out in its response

brief. Thompson’s argument is perfunctory

and therefore waived. See United States

v. McClellan, 165 F.3d 535, 550 (7th Cir.

1999).

Even if not waived, we would reject

Thompson’s challenge. The government’s

case against him included evidence that

he waited for shipments of 25 to 30 kilos

of cocaine with other conspirators, had

received at least 0.5 kilos from a

coconspirator on credit, and frequented

coconspirator Walker’s residence--where

cocaine was cooked into crack. This

evidence is sufficient to support his

conviction. See United States v.

Gutierrez, 978 F.2d 1463, 1469 (7th Cir.

1992) (holding that defendant’s

participating in one drug transaction

with alleged coconspirators was

sufficient to support conspiracy

conviction).

2. Attribution of drug quantity at

sentencing (sec. 2D1.1(a)(3))

At sentencing, the district court

attributed five kilograms of cocaine to

Thompson for his participation in the

conspiracy under U.S.S.G. sec.

2D1.1(a)(3). It based its conclusion on

the fact that Thompson was "involved in

the conspiracy for a significant period

of time, and [ ] the logical conclusion

[from that] is that he was personally in

receipt of the kilogram of cocaine more

than once." It is not clear from the

record what "kilogram" the district court

is referring to in its ruling. Maybe the

court meant to say "0.5 kilograms"; there

was evidence that Thompson received 0.5

kilos of cocaine from coconspirator Keith

Cork on more than one occasion. From the

face of its ruling, however, we cannot

tell. The usual recourse in this

situation is to remand for the district

court to make more explicit findings, see

United States v. Mojica, 984 F.2d 1426,

1445 (7th Cir. 1993), but that is not

necessary here. We can affirm despite the

court’s insufficient findings unless

Thompson can make a colorable argument

that there is no adequate basis in the

record to support the attribution. See

id.

Thompson cannot make a colorable

argument against attribution. The

conspiracy trafficked in well over five

kilos of cocaine and whatever portion of

this amount that was reasonably

foreseeable to Thompson is attributable

to him as relevant conduct. See United

States v. Strauser, 21 F.3d 194, 196-97

(7th Cir. 1994); U.S.S.G. sec. 1B1.3(a).

The district court’s finding that

Thompson was involved in the conspiracy

for a significant period of time

sufficiently supports the conclusion that

at least five kilos of the conspiracy’s

total was foreseeable to him. The court’s

finding is further supported by the

evidence that he waited along with

several coconspirators for cocaine

shipments of 25 to 30 kilos on more than

one occasion. Thompson has not argued

that his coconspirators’ quantities were

not foreseeable to him, therefore, the

district court’s attribution of five

kilos to Thompson at sentencing was not

error. See Mojica, 984 F.2d at 1445

(affirming attribution of 6.5 kilos based

primarily on evidence that defendant

participated in the delivery of an amount

representing about 20 percent of the

total quantity attributable to the

conspiracy).

3. Firearm possession guideline

(sec.2D1.1(b)(1))

Finally, Thompson argues that the

district court improperly applied the

Guideline enhancement for possession of a

firearm. For this Guideline to apply, it

is sufficient for the defendant to have

possessed the gun at any point during the

pendency of the conspiracy. See United

States v. Bjorkman, 270 F.3d 482, 494

(7th Cir. 2001). The district court based

its application, in part, on Thompson’s

state court conviction resulting from his

possession of a firearm found on him

during a search of one of the

conspiracy’s stash houses where drug

paraphernalia and other weapons were

found. This incidence of possession

occurred while the conspiracy was still

in operation. Therefore the district

court’s application was proper. See

Bjorkman, 270 F.3d at 494 (affirming

application involving similar facts);

United States v. Billops, 43 F.3d 281,

288 (7th Cir. 1994).

H. Johnson’s Money Laundering Conviction

Stephanie Johnson argues that the

Government did not prove beyond a

reasonable doubt that she knew that the

proceeds involved in the money laundering

transactions--which she admits she

completed--were from drug sales./13

Johnson is correct in asserting that her

convictions are invalid without

sufficient evidence that she knew the

proceeds derived from an illegal

activity, see United States v. Gracia,

272 F.3d 866, 873 (7th Cir. 2001)

(conspiracy to commit money laundering);

United States v. Rodriguez, 53 F.3d 1439,

1447 (7th Cir. 1995) (substantive money

laundering), but her argument that the

government’s evidence is insufficient is

frivolous.

The jury was presented with ample

evidence to support the knowledge element

of Johnson’s substantive money laundering

and conspiracy to commit money laundering

charges. A 1997 Ford Expedition was

purchased in Johnson’s name with

coconspirator Spradley’s funds in May of

1997, a period of time for which she does

not dispute that Spradley had no other

source of legitimate income. Drug ledgers

and paraphernalia, small amounts of

cocaine, close to $2,000 in cash, and

several loaded firearms were found in

Johnson’s bedroom along with Johnson’s

identification and pager bill during a

police search of the home she shared with

coconspirator Boddie on February 24,

1994. Two witnesses testified that she

observed drug transactions and even

engaged in drug trafficking herself, and

photographs of her with various

conspiracy members were introduced at

trial. Johnson argues that we should not

consider the evidence stated in the

previous sentence because she was

acquitted of her drug conspiracy charge.

But we do not know the basis for the

jury’s acquittal, see United States v.

Reyes, 270 F.3d 1158, 1168 (7th Cir.

2000) (listing possible reasons for

inconsistent verdicts), and the fact that

it convicted her of the money laundering

charges suggests that the acquittal was

not based on a belief that she was

unaware of the conspirators’ drug

activities. Accordingly, we conclude that

there is more than sufficient basis for

the jury’s verdict. See United States v.

Rodriguez, 53 F.3d 1439, 1447-48 (7th

Cir. 1995) (holding that it was

reasonable for a jury to conclude that

the defendant was aware of the illegal

source of the funds based on his

knowledge of and minimal participation in

drug transactions). Accord, United States

v. Atterson, 926 F.2d 649, 656 (7th Cir.

1991).

III. CONCLUSION

For the reasons stated above, we affirm

each of the defendants’ convictions and

remand for the resentencing of defendants

Jones and White.

FOOTNOTES

/1 The remaining counts, including count 4 for using

a firearm during a drug conspiracy and other

money laundering-related counts, are not relevant

to this appeal.

/2 The question of what conduct may support the

application of a cross reference to a defendant

is governed by the cross reference itself, within

the constraints set by the general relevant

conduct guideline--sec.1B1.3. See U.S.S.G.

sec.1B1.3(a); United States v. Masters, 978 F.2d

281, 284-85 (7th Cir. 1992).

/3 They also argue that the district court erred by

basing the Guideline calculation on conduct for

which they were acquitted. We rejected this

argument in United States v. Meyer, 157 F.3d

1067, 1081 (7th Cir. 1998) and the defendants

have not suggested why its holding should be

reconsidered.

/4 For example, White testified that he left his

sports utility vehicle at the Wagon Wheel Restau-

rant the night of the murder and picked it up

that next morning, undamaged. This statement is

inconsistent with the scientific evidence that

Willis was murdered in White’s sports utility

vehicle by 12:45 a.m. that morning. The court

concluded that White participated in the cover-up

because he often used the name "Demarco," the

same name used by the party who scheduled the

appointment to have the vehicle repaired at

Mobile Jamzz.

/5 Though technically a hearsay exception, Rule

804(b)(6) is really a waiver provision. Fed. R.

Evid. advisory committee note to subdivision

(b)(6) ("Rule 804(b)(6) has been added to provide

that a party forfeits the right to object on

hearsay grounds to the admission of a declarant’s

prior statement when the party’s deliberate

wrongdoing or acquiescence therein procured the

unavailability of the declarant as a witness.").

/6 For the same reasons, we believe that any error

in the admission of the statements on the grounds

that they lacked "particularized guarantees of

trustworthiness" as that term has been defined by

Ohio v. Roberts, 448 U.S. 56 (1980), and its

progeny, is harmless as well. As to the merits of

this challenge, the government has not told us

nor can we imagine what, in the circumstances

surrounding the making of Willis’s statement,

makes them inherently reliable. See United States

v. Becker, 230 F.3d 1224, 1230 (10th Cir. 2000).

/7 For example, a defendant who locked a witness in

a storehouse stocked with food and water not

knowing that the witness suffered from acute

asthma could not be held liable for first-degree

murder in the event that the witness died, but

could be deemed to have waived his objections

because he engaged in an act that resulted in the

witness’s unavailability.

/8 In any event, the defendants seem to have conced-

ed as much. They state in their joint brief’s

statement of facts that "[c]ocaine belonging to

Spradley was periodically delivered to [other

conspiracy members] in kilo and multi-kilo

amounts [and] was later distributed to [other co-

conspirators] for sale." They further admit to

the collection of over $350,000 in cocaine pro-

ceeds.

/9 As for impeachment evidence pertaining to cocon-

spirator Alfred Edmonson, the court held eviden-

tiary hearings, ordered the government to produce

documents, reviewed agent notes, and found no

undisclosed impeachment material. The only evi-

dence the defendants’ mention on appeal that they

hope to find in Edmonson’s materials duplicates

evidence offered at trial. Therefore the district

court properly refused to disclose them. See

United States v. Dweck, 913 F.2d 365, 371 (7th

Cir. 1990) (stating that cumulative impeachment

evidence does not violate Brady).

/10 We have also reviewed the sealed reports. See

United States v. Anderson, 724 F.2d 596, 599 (7th

Cir. 1984). Much of the information was duplici-

tive--reiterating portions of previously dis-

closed reports that were common to multiple

defendants. The portions of the reports that were

not made available to the defendants were also

not necessary for their defense.

/11 We use the term "allegedly" because the defen-

dants dispute the accuracy of the testimony

supporting these assertions and the jury was not

required to believe the testimony to convict

these defendants of drug conspiracy.

/12 One could also argue that this kind of evidence

helps to prove the existence of a drug conspiracy

under the "tools of the trade" theory recognized

by this court and others, though we do not

resolve this issue today. See, e.g., Diaz, 176 at

179; cf. United States v. Ramirez, 45 F.3d 1096,

1103 (7th Cir. 1995) (admitting evidence of a

pistol found in the defendant’s apartment on the

theory that weapons are tools of the drug traf-

ficking trade); United States v. Martinez, 938

F.2d 1078, 1083 (10th Cir. 1991) ("[I]n admitting

firearms and large amounts of cash, courts have

recognized the high level of violence that is not

uncommonly associated with the drug distribution

business."); id. at 1083-84 (collecting and

discussing similar cases).

/13 Johnson was convicted under sec.sec. 18 U.S.C.

1956(a)(1)(B)(i) and 1956(h). "Whoever, knowing

that the property involved in a financial trans-

action represents the proceeds of some form of

unlawful activity, conducts or attempts to con-

duct such a financial transaction which in fact

involves the proceeds of specified unlawful

activity . . . knowing that the transaction is

designed in whole or in part . . . to conceal or

disguise the nature, the location, the source,

the ownership, or the control of the proceeds of

specified unlawful activity" violates 18 U.S.C.

1956(a)(1)(B)(i). 18 U.S.C. 1956(h) provides that

"[a]ny person who conspires to commit any offense

defined in this section . . . shall be subject to

the same penalties as those proscribed for the

offense of the commission of which was the object

of the conspiracy."

Referenced Cases

  1. United States v. Antone R. White, A/K/A Tone
  2. United States v. Abraham Rodrequez v. Eduardo Gomez-Rodrigues
  3. Dale Matthew Olson v. Leslie Green
  4. United States v. Kevin O. Depriest and Steve Morrell
  5. United States v. Joseph W. Nowak
  6. United States v. Alan Masters and James D. Keating
  7. United States v. Antonio Mojica
  8. United States v. Mario Gracia
  9. Brian L. Haas v. Gordon Abrahamson
  10. Beelman Truck Company v. Chauffeurs
  11. United States v. Claude Anderson
  12. United States v. Wilton Johnson
  13. United States v. Pablo Ochoa, Jr.
  14. United States v. Isaac Dweck
  15. United States v. Edward Williams
  16. United States v. Leon Thomas
  17. United States of America v. Timothy Atterson
  18. United States of America v. Gordon Thornton
  19. United States v. Michael J. Corbitt
  20. United States v. Candelario Gutierrez
  21. United States v. Anthony Thomas
  22. United States v. Morris D. Hunt
  23. United States v. Timothy S. Curry
  24. United States v. Trevor Bjorkman
  25. United States v. Tiffany M. Billops and James A. Morning
  26. United States v. Derek Foster
  27. United States v. Charles Brown
  28. United States v. Otis L. McClellan and John D. Sargent
  29. United States v. Eric R. Meyer and Gordon O. Hoff, Sr.
  30. United States of America v. Michael Pigee
  31. United States v. Jose Sandoval-Curiel
  32. United States v. James T. Strauser and Sidney L. Newell
  33. United States v. Mark Bogan and Tony F. Calhoun
  34. United States v. Frank John Schweihs v. Anthony F. Daddino
  35. United States v. Jose Rodriguez
  36. United States v. Augustine Ramirez and Salvador Ramirez
  37. United States v. Jose Diaz
  38. United States v. Rafael Romero
  39. United States v. Gurmeet Singh Dhinsa
  40. United States v. Tyrone Walker
  41. United States of America v. Michelle Cherry Ladonna Gibbs Teresa Price
  42. United States v. Becker
  43. United States v. Ramon Medina Molina
  44. United States v. Jesus Martinez
  45. Apprendi v. New Jersey
  46. Snyder v. Massachusetts
  47. Ohio v. Roberts
  48. Johnson v. Zerbst
  49. United States v. White
  50. United States v. Billy Mayes v. L. C. Cook v. Ernest Frank Fowler
  51. United States v. Stephen Tse
  52. United States v. Michael Denard Brooks v. Johnny X. Williamson