GARZA, Circuit Judge.
John Shorter and Jerre Tanksley were convicted for offenses related to their membership in a cocaine distribution conspiracy.
John Shorter and Verlyn Roux, according to Roux's testimony at trial, agreed to conduct a cocaine business in Fort Wayne, Indiana. Shorter functioned as the supplier, and Roux fronted the cocaine to distributors, collected the money, and forwarded it to Shorter.
Roux met Tony Davidson and Jerre Tanksley and started fronting them cocaine. Tanksley's wife, Camilla Tanksley, helped him sell the cocaine supplied by Roux. Roux informed Davidson and Tanksley that Shorter was the supplier, and, when Shorter arrived in Fort Wayne, introduced Davidson and Tanksley to Shorter. Thereafter, if Davidson or Tanksley could not get cocaine from Roux, they obtained it from Shorter.
Shorter supplied Roux with cocaine by personally transporting it or sending it Federal Express from California. Shorter then picked up the proceeds from Roux in Fort Wayne or had Davidson or Roux wire the money to California via Western Union.
When Davidson was arrested for narcotics offenses, Tanksley persuaded his wife, Camilla, to use her house as bond for Davidson, telling her that he knew Davidson and his wife through Shorter. Roux later exited the distribution network for a period of time, during which Shorter supplied Davidson directly and Tanksley through Davidson. When Davidson exited the network for a short time, his wife, Francetta Davidson, sold cocaine for Shorter. Francetta showed Direcia Martin, Shorter's girlfriend, how to cut up the crack cocaine and told her that Shorter was sending the cocaine supply from California. Davidson returned to Fort Wayne and restarted selling cocaine for Shorter, but Martin handled the money and deliveries to the Davidsons. Roux also rejoined the network.
Shorter, Tanksley, and Roux were indicted on the basis of their cocaine distribution activities. The grand jury charged Shorter with 1) conspiracy to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846; 2) conspiracy to conduct interstate wire transfers involving proceeds of the distribution of crack cocaine, in violation of 18 U.S.C. § 371; and 3) conducting an interstate wire transfer involving proceeds of the distribution of crack cocaine, in violation of 18 U.S.C. § 1956(a)(1)(A)(i). The grand jury charged Roux with the conspiracy and money laundering counts listed above, and it charged Tanksley with the cocaine conspiracy count and perjury, in violation of 18 U.S.C. § 1623(a).
Shorter filed a motion for severance of his trial from that of Roux and Tanksley, which the district court denied. A month later, Roux pled guilty pursuant to a plea agreement. A few days before trial, Shorter wrote a letter to Roux suggesting that Roux should not implicate Shorter when he testified. The letter included statements such as "don't end my life by saying what they think is true," "let me fight them without you helping them," "If you don't remember everything or if you don't see things that way they do what can they do," "you can tell them what you know without giving them nothing," "you can help me by not hurting me," and "we are all hoping that you haven't given a
Shorter renewed his motion for severance before trial, which the district court denied. On the second day of trial, Tanksley pled guilty to the cocaine conspiracy and perjury counts. At the close of the Government's case, Shorter moved for a judgment of acquittal, which the district court denied.
At the first sentencing hearing, the district court determined that Shorter was responsible for 2.15 kilograms of crack cocaine and that he was eligible for a four-level enhancement under § 3B1.1(a) of the Sentencing Guidelines as an organizer or leader of criminal activity involving five or more participants, see United States Sentencing Commission, Guidelines Manual § 3B1.1(a) (Nov. 1992). Two months later, Tanksley's counsel moved to withdraw. At the second sentencing hearing, the district court, without ruling on the motion to withdraw, attributed 1,800 grams of cocaine base to Tanksley, assessed a two-level enhancement for the perjury, and rejected Tanksley's argument that his offense level should be reduced because he accepted responsibility for his actions and because he was only a minor participant in the conspiracy.
Shorter was ultimately sentenced to 360 months' imprisonment and fined $10,000.
Tanksley contends that he should be resentenced because his attorney had a conflict of interest that the district court failed to address. "A criminal defendant is entitled to counsel whose undivided loyalties lie with his client." United States v. Ellison, 798 F.2d 1102, 1107 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987); see also Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981) (noting a "right to representation that is free from conflicts of interest"); United States v. Ziegenhagen, 890 F.2d 937, 939 (7th Cir.1989) (noting that Sixth Amendment "guarantee includes representation that is free of any conflict of interest with counsel").
At sentencing, Tanksley's counsel stated that Tanksley had accused her of forcing him to plead guilty.
Because the district court failed to conduct a hearing and determine the impact of the conflict of interest, see Dently v. Lane, 665 F.2d 113, 117 (7th Cir.1981) (requiring evidentiary hearing on issue of conflict of interest), we will presume that the conflict prejudiced Tanksley if he has shown a possibility of prejudice. Ziegenhagen, 890 F.2d at 940 (explaining that reviewing court will presume prejudice where defendant shows possible prejudice and trial court fails to conduct inquiry into conflict).
Shorter contends that the evidence was insufficient to support his cocaine conspiracy
"It is the nature and scope of the agreement that is the determinative factor in distinguishing between single and multiple conspiracies." Sababu, 891 F.2d at 1322; United States v. Varelli, 407 F.2d 735, 741 (7th Cir.1969) ("The agreement is the primary element of a conspiracy."). There is a distinction between several similar purposes and one common purpose. Kotteakos v. United States, 328 U.S. 750, 769, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946) (finding error where the trial court "confuse[d] the common purpose of a single enterprise with the several, though similar, purposes of numerous separate adventures of like character"). "If the defendants joined together to further one common design or purpose, a single conspiracy exists." United States v. Marshall, 985 F.2d 901, 907 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993).
The evidence indicated that Shorter supplied cocaine to Roux, and Roux fronted it to Davidson, Tanksley, and others. Roux testified that both he and Shorter supplied Tanksley with cocaine. Camilla Tanksley testified that Shorter and Roux criticized Tanksley's handling of the proceeds of his sales. Camilla also distributed cocaine for her husband, and used her house as bond for Davidson when he was arrested. Davidson testified that after Roux left Fort Wayne for a period of time, Davidson took his place in the organization. Davidson also testified that Shorter delivered crack cocaine directly to Tanksley or he directed Davidson to deliver the cocaine. When Davidson left Fort Wayne temporarily, his wife and Direcia Martin handled his functions in the organization. Martin testified that Shorter asked her to take over handling the money from the sales of crack cocaine.
Shorter challenges the jury's finding on several grounds. First, he argues that the "first" conspiracy ended when Roux left Fort Wayne. Although one common participant is not necessarily enough to prove a
Because the Government proved a single conspiracy, the following of Shorter's additional claims have no merit: 1) That a variance existed between the indictment and the evidence,
Shorter also argues that, even if a single conspiracy was proven, the district court should have instructed the jury on multiple conspiracies as a theory of the defense. A court's rejection of an insufficiency claim does not necessarily rule out its consideration of a defendant's claim that the court should have instructed about multiple conspiracies if that theory had some support in the evidence presented at trial. United States v. Briscoe, 896 F.2d 1476, 1512-13 (7th Cir.), cert. denied, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); Marshall, 985 F.2d at 907 ("The issue is whether the evidence warranted an instruction on multiple conspiracies."). Shorter did not tender a multiple conspiracy instruction; therefore, we review his claim only for plain error. United States v. Johnson, 32 F.3d 265 (7th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1172, 130 L.Ed.2d 1125 (1995); cf. United States v. Olano, ___ U.S. ___, ___, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) ("`Plain' is synonymous with `clear' or, equivalently, `obvious.'").
After reviewing the record, we find no support for Shorter's multiple conspiracy theory. All the evidence pertained to the single cocaine distribution conspiracy for which Shorter was convicted. Finding support for multiple conspiracies requires us to take a warped view of the evidence, and we decline to perform such a contortionist exercise. See Briscoe, 896 F.2d at 1514 (rejecting jury instruction challenge because multiple conspiracies not supported in record and "based on a tortured view of the evidence presented at trial").
Indeed, even if the evidence supported a multiple conspiracy instruction, the failure to give such an instruction does not constitute plain error for two reasons. First, the conspiracy instruction given explicitly required the jury to find that Shorter was guilty of the conspiracy charged and not another.
Shorter also challenges other aspects of his trial and conviction. Shorter first contends that the evidence was insufficient to support his conviction on the money laundering counts. To obtain a conviction for money laundering under 18 U.S.C. § 1956(a)(1), the government was required to prove that Shorter:
United States v. Brown, 944 F.2d 1377, 1387 (7th Cir.1991); see also United States v. Jackson, 935 F.2d 832, 838 (7th Cir.1991) (enumerating elements of § 1956(a)(1)). Shorter challenges the intent elements, that is, that he knew that the source of the money was cocaine sales.
Roux testified that he either gave the proceeds of the crack cocaine sales directly to Shorter or sent it by Western Union as directed by Shorter. Western Union records show several wire transfers by Roux to Shorter. Roux also testified that Shorter supplied the cocaine to Roux and others. Because this evidence supports the inference that Shorter knew of the illegal source of the funds, it was sufficient to sustain the conviction. See Brown, 944 F.2d at 1387-88 (rejecting challenge to sufficiency because evidence supported inference that defendant knew source of proceeds was drug transactions); Jackson, 935 F.2d at 839-40 (explaining that statute requires only that government
Next, Shorter argues that the district court erred in refusing to grant him a severance.
United States v. Echeles, 352 F.2d 892, 896 (7th Cir.1965) (citations omitted). "There is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, ___ U.S. ___, ___, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993).
Shorter argues that the district court should have granted him a severance because his codefendant, Tanksley, was charged with perjury. He contends that the jury could have inferred that he also was a liar. Shorter appears to argue first that perjury per se should be tried in a separate trial. Perjury counts may be tried with other offenses, however, especially if the perjury relates to the conduct underlying the other charges. United States v. Curry, 977 F.2d 1042, 1050 (7th Cir.1992) ("[P]erjury counts may be considered part of the same series of acts or transactions as the underlying conduct which was misrepresented."), cert. denied, ___ U.S. ___, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993); United States v. Braasch, 505 F.2d 139, 150 (7th Cir.1974) (upholding trial of perjury counts with conspiracy counts), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975); United States v. Isaacs, 493 F.2d 1124, 1160 (7th Cir.1973) (approving trial of perjury count and conspiracy counts in same proceeding), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974).
Shorter next argues that the district court should have ordered a mistrial when Tanksley plead guilty, and that the district court's cautionary instruction was insufficient to dispel the prejudice created by Tanksley's guilty plea. Because Shorter failed to object at trial, we review the district court's decision for plain error. United States v. Lashmett, 965 F.2d 179, 185 (7th Cir.1992). "[A] co-defendant's entry of a guilty plea during trial is not in and of itself prejudicial to the remaining defendant(s)." United States v. Martin, 964 F.2d 714, 717 (7th Cir.1992); see also United States v. McGrath, 811 F.2d 1022, 1024 (7th Cir.1987) (allowing introduction of evidence of codefendant's guilty plea and explaining that "a co-conspirator's or co-defendant's entry of a guilty plea, even on occasion before a jury, was not prejudicial"). Moreover, evidence of the guilty plea is admissible,
"At the appellate level, an examination of the lower court's cautionary instructions concerning the use of the testimony and the evidence of the guilty plea is the key to determining whether a constitutional violation occurred." Thomas, 774 F.2d at 809. Although the trial court did give a cautionary instruction at the end of the evidence, see Martin, 964 F.2d at 717 (discussing cautionary instruction that jury may not consider codefendant's plea as evidence against defendant), Shorter argues that the trial court plainly erred in not giving an interim instruction immediately after the jury learned of Tanksley's guilty plea. We review the district court's actions for plain error because Shorter did not object at trial. Oxford, 735 F.2d at 280 (reviewing prejudice claim for plain error because defendant made no objection at trial, and explaining that "[p]lain error appears only when the evidence is extremely damaging, the need for the instruction is obvious, and the failure to give it is so prejudicial as to affect the substantial rights of the accused"); cf. United States v. Olano, ___ U.S. ___, ___, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) ("`Plain' is synonymous with `clear' or, equivalently, `obvious.'"). A failure to make an interim instruction is not per se plain error. Oxford, 735 F.2d at 280 (refusing to require interim instructions in all cases, but instead viewing necessity of interim instructions on the facts of each case). Moreover, we assume that any cautionary instruction cures potential prejudice, absent a showing otherwise. Martin, 964 F.2d at 717.
Shorter next argues that the district court should not have admitted a letter written by him and sent to Roux. He contends that the letter was inadmissible hearsay or that the prejudicial effect substantially outweighed the letter's probative value.
The letter was admissible on two grounds. First, it qualifies as an admission and is thus not hearsay. United States v. Porter, 544 F.2d 936, 938 (8th Cir.1976) (admitting non-custodial statements by defendant as admissions of a party-opponent because Fifth Amendment privilege not implicated). Second, it was independently admissible as evidence of Shorter's consciousness of guilt. See United States v. Marks, 816 F.2d 1207, 1212 (7th Cir.1987) (commenting on long tradition of admitting attempts to influence a prosecution witness as indicating defendant's consciousness of the weakness of his case); cf. United States v. Hackett, 638 F.2d 1179, 1186-87 (9th Cir.1980) (admitting false exculpatory statements not for their truth but merely for the fact that they were made, thereby implying consciousness of guilt), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).
Moreover, even if the district court erred, it was harmless error. As prejudice, Shorter argues that the letter would lead a reasonable juror to infer "facts not otherwise proven by the Government," that is, the existence of the single cocaine conspiracy alleged in the indictment. Given that we affirm the jury's finding of a single cocaine conspiracy, Shorter's claim of prejudice fails.
Shorter also challenges his sentence on various grounds. First, he challenges the district court's determination of the quantity of cocaine base attributed to him for sentencing purposes. We review this factual determination for clear error. United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994) (noting that reviewing court must affirm unless definitely and firmly convinced that a mistake has been made). "The government bears the burden of establishing the quantity of drugs by a preponderance of the evidence." Id.
The evidence at trial established that Shorter was the supplier for the distribution network. Accordingly, the district court held Shorter responsible for the actions of his coconspirators as well as his own. The district court calculated the amount of money Shorter received in California by Western Union wires and used an estimated price for the crack cocaine to estimate the quantity of
Shorter contends that the district court erred in classifying the entire quantity as cocaine base and not at least partially as cocaine powder. The evidence indicated that Shorter either delivered the cocaine in crack form or that the other participants converted it to crack form prior to selling it. The evidence also indicated that Shorter knew of or reasonably should have foreseen the conversion to crack form. Roux, Davidson, Tanksley, Martin, and others testified that Shorter was the source of the crack cocaine. Moreover, there is no evidence that the participants who actually sold the drugs sold anything but crack cocaine. Because we hold Shorter responsible for the actions of his coconspirators and the quantity calculated was based on proceeds from the crack cocaine sales, the district court classified the result of that calculation as cocaine base and not cocaine powder.
Shorter lastly argues that the district court should have applied the 1988 Sentencing Guidelines and not the 1992 edition.
Determining whether an amended guideline can violate the Ex Post Facto Clause turns on whether the criminal conduct extended past the effective date of the amendment. Kopshever, 6 F.3d at 1221. The evidence revealed that Shorter's involvement in the conspiracy extended well after the 1989 effective date of the amendments incorporated in the 1992 Guidelines. Consequently, their application to Shorter does not violate the Ex Post Facto Clause, and the district court made no error.
For the foregoing reasons, we AFFIRM the conviction and sentence of Shorter, VACATE Tanksley's sentence, and REMAND Tanksley's case for resentencing.
We note also that both Tanksley and Shorter argued that the Guidelines violated the Fifth Amendment's guarantee of equal protection because the higher sentencing ranges for cocaine base versus cocaine powder impact blacks more severely than whites. Their argument has no merit; this Court and every other Circuit that has addressed this argument has rejected it. See, e.g., United States v. Scott, 19 F.3d 1238, 1246 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994); United States v. Chandler, 996 F.2d 917, 918 (7th Cir.1993); United States v. Lawrence, 951 F.2d 751 (7th Cir.1991); see also United States v. Clary, 34 F.3d 709 (8th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1172, 130 L.Ed.2d 1126 (1995); United States v. Stevens, 19 F.3d 93, 97 (2d Cir.1994); United States v. Frazier, 981 F.2d 92, 95 (3d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 1661, 123 L.Ed.2d 279 (1993); United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 2754, 129 L.Ed.2d 871 (1994); United States v. Galloway, 951 F.2d 64, 65-66 (5th Cir.1992); United States v. Reece, 994 F.2d 277, 278-79 (6th Cir.1993); United States v. Harding, 971 F.2d 410, 413-14 (9th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1025, 122 L.Ed.2d 170 (1993); United States v. Turner, 928 F.2d 956, 959-60 (10th Cir.), cert. denied, 502 U.S. 881, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991); United States v. Solomon, 848 F.2d 156, 157-58 (11th Cir.1988); United States v. Cyrus, 890 F.2d 1245, 1248 (D.C.Cir.1989).
In several other cases, we have approved of instructions similar to those given in this case. See, e.g., Nava-Salazar, 30 F.3d at 797 (affirming district court's refusal to instruct the jury not to consider unrelated conspiracies because instructions properly explained how jury should evaluate and apply conspiracy evidence); United States v. Soto-Rodriguez, 7 F.3d 96, 101 (7th Cir.1993) (affirming conviction when instructions sufficiently instruct the jury that it must find the defendant a member of the conspiracy charged and not another); Severson, 3 F.3d at 1011 (rejecting multiple conspiracy "theory of defense instruction" argument because "[t]he jury was instructed on all the elements of the crime charged in the indictment, and was also instructed that the evidence must be weighed against each individual defendant, and that each defendant was guilty only if the evidence proved beyond a reasonable doubt that he committed the crime"); United States v. Auerbach, 913 F.2d 407, 417 (7th Cir.1990) (explaining that instructions similar to these are "sufficient to inform the jury that, in order to convict the defendant of an alleged conspiracy, it must find that he was a member of that conspiracy and not another"); Briscoe, 896 F.2d at 1514 (rejecting jury instruction argument concerning multiple conspiracies because instructions clearly required jury to first find single conspiracy before considering evidence concerning one defendant against other defendants).
Shorter also contends that the district court should have applied a base sentencing level for cocaine powder and not cocaine base. The evidence indicated that the purpose of the conspiracy was to sell cocaine in its base form. Because we have concluded above that the district court properly attributed all 2.15 kilograms to Shorter as cocaine base, the district court did not err in using the sentencing levels for cocaine base.