United States v. Jones

56 F.4th 455

UNITED STATES of America, Plaintiff-Appellee,

v.Thomas JONES, et al., Defendant-Appellants.

Nos. 20-1405

20-1442

20-2112

20-2304

20-2420

20-2458

20-2462

20-2498

20-2499

20-3266

& 21-1002

United States Court of Appeals, Seventh Circuit.

Argued April 20, 2022

Decided December 22, 2022

Brian L. Reitz, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee in Nos. 20-1405, 20-1442, 21-1002.

Michelle P. Brady, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee in Nos. 20-2112, 20-2304, 20-2420, 20-2458, 20-2462, 20-2498, 20-2499, 20-3266.

Johanna M. Christiansen, Thomas W. Patton, Attorneys, Office of the Federal Public Defender, for Defendant-Appellant Thomas Jones in No. 20-1405.

Amir Mohabbat, Attorney, Chicagoland & Suburban Law Firm, P.C., for Defendant-Appellant Derrick Owens in No. 20-1442.

Jeffrey A. Baldwin, Tyler D. Helmond, Sr., Esq., Attorneys, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, IN, for Defendant-Appellant Antwon Abbott in No. 20-2112.

Charles Chrystal Hayes, Jane Corbett Hinton Ruemmele, Attorneys, Hayes Ruemmele LLC, Indianapolis, IN, for Defendant-Appellant Michael Jones in No. 20-2304.

Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Defendant-Appellant Reggie Balentine in No. 20-2420.

Michelle L. Jacobs, Vanessa K. Eisenmann, Attorneys, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant - Appellant Perry Jones in No. 20-2458.

Kenneth Lawrence Riggins, Esq., Attorney, Devries Law Office, Indianapolis, IN, for Defendant - Appellant Shaun Myers in No. 20-2462.

Michael Evan Rayfield, Attorney, Shook, Hardy & Bacon LLP, New York, NY, for Defendant - Appellant Michael O'Bannon in No. 20-2462.

Jessie A. Cook, Law Office of Jessie A. Cook, Attorney, for Defendant - Appellant Jason S. Reed in No. 20-2499.

Thomas A. Brodnik, Attorney, McNeely Law LLP, Indianapolis, IN, for Defendant - Appellant Pierre Riley in Nos. 20-3266, 21-1002.

Before Wood, Hamilton, and Kirsch, Circuit Judges.

Hamilton, Circuit Judge.

Fourteen people were charged and convicted for a conspiracy to transport illegal drugs from Georgia for distribution in Kokomo, Indiana. In these consolidated appeals, ten defendants challenge their convictions and/or sentences on a host of issues: Pierre Riley, Reggie Balentine, Michael O'Bannon, Michael Jones, Jason Reed, Shaun Myers, Perry Jones, Thomas Jones, Derrick Owens, and Antwon Abbott. We affirm all challenged convictions, and we affirm the sentences of all but one defendant. We vacate the sentence of Thomas Jones and remand his case for resentencing. We begin with an outline of the drug conspiracy and the procedural history of this case, adding more details later as needed for specific issues.

I. Factual and Procedural Background

A. The Drug Distribution Conspiracy

In 2016, the Kokomo, Indiana, Drug Task Force was investigating Reggie Balentine, Michael O'Bannon, Michael Jones, and others for illegal drug activity. The investigation expanded when agents from the federal Drug Enforcement Administration joined in late 2017.

The evidence at trial showed that, from mid-2016 to May 2018, the targeted defendants and others obtained and distributed substantial quantities of methamphetamine, cocaine, and heroin. Reggie Balentine, who lived in Kokomo, pooled money from co-conspirators in Indiana to buy the drugs from Pierre Riley, their source in Georgia. For most shipments, Balentine and Riley arranged to have couriers drive or travel by bus from Indiana to Georgia with cash to buy drugs and transport them back to Kokomo. Riley or his associates would meet the couriers, who would exchange the money for drugs and quickly return to Indiana. When the drugs arrived in Kokomo, Balentine stored them in the homes of his associates and other locations until the drugs could be sold. Balentine then distributed the drugs to Michael O'Bannon, Michael Jones, Shaun Myers, Jason Reed, Derrick Owens, Perry Jones, and Antwon Abbott.

In April 2018, investigators began closing in on the operation. On April 25, 2018, officers intercepted a courier on her way to Indiana. They seized the methamphetamine and cocaine she was transporting, but they did not arrest her at the time. The drugs seized were only the first of two shipments from one transaction arranged by Balentine. Because of the police attention on the first courier, Myers volunteered his girlfriend to drive to Georgia to pick up the second shipment. Balentine and Riley agreed. Aware of the conspirators' attempt to retrieve the second shipment, officers stopped Myers' girlfriend after she completed the exchange with Riley on April 26, 2018. They seized the rest of the drugs.

To protect the drug trafficking operation, Riley and Balentine plotted to kill a person they suspected was a confidential informant. They later sought help from O'Bannon, whose home the suspected informant had allegedly robbed. Riley and Balentine put up money for the murder and helped O'Bannon pay his share. O'Bannon was responsible for hiring out-of-state hitmen, and he met them when they arrived in Kokomo. Officers foiled the plot by stopping O'Bannon as he drove with the hitmen to the target's home. Officers later found several firearms in the hitmen's hotel room.

On April 26, 2018, the DEA special agent in charge of the investigation applied for a warrant to search the residences of several conspirators, including Balentine, Abbott, and O'Bannon. The searches turned up guns and drugs.

B. Pretrial Proceedings

A federal indictment charged fourteen people with conspiracy to distribute controlled substances and individual counts related to drugs, firearms, murder for hire, and money laundering. Nine defendants pleaded guilty. Michael Jones, Myers, Reed, and O'Bannon were tried together before a jury and convicted on most charges. Abbott's charges were severed, and he was convicted in a separate bench trial. The district court then sentenced the defendants to lengthy terms in prison.

Ten defendants have appealed, challenging decisions on pretrial motions to suppress, jury selection, admission of trial evidence, the sufficiency of evidence, and sentencing. We have sorted the challenges into five major groups that follow the sequence of the prosecution. Part II of this opinion addresses the pretrial motions to suppress. Part III addresses a Batson challenge to the government's use of peremptory strikes in jury selection. Part IV addresses a challenge to so-called dual-role witness testimony at trial and an instruction the court gave during that testimony. Part V explains why the evidence was sufficient to support all convictions at trial. Finally, Part VI addresses multiple sentencing issues.

II. Pretrial Motions to Suppress

We begin by reviewing the district court's denial of two motions to suppress. The first sought to suppress evidence obtained through use of court-approved wiretaps. In the second, Abbott sought to suppress evidence seized in a search of his residence.

A. Motion to Suppress the Wiretap Evidence

The four defendants in the jury trial, Michael Jones, Reed, Myers, and O'Bannon, argue that the district court erred by denying a motion to suppress evidence obtained from use of a wiretap, supposedly in violation of 18 U.S.C. § 2518. Before the government can use a wiretap to gather evidence of a crime, it must apply for court authorization. 18 U.S.C. § 2516 ; United States v. Mandell , 833 F.3d 816, 820 (7th Cir. 2016).

Section 2518 governs the standards and procedures for approving a wiretap. The government's application must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." § 2518(1)(c). To grant the application, the court must find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." § 2518(3)(c). Evidence obtained from a wiretap that fails to comply with federal law is inadmissible. Mandell , 833 F.3d at 820, citing § 2515.¹

In February 2018, investigators sought court approval to intercept wire and electronic communications from Balentine's phones. Attached to the application was an affidavit from the lead case agent. The district court authorized the initial wiretap on February 22, 2018. After that authority expired, investigators sought approval for another wiretap in April 2018, which the court also granted.

Several defendants moved to suppress evidence obtained from the wiretaps. The district court denied the motions, finding that the government's affidavits demonstrated what is sometimes described as the "necessity" for each wiretap. On appeal, defendants challenge the court's conclusion that the "necessity" requirement was satisfied.

To be clear, the wiretap statute does not require literal "necessity." The statute "was not intended to ensure that wiretaps are used only as a last resort in an investigation, but rather that they are not to be routinely employed as the initial step in a criminal investigation." Mandell , 833 F.3d at 821, quoting United States v. McLee , 436 F.3d 751, 762–63 (7th Cir. 2006). The government's burden of establishing that normal methods have not worked or are unlikely to work or would be too dangerous "is not great," and we consider its supporting evidence "in a practical and common-sense fashion." Id. , quoting McLee , 436 F.3d at 763.

We review for an abuse of discretion the issuing judge's conclusion that the statute has been satisfied. McLee , 436 F.3d at 763, citing United States v. Zambrana , 841 F.2d 1320, 1329 (7th Cir. 1988). Defendants contend that the supporting affidavits for both the February and April wiretap applications failed to justify use of wiretaps.

1. The February Wiretap Application

Defendants argue that the February application contained largely conclusory statements with...