United States v. Jwuan Moreland

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JWUAN L. M ORELAND, A NTRIO B. H AMMOND,

W ESLEY S. H AMMOND, SUSIE A. S MITH,

H ERBERT D. P HIPPS, D AVID J. P ITTS,

B RADLEY S. S HELTON, M ICHAEL D. W EIR, and

T IMOTHY B AILEY,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:10-cr-00007-JMS-CMM-7, -6, -1, -19,

-14, -4, -5, -27, -18—Jane E. Magnus-Stinson, Judge.

A RGUED S EPTEMBER 28, 2012—D ECIDED D ECEMBER 3, 2012

Before P OSNER, R OVNER, and SYKES, Circuit Judges.

P OSNER, Circuit Judge. The nine defendants were

charged with conspiracy to distribute large quantities of

methamphetamine and marijuana (two of them were

2 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

charged in addition with being felons in possession of

firearms). All were convicted by a jury and given long

prison sentences: Moreland 110 months, Smith 151,

Bailey 216, Pitts 420, and the others life. Only one de-

fendant, Shelton, was charged with a substantive

drug offense; this is a further illustration, if any is

needed, that conspiracy is indeed the prosecutors’ darling.

We listed the reasons in United States v. Nunez, 673

F.3d 661, 662-64 (7th Cir. 2012); see also Krulewitch v.

United States, 336 U.S. 440, 449, 457 (1949) (Jackson, J.,

concurring); United States v. Jones, 674 F.3d 88, 91 and n. 1

(1st Cir. 2012); United States v. Boidi, 568 F.3d 24, 29 (1st Cir.

2009); 2 Wayne R. LaFave, Substantive Criminal Law

§ 12.1(b), pp. 256-65 (2d ed. 2003)—though we add that a

prosecutor’s putting all his eggs in the conspiracy basket

can be a risky tactic, as we’ll see.

The details of the conspiracy are not important, so

we can proceed to the issues raised by the appellants.

We begin with the issues common to all of them. The

first concerns the government’s use of wiretap evidence.

That is permissible only if the government can show

that wiretapping was necessary to its investigation

because (so far as relates to this case) other investigative

methods, such as the use of undercover agents and infor-

mants, telephone records, pen registers, trap-and-trace

devices, the grand jury, physical searches, and physical

surveillance, would not yield essential evidence. 18

U.S.C. § 2518(1)(c). The government argues that without

the wiretaps the extent of the conspiracy—28 persons

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 3

11-3146, 11-3319, 11-3321, 11-3367

were charged ultimately—could not have been proved

and the leaders, who did not deal face to face with the

government’s informants or with the members of the

conspiracy whom the government was able to identify,

could not have been identified. See United States v. Ceballos,

302 F.3d 679, 683-84 (7th Cir. 2002); United States v.

Zambrana, 841 F.2d 1320, 1331 (7th Cir. 1988); United States

v. Foy, 641 F.3d 455, 464-65 (10th Cir. 2011); United States v.

Becton, 601 F.3d 588, 596 (D.C. Cir. 2010); United States v.

Jackson, 345 F.3d 638, 644-45 (8th Cir. 2003); United States v.

Rivera-Rosario, 300 F.3d 1, 19 (1st Cir. 2002). The govern-

ment supported its argument with detailed affidavits.

The defendants asked for an evidentiary hearing, but

the judge properly refused because they were unable to

specify any assertion in the government’s affidavits

that they could contest with evidence.

The defendants complain about the judge’s having

in advance of voir dire excused several potential jurors

who had notified the court that because of vacation

plans, business commitments, or employment obliga-

tions it would be a hardship for them to serve on a jury

in a case that might take a long time to try. In fact the

trial lasted three weeks. Prospective jurors were told at

the voir dire that it might last as long as five weeks, but

the jurors who before the voir dire asked to be excused

had been told only that they might be summoned for

jury duty at some time during the month in which

they would be on call. See United States District Court

for the Southern District of Indiana, “Federal Jury

4 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

Service Information: Stage 2: Notice of Jury Service,”

www.insd.uscourts.gov/Jury (visited Oct. 31, 2012).

Federal criminal defendants are entitled to be tried by

a jury “selected at random from a fair cross section of

the community,” 28 U.S.C. § 1861, a principle derived

by interpretation of the Sixth Amendment’s requirement

of an impartial jury. Berghuis v. Smith, 130 S. Ct. 1382,

1387 (2010). The defendants argue that excusing persons

who have vacation plans, business commitments, or

employment demands tilts the jury’s composition away

from the more affluent members of the community and so

makes jury selection unrepresentative. One doubts that

criminal defendants actually want to be judged by

members of the upper middle class, but in any event,

without some evidence of systematic exclusion of some

definable element of society (such as a racial or ethnic

group, but it could also be a group defined by income

or social class), the cross-section argument fails. Id. at

1388; Duren v. Missouri, 439 U.S. 357, 364-66 (1979);

United States v. Neighbors, 590 F.3d 485, 492 (7th Cir.

2009). Otherwise voir dire would become an interminable

sociological inquiry into how closely the social status of

the jury matched that of the adult population as a

whole from which the jurors had been drawn.

The defendants further argue that excluding busy

people from a jury violates the Jury Selection and Service

Act, 28 U.S.C. § 1862, which forbids exclusion from

juries on the basis of “economic status.” The concern

appears to have been with exclusion of the poor, H.R. Rep.

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 5

11-3146, 11-3319, 11-3321, 11-3367

No. 90-1076, 90th Cong., 2d Sess. (1968), reprinted at 1968

U.S.C.C.A.N. 1792, 1795, which is the opposite of the

complaint here; and anyway excusing a prospective

juror because of commitments is not exclusion on

account of economic status, though there may be a cor-

relation between affluence and commitments that are

incompatible with jury duty, depending on the expected

length of the trial. In any event, the defendants forfeited

the point by failing to comply with the procedures

for challenging compliance with the Act. See 28 U.S.C.

§ 1867; United States v. Phillips, 239 F.3d 829, 840-41 (7th

Cir. 2001).

The defendants also complain that excusing prospec-

tive jurors before the trial violated Fed. R. Crim. P. 43(a)(2),

which entitles the defendant to be present “at every

trial stage, including jury impanelment.” But issuance

of jury summonses, submission of responses to

those summonses in which the responders asked to be

excused, and action on those submissions—all before

the jury venire is created and the members of the venire

seated in the courtroom when the trial is called—precede

jury impanelment. Gomez v. United States, 490 U.S. 858,

874 (1989); United States v. Greer, 285 F.3d 158, 167-68

(2d Cir. 2002); Henderson v. Dugger, 925 F.2d 1309,

1316 (11th Cir. 1991); cf. Cohen v. Senkowski, 290 F.3d

485, 490 (2d Cir. 2002). Practicality dictates this conclu-

sion. For what if a recipient of a jury summons replied to

the court’s jury administrator that he was hospitalized

awaiting major surgery? Would the administrator’s

excusing him from jury service violate Rule 43? Anyway “a

6 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

general qualification of the jury is not a ‘critical stage’ in

the proceedings. The court was merely deciding which

jurors were to be excused for age, hardship, etc. It is

difficult to see what the defendant could have added to

this proceeding.” Henderson v. Dugger, supra, 925 F.2d at

1316.

Another issue common to all the defendants involves

expert testimony. A law enforcement officer was

permitted to testify as both a lay witness and an expert

witness, and the defendants complain that this was

improper. The witness, who was the DEA agent in

charge of the investigation of the conspiracy, was

called to testify about the meaning of code words used

in intercepted phone conversations of the defendants—

code words that he had learned the meaning of in the

course of investigating this very drug conspiracy and

code words commonly used in the drug trade that he

had learned the meaning of in other investigations.

About the first type of code word he was testifying from

personal knowledge obtained in the investigation,

and thus as a lay witness, Fed. R. Evid. 701, while about

the second type he was testifying as an expert on drug

codes, his expertise having derived from his involve-

ment in other drug investigations. Fed. R. Evid. 702. From

the investigation in this case he had learned that

the conspirators called methamphetamine “blue” (the

particular methamphetamine distributed by this con-

spiracy was tinted blue) and marijuana “green” or “scen-

ery.” But it was from past investigations that he

had learned that a “zipper” is an ounce of methamphet-

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 7

11-3146, 11-3319, 11-3321, 11-3367

amine and that “stepped on” means that a drug was cut

with adulterants to increase its weight and therefore (if

consumers don’t realize that its weight is attributable to

adulterants) its price. The agent testified about “zipper”

and “stepped on” as an expert witness, but as a lay

witness about the other code words used by the con-

spirators in this case.

The defendants argue that the jury may have been

overawed by the agent’s testimony about his long ex-

perience investigating drug conspiracies. The party

sponsoring an expert witness is entitled to lay his creden-

tials before the jury, but there is a danger that “the

jury might be smitten by an expert’s ‘aura of special

reliability’ and therefore give his factual testimony

undue weight.” United States v. York, 572 F.3d 415, 425

(7th Cir. 2008); see also United States v. Upton, 512 F.3d

394, 401 (7th Cir. 2008); United States v. Flores-De-Jesus,

569 F.3d 8, 20-21 (1st Cir. 2009). That was not a

realistic danger in this case. Had the agent been

testifying exclusively as a lay witness about the code

words he had learned the meaning of in the course of

his investigation of the defendants’ conspiracy, it

would not have been improper to introduce him to the

jury as an experienced investigator, rather than a

novice listening to taped conversations of drug conspira-

tors for the first time, any more than it is improper to

ask an eyewitness whether he has good vision.

“Seamlessly switching back-and-forth between ex-

pert and fact testimony does little to stem the risks associ-

8 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

ated with dual-role witnesses.” United States v. York,

supra, 572 F.3d at 426. Telling the jury that a witness is

both a lay witness and an expert witness and will be

alternating between the two roles is potentially confus-

ing—and unnecessary. The lawyer examining the witness

need only ask him the basis for his answer to a question,

and the witness will then explain whether it was

his investigation of the defendants’ conspiracy or his

general experience in decoding drug code. That tells

the jury what it needs to know in order to determine

how much weight to give the testimony and tells

opposing counsel what he needs to know in order to be

able to cross-examine the witness effectively. Using

terms like “lay witness” and “expert witness” and trying

to explain to the jury the difference between the two

types of witness is inessential and, it seems to us, ill

advised.

The judge, while allowing the prosecutor to elicit the

fact that the agent had been determined in previous

trials to be an expert on drug codes, told the jury that

“when you hear a witness give an opinion about

matters requiring special knowledge or skill, you

should judge this testimony in the same way that

you judge the testimony of any other witness. The fact

that such a person has given an opinion does not mean

you are required to accept it. Give the testimony

whatever weight you think it deserves, consider the

reasons for the opinion, the witness’s qualifications, and

all of the other evidence in the case.” That was an ap-

propriate instruction.

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 9

11-3146, 11-3319, 11-3321, 11-3367

We turn now to the issues specific to particular defen-

dants. We begin with Phipps’s complaint that he was

merely a buyer of meth from the conspiracy and not

a member of it. The government argues that since he

told his supplier, who was a member, that he was a

retail dealer, he must have agreed with the conspirators

to sell the drugs he bought from them to his retail cus-

tomers, and that by so agreeing he joined the conspiracy.

On three occasions (out of the six for which there is

evidence) the supplier “fronted” Phipps, that is, sold

to him on credit rather than for cash, implying trust

that the government argues would not have been

bestowed on someone who was not a member of the

conspiracy.

Phipps argues that he never agreed with the drug ring

to resell the drugs he bought from it even though both

parties knew that he probably would be reselling at least

some of them. He was a retail dealer. Reselling is

what retailers, legal or illegal, do. And wholesalers know

this. But knowledge of a buyer’s intention to commit

a crime with a supplier’s goods doesn’t imply an agree-

ment between the buyer and the seller that the buyer

do so. That knowledge, coupled with the supplier’s

having supplied the buyer with the means (in this case

a supply of drugs) of committing the illegal act of

retailing an illegal drug, could make him an aider and

abettor of the buyer’s crime but not, without more, a

conspirator with the buyer. United States v. Lechuga, 994

F.2d 346, 349 (7th Cir. 1993) (en banc) (plurality opinion);

United States v. Borelli, supra, 336 F.2d at 384; United

10 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940) (L. Hand,

J.); but cf. United States v. Boidi, supra, 568 F.3d at 29-30;

United States v. Parker, 554 F.3d 230, 236, 238-39 (2d Cir.

2009). Conspiracy is agreement, and it takes two to

agree. “A person who sells a gun knowing that the

buyer intends to murder someone may or may not be

an aider or abettor of the murder, but he is not a con-

spirator, because he and his buyer do not have an agree-

ment to murder anyone.” United States v. Lechuga, supra,

994 F.2d at 349. If Phipps’s supplier was indifferent to

Phipps’s intended use for the drugs, even if he knew that

it was to resell them, he is merely an aider and abettor

of Phipps’s retail sale of illegal drugs and there was

no conspiracy between them.

Not only is a sale by a wholesaler to a retailer con-

sistent with an arms’ length relationship rather than

being proof of a conspiracy to resell the drugs; repeated

transactions between a seller and a buyer are likewise

consistent with such a relationship. United States v. Colon,

549 F.3d 565, 568-69 (7th Cir. 2008) (“if you buy from Wal-

Mart your transactions will be highly regular and

utterly standardized, but there will be no mutual trust

suggestive of a relationship other than that of buyer and

seller”); United States v. Askew, 403 F.3d 496, 503 (7th Cir.

2005); United States v. Thomas, 150 F.3d 743, 745 (7th Cir.

1998) (per curiam). Neither selling in bulk nor repeat

transactions distinguish a conspiracy involving whole-

sale and retail sales from an arms’ length relationship

between a wholesaler and a retailer, either in the market

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 11

11-3146, 11-3319, 11-3321, 11-3367

for illegal drugs or in markets for legal products and

services.

In United States v. Nunez, supra, 673 F.3d at 664,

we suggested that the line might be drawn “between

‘contract’ conceived of as a purely arm’s-length relation-

ship and ‘conspiracy’ conceived of as a cooperative rela-

tionship—a relationship of mutual assistance.” See

also United States v. Speed, 656 F.3d 714, 719 (7th Cir.

2011); United States v. Townsend, 924 F.2d 1385, 1392

(7th Cir. 1991). Pursuing that line of thought we distin-

guished between a spot contract, illustrated by a trade

on a stock exchange, involving a minimal relationship

because there is only the single transaction and the

parties may not even be identified to each other, and

the aptly named “relational contract,” such as a long-

term requirements contract, which creates a continuing

relationship flexible enough to adapt to changes of cir-

cumstance that could not have been fully anticipated

when the contract was negotiated. See Charles J. Goetz &

Robert E. Scott, “Principles of Relational Contracts,” 67 Va.

L. Rev. 1089, 1092-95 (1981). So one way to understand

a drug conspiracy would be as a relational contract

among drug dealers. See United States v. Lechuga, supra,

994 F.2d at 349. But Phipps negotiated each meth pur-

chase from the drug ring separately. The ring did not

agree to supply Phipps with all his requirements of meth.

A variant or perhaps application of the relational-con-

tract approach is to infer conspiracy from a sale on credit

of illegal drugs in a quantity too great to be for personal

12 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

consumption. For then the wholesaler relies on his ex-

pectation that the retailer will repay the loan by com-

mitting the crime of selling the illegal drugs that he’s

acquired, unless he thinks the buyer may not resell the

drugs after all and instead repay the loan from some

other source of income; maybe he is a “bulk pur-

chaser . . . planning to throw a huge party at which he

would serve his guests cocaine.” United States v. Lechuga,

supra, 994 F.2d at 348. But that would be a very rare case.

Since the creditor of an illegal business cannot sue

his debtor, extending credit to him implies a significant

degree of trust by the creditor-seller and a commitment

by the debtor-buyer to resell the drugs so that he’ll

have revenue from which to repay his creditor. United

States v. Nunez, supra, 673 F.3d at 665. As explained

in United States v. Torres-Ramirez, 213 F.3d 978, 982 (7th

Cir. 2000), “a dealer who ‘fronts’ drugs to his customer

depends for payment on the success of the resale

venture, making it possible to infer that the dealer has

agreed to participate in it: the dealer becomes at least a

debt investor in the redistribution venture, if not an

equity investor.” The parties have agreed to the resale

of the drugs, and agreement to commit a criminal act is

a criminal conspiracy.

This approach, which infers conspiracy from wholesale

sales on credit, can be found in numerous cases in this

and other circuits (though usually it’s presented as an

instance in which two factors of a multifactor test for

inferring a drug conspiracy—wholesales and credit—are

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 13

11-3146, 11-3319, 11-3321, 11-3367

present and suffice to satisfy the test). See, e.g., United

States v. Vallar, 635 F.3d 271, 286-87 (7th Cir. 2011); United

States v. Johnson, 592 F.3d 749, 756 n. 5 (7th Cir.

2010); United States v. Avila, 557 F.3d 809, 816 (7th Cir.

2009); United States v. Colon, supra, 549 F.3d at 568-

70; United States v. Rock, 370 F.3d 712, 714-15 and n. 1 (7th

Cir. 2004); United States v. Ferguson, 35 F.3d 327, 331

(7th Cir. 1994); United States v. Kozinski, 16 F.3d 795, 808

(7th Cir. 1994); United States v. Lechuga, supra, 994 F.2d

at 349-50; United States v. Parker, supra, 554 F.3d at 238-39.

The approach is a stripped-down alternative to the

loose collections of factors explored in other conspiracy

cases; in United States v. Nunez, supra, 673 F.3d at 666,

we called it “a welcome simplification of doctrine” prefera-

ble to “trying to distinguish contract from conspiracy on

the basis of ‘plus’ factors that seem mostly makeweights,

such as mutual trust when it is just an inference from

sales on credit.” Our court and, again, other courts as

well have expressed concern with the looseness of

multifactor tests in other contexts. See Marrs v. Motorola,

Inc., 577 F.3d 783, 788-89 (7th Cir. 2009); Menard, Inc. v.

Commissioner, 560 F.3d 620, 622-23 (7th Cir. 2009); Monge v.

Maya Magazines, Inc., 688 F.3d 1164, 1171 (9th Cir. 2012);

Barton v. U.S. District Court, 410 F.3d 1104, 1108-09 (9th

Cir. 2005); USAir, Inc. v. Dept. of Transportation, 969 F.2d

1256, 1263 (D.C. Cir. 1992). They are to be avoided

if possible.

But the government, preferring a laundry list of factors

indicative of conspiracy, does not argue for what we’ll call

the Nunez-Torres approach. It does cite United States v.

14 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

Johnson, supra, 592 F.3d at 755-56, but fails to mention

footnote 5 of the opinion, the only place in it where

the Nunez-Torres approach is actually articulated.

The quantity of meth sold to Phipps over a four-month

period—five to twelve ounces—doesn’t by itself establish

that his supplier knew that Phipps would be reselling

the meth rather than consuming it himself and relied on

that knowledge in deciding to sell to him on credit. Each

ounce of meth would have supplied at least 75 doses.

United States v. Cruz, 680 F.3d 1261, 1262 (10th Cir. 2012);

United States v. Pruett, 501 F.3d 976, 985 (8th Cir. 2007),

vacated on other grounds, 552 U.S. 1241 (2008); United

States v. Ruiz, 412 F.3d 871, 878 (8th Cir. 2005). But that

means that five ounces of meth might yield only 375

doses, which is three a day over a four-month period (or

even fewer if some is stored for later use). There was

testimony that a meth addict consumes up to 1.5 grams

a day, which would mean that one ounce would supply

the addict’s needs for only 18 days, and five ounces for

90 days—three months rather than four. Phipps was a

dealer but also a serious meth addict, so it’s possible that

he could have consumed all the drugs he bought. He

sometimes fell behind on paying for the meth that he

obtained on credit, and his supplier, in contemplating

further drug loans, worried that Phipps might instead

consume the meth and that the payments from his con-

struction business (his day job) would fail to materialize or

be diverted by him to the purchase of additional drugs

for consumption. It’s possible therefore that Phipps was

just an unreliable purchaser from the conspiracy rather

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 15

11-3146, 11-3319, 11-3321, 11-3367

than a member of it. The government was skating on thin

ice by failing to charge him with a substantive drug

offense, for which the evidence was much stronger,

rather than just with conspiracy.

Nevertheless his conviction must stand. The jury

heard evidence that he indeed sold as well as consumed

meth that he bought from the drug ring in quantity on

credit. He was recorded asking his supplier for multiple

ounces of meth on credit and seeking to assuage the

supplier’s fears about his creditworthiness by assuring

him that he could resell it quickly to his customers, and

he mentioned having done so in the past. At trial he

testified that this was a ruse to obtain a large quantity

of meth for his personal use, but the jury didn’t have

to believe him.

The jury instructions were repetitive and confusing,

and included an open-ended list of factors from which

membership in a conspiracy could be inferred: “whether

the transactions involved large quantities of controlled

substances; whether the parties had a standardized way

of doing business over time; whether the parties had a

continuing relationship; whether a defendant had a

stake in the outcome of the conspiracy; whether the

parties had an understanding that the controlled sub-

stances would be resold; whether there existed a level

of mutual trust between the parties; [and] any other

factor you find relevant to your determination.” Notice

that the list includes wholesaling but not credit, except

that the last item in the list could include anything.

(This circuit’s recently amended pattern jury instruc-

16 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

tions disapprove the laundry-list approach to inferring

conspiracy. Seventh Circuit Pattern Jury Instructions 5.10A,

Committee Comment, pp. 73-74 (2012); see also United

States v. Johnson, supra, 592 F.3d at 758; United States v.

Colon, supra, 549 F.3d at 570-71.) But in addition the

judge instructed the jury that it could infer conspiracy

from “selling large quantities of controlled substances

on credit,” or “repeatedly selling controlled substances on

credit.” Of course Phipps did not sell on credit; he was

the buyer. But the jury could find that he knew that

his supplier would not sell him wholesale quantities

of drugs on credit unless he agreed to resell them, and

by thus agreeing with his supplier to commit a crime

(the resale of the illegal drugs) he became a conspirator.

Weir, a defendant who like Phipps was a retail dealer

prosecuted only for conspiracy, complains mainly about

the seizure of $6655 in cash found during a pat-down

search following a police stop of a car in which he was

a passenger, and subsequent testimony that the cash

was proceeds of a drug sale. The police had stopped the

car for a minor infraction—Weir’s failure to wear his

seatbelt—and discovered that the driver had no docu-

mentation of the car’s registration or insurance and only

an “open title” to the car, meaning that the previous

owner had by signing the title relinquished ownership.

And the license plates were registered to a different

vehicle. There was no indication of who the new owner

was, but it probably wasn’t the driver.

The police made Weir step out of the car and patted

him down—which was not improper, Arizona v. Johnson,

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 17

11-3146, 11-3319, 11-3321, 11-3367

555 U.S. 323, 331-32 (2009)—and discovered in one of his

pockets a wad of bills and seized it. At trial Weir’s girl-

friend (the driver, who testified as a government

witness in exchange for a lighter sentence) testified

that the bills were indeed proceeds of a sale of drugs

by him.

Weir argues that the seizure of the money violated the

Fourth Amendment. At the time of the stop he was not

suspected of any crime, and the mere fact of having

thousands of dollars in cash on one’s person has been

held not to justify a seizure of it as suspected contraband

or evidence of crime. United States v. Sokolow, 490 U.S. 1, 8-

9 (1989); United States v. $10,700.00 in U.S. Currency, 258

F.3d 215, 232 (3d Cir. 2001); United States v. $405,089.23

in U.S. Currency, 122 F.3d 1285, 1290 (9th Cir. 1997);

United States v. $67,220.00 in U.S. Currency, 957 F.2d 280,

285 (6th Cir. 1992). Law-abiding people sometimes carry

large amounts of cash on their person; this is thought to

be common enough to require evidence connecting the

cash to a crime to establish probable cause for seizing

the cash. See United States v. Hernandez-Rivas, 348 F.3d 595,

599 (7th Cir. 2003); United States v. Cervantes, 19 F.3d

1151, 1153 (7th Cir. 1994); United States v. Bustos-Torres,

396 F.3d 935, 944-45 (8th Cir. 2005).

Two members of the conspiracy—the girlfriend and the

supplier—testified that Weir was a drug dealer. But the

testimony about the $6655 found on him may have

carried special weight with the jury; that Weir had

been carrying that amount of money was an undenied

18 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

and undeniable fact rather than something the pair of

criminals who testified against him might have

fabricated to get lenient treatment by the authorities.

Whether the testimony about the cash was the

difference between conviction and acquittal of Weir is

very doubtful, however, and in any event his lawyer

failed to object. Because he did not object the govern-

ment had no opportunity to present evidence that the

seizure was a reasonable incident of the stop of the car.

The driver as we said had no proof of ownership, and

in fact the car had been reported stolen, as the police

discovered in the course of the traffic stop. They thus

had probable cause to believe that Weir was traveling

in a stolen car, and it was a reasonable surmise that

the large amount of cash found on him was related

in some way to the theft.

In any event, the seizure of the money was inevitable.

The police impounded the car, as they were entitled

to do since the driver lacked proof of owning it or

otherwise being authorized to be driving it, and after im-

pounding the car they conducted a routine, unexception-

able inventory search that revealed the presence in the

car of digital scales, commonly used by drug dealers.

The scales (which were introduced in evidence at the

trial) would have also given the police probable cause

to believe that the cash they had seized was indeed

drug proceeds.

As with Phipps, however, so with Weir, there is doubt

whether he was a member of the conspiracy. Like Phipps

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 19

11-3146, 11-3319, 11-3321, 11-3367

he bought an ounce or two of meth at a time, sometimes

paying in cash and sometimes on credit. He argues that

he “did not conspire with anyone. He bought drugs in

order to feed his own addiction. He sold some of those

same drugs that he bought to get money to buy the

drugs to feed his habit. . . . [H]e was not a conspirator.” But

as with Phipps, there was evidence that he purchased

wholesale quantities of drugs on credit, agreeing to

resell them in order to be able to repay his creditor.

Together with the other defendants who received

life sentences as repeat drug offenders, 21 U.S.C.

§ 841(b)(1)(A), Weir complains that his life sentence was

a cruel and unusual punishment. He argues that as a

drug addict he belongs in a treatment facility rather

than having to spend the rest of his life in prison. (The

other defendants who received life sentences acknowl-

edge controlling authority for the legality of their

sentences in such decisions as Ewing v. California, 538

U.S. 11, 25 (2003); Harmelin v. Michigan, 501 U.S. 957, 994-

95 (1991); United States v. Speed, 656 F.3d 714, 720 (7th

Cir. 2011), and United States v. Strahan, 565 F.3d 1047, 1052-

53 (7th Cir. 2009), and so reserve rather than argue their

objections to their sentences.)

The sentencing guidelines recognize that criminals

addicted to drugs are at risk for recidivism induced

by their need to feed their habit. But the guidelines’

suggested solution to the problem is for the judge to

extend the post-incarceration period of supervised release,

rather than to shorten the sentence. U.S.S.G. § 5H1.4;

20 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

United States v. Tazhib, 513 F.3d 692, 693-94 (7th Cir. 2008);

United States v. Williams, 937 F.2d 979, 983 (5th Cir.

1991), overruled on other grounds by United States v.

Lambert, 984 F.2d 658, 662 (5th Cir. 1993) (en banc). Concern

that addiction makes recidivism more likely is an

argument for treating the addiction rather than for

giving the defendant a shorter sentence, something

the guidelines therefore discourage. U.S.S.G. § 5H1.4

(“drug . . . dependence or abuse ordinarily is not a

reason for a downward departure”); United States v.

Ramirez-Gutierrez, 503 F.3d 643, 646-47 (7th Cir. 2007);

United States v. Wurzinger, 467 F.3d 649, 654 (7th Cir.

2006). It is rightly discouraged; anything that increases

the risk of recidivism argues for a longer sentence.

Defendant Moreland was convicted only of being a

felon in unauthorized possession of a gun. He complains

about the judge’s having mistakenly read to the jury a

set of instructions containing a copy of the indictment

that included a list of his felonies—despite his having

stipulated that he was a felon in order to keep the

details of his prior convictions from the jury. See Old

Chief v. United States, 519 U.S. 172 (1997).

The judge had given the jurors a copy of the jury instruc-

tions containing the indictment before the closing argu-

ment so that the lawyers could refer the jurors to

specific language and they could read along. Through a

slip-up the version of the jury instructions placed on the

jurors’ seats in the jury box when they convened to hear

the closing arguments contained the original indict-

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 21

11-3146, 11-3319, 11-3321, 11-3367

ment rather than a version from which the record of

Moreland’s prior felonies had been excised. The closing

arguments lasted two days. The trial recessed for the

weekend and when the jury reassembled on Monday

the judge read them the unredacted instructions. After

reading the portion of the indictment that recited More-

land’s prior felony convictions, the judge realized her

mistake, collected the instructions, and gave the jurors

new copies containing the redacted indictment to take

back with them to the jury room for their deliberations.

As the evidence of Moreland’s guilt was over-

whelming, the error in revealing his previous felonies to

the jury was harmless—and for the additional reason

that those felonies (multiple drug-related felonies,

resisting law enforcement, criminal recklessness, and

receipt of stolen property) did not mention guns. This

implies that had the jury been poisoned by learning of

Moreland’s crimes it would have convicted him of the

drug conspiracy rather than of the gun crime. Instead

it acquitted him of the former and convicted him of

the latter.

Defendant Antrio Hammond makes the same argu-

ment as Moreland, but unlike Moreland he was

convicted of participating in the drug conspiracy, and so

the listing in the indictment of his prior felonies, which

were drug-related, created a greater risk than in More-

land’s case that the jury may have convicted him

because he had demonstrated a propensity for com-

mitting drug crimes. But the evidence that he was a

22 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

central player in the conspiracy charged in this case was

overwhelming. The judge never read his prior felonies

to the jury, moreover, as she had done with Moreland’s

prior felonies, and there is no indication that any juror,

reading ahead in the indictment, discovered the nature

of Hammond’s prior felonies before the judge con-

fiscated the unredacted version of the indictment.

Hammond’s lawyer asked the judge to voir dire the

jury to determine whether any jurors had read that

version. The judge rightly refused, given the unlikelihood

that any juror had read ahead and discovered the

felonies and the concern that asking the jurors whether

they had done so might make them think that the judge

or the lawyers were trying to hide something impor-

tant—some key part of the indictment—from them. Cf.

United States v. Reynolds, 189 F.3d 521, 527-28 (7th Cir.

1999); United States v. Magana, 118 F.3d 1173, 1184-85

(7th Cir. 1997); United States v. Williams, 822 F.2d 1174,

1189 (D.C. Cir. 1987).

Bradley Shelton received a sentencing enhancement

for possessing a gun in connection with a drug offense.

U.S.S.G. § 2D1.1(b)(1). “Possession” and “connection” can

be tricky, see, e.g., United States v. Morris, 977 F.2d 617, 621-

23 (D.C. Cir. 1992), but not in this case. Shelton told

his sister—who had noticed police activity outside her

home, where two months earlier Shelton had delivered

meth to a customer—to conceal a gun along with drugs

in the false ceiling of her residence. (A false or dropped

ceiling is a secondary ceiling hung below the structural

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 23

11-3146, 11-3319, 11-3321, 11-3367

ceiling, and it creates a space in which an object can be

concealed, although that is not the usual purpose—the

usual purpose is to conceal pipes or other equipment,

improve acoustic balance or ventilation, or enhance a

room’s interior design.) Shelton owned the gun, had

access to the house and the gun, and thus possessed it

even though it wasn’t in his physical custody at all

times, United States v. Perez, 581 F.3d 539, 546 (7th Cir.

2009); United States v. Bothun, 424 F.3d 582, 586 (7th

Cir. 2005), just as one possesses one’s refrigerator even

when one is not in one’s kitchen. And Shelton

possessed the gun in connection with his role in the

drug conspiracy, of which he was a continuing

member, never having withdrawn from it. United States v.

Womack, 496 F.3d 791, 797-98 (7th Cir. 2007); United

States v. Corral, 324 F.3d 866, 873 (7th Cir. 2003);

United States v. Caicedo, 103 F.3d 410, 412 (5th Cir. 1997).

He attacks his life sentence on the ground that the

prior drug felonies that qualified him for such a sentence

were not separate criminal episodes, as 21 U.S.C.

§ 841(b)(1)(A) has been glossed to require. United States

v. Arreola-Castillo, 539 F.3d 700, 705 (7th Cir. 2008);

United States v. Beckstrom, 647 F.3d 1012, 1017 (10th Cir.

2011); United States v. Powell, 404 F.3d 678, 682 (2d Cir.

2005); United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997);

United States v. Rice, 43 F.3d 601, 605-06 (11th Cir. 1995).

The first felony was the sale of Xanax to a confidential

informant, the second, a day later, possession of marijuana

found when Shelton was arrested for the Xanax sale, and

the third, six days later, also possession of marijuana, this

24 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

time while he was in jail. The first and second offenses

clearly were separate from each other; they involved

different drugs possessed on different days. See, e.g.,

United States v. Beckstrom, supra, 647 F.3d at 1018; United

States v. Fink, 499 F.3d 81, 88 (1st Cir. 2007); United States

v. Gray, 152 F.3d 816, 821 (8th Cir. 1998). But the

second and third offenses—the marijuana offenses—may

not have been separate. The marijuana found in his cell

may have been on his person when he was arrested for

selling Xanax and may just have been missed in the

initial search. He contends that had the police done a

more careful search when they arrested him they

would have found it all, and so there would have been

only one offense of possession of marijuana. A careless

police search should not increase a defendant’s sentence.

But if the second marijuana offense is therefore ignored,

Shelton still has two prior drug felonies (one for selling

Xanax, one for possessing marijuana), and 21 U.S.C.

§ 841(b)(1)(A) imposes a mandatory life sentence on

a defendant who has been convicted of two or more

previous drug felonies.

Finally, defendant Smith, given a sentencing discount

as a minor participant, argues that she qualified as a

minimal participant, which by knocking two additional

levels off her base offense level would have reduced her

guidelines range of 151-188 months to 121-151 months. See

U.S.S.G. § 3B1.2, Application Notes 4 and 5. The judge

sentenced her at the bottom of the minor-participant

range, that is, to 151 months. Her argument for a minimal-

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 25

11-3146, 11-3319, 11-3321, 11-3367

participant discount is frivolous; the minor-participant

discount that she received was a gift—and quite a

large one, as it effectively halved her guidelines range,

from 292-365 months to 151-188 months—to which she

was not entitled (for she was in fact a major participant),

although the government has not cross-appealed.

A minimal participant is a “defendant who [is] plainly

among the least culpable of those involved in the conduct

of a group.” U.S.S.G. § 3B1.2, Application Note 4. Smith

stored large quantities of meth and money at her

residence (a police search recovered nearly $81,000 from

a safe) and had firearms to defend the stash in aid of

the drug conspiracy of her sons Wesley and Antrio

Hammond. She assisted them in deliveries of meth and

the collection of sale proceeds. She discussed with

Wesley in jail delivering guns to enable the conspiracy to

intimidate a rival gang. She relayed to him news that

Timothy Bailey, a co-conspirator, had been arrested, and

she warned Wesley not to try to call Bailey on his

cellphone because the police probably had seized

the cellphone and would answer it if it rang.

Smith asks for mercy mainly because of the family

relationship, though she also cites her age (59) and ill

health (one of her kidneys has been removed because of

cancer). United States v. Powell, 576 F.3d 482, 499 (7th Cir.

2009); United States v. Theunick, 651 F.3d 578, 592 (6th Cir.

2011). She lacks a compelling case under either the guide-

lines or the sentencing factors in 18 U.S.C. § 3553(a)

for leniency on either count. The guidelines provide

26 Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696,

11-3146, 11-3319, 11-3321, 11-3367

a discount for “familial relationships,” U.S.S.G.

§ 2D1.1(b)(15)(A), but it is limited to defendants

who receive a minimal-participant discount, as she did

not; and such a discount is anyway inappropriate for a

mother actively engaged with her adult sons in felonious

conspiracies. As for age and infirmity (see 18 U.S.C.

§ 3553(a)(2)(D); U.S.S.G. §§ 5H1.1, 5H1.4), age 59 is not

elderly in our society; the elderly do not have a license

to commit crime, United States v. Johnson, 685 F.3d 660,

662 (7th Cir. 2012); and adequate medical care is

available in federal prisons. United States v. Theunick, supra,

651 F.3d at 592.

The judgments are

A FFIRMED.

12-3-12