In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2262
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ELVIN T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 06 CR 00023—Theresa L. Springmann, Judge.
A RGUED JANUARY 12, 2010—D ECIDED A PRIL 8, 2010
Before P OSNER, FLAUM and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. On May 24, 2006, defendant-
appellant, Melvin Taylor, was indicted, along with
Marlyn Barnes, Michael Alexander, Theodis Armstead,
Herbert Hightower, and Vernell Brown, for conspiracy
to possess with intent to distribute more than five kilo-
grams of cocaine, in violation of 21 U.S.C. § 846. Taylor
was also indicted for carrying a firearm during and
in relation to a drug trafficking crime, in violation of
2 No. 09-2262
18 U.S.C. § 924(c). After proceeding to trial on April 15,
2008, a jury found Taylor guilty of both counts. Several
months later, Taylor filed a motion for a new trial based
on newly discovered evidence. The district court denied
the motion. At Taylor’s sentencing hearing, the district
court found that the conspiracy involved forty kilo-
grams of cocaine, which resulted in a sentence of 188
months on the conspiracy count. Taylor appeals his
conviction, the district court’s denial of his motion for
a new trial, and his sentence. For the reasons set forth
below, we affirm Taylor’s conviction and the district
court’s denial of a new trial. However, because of an
error in the district court’s determination of the amount
of cocaine attributable to the conspiracy, we vacate
the sentence and remand for re-sentencing.
I. Background
A. Facts of the Underlying Conspiracy
This conspiracy involved a fake shipment of drugs
traveling from Texas to Fort Wayne, Indiana. Barnes, the
mastermind of the conspiracy and the person who re-
cruited Taylor, first learned of the fake shipment from
Kurt Hunter. Hunter and Barnes had been providing
each other with drugs on a regular basis for several
months prior to April of 2006. However, Barnes was
unaware that Hunter was working as a confidential
informant for the government. On April 17, 2006, Hunter
and Barnes met to develop a plan to steal a local dealer’s
stash of drugs. At that meeting, Hunter mentioned the
fictional shipment of drugs that became the core of this
No. 09-2262 3
conspiracy. Barnes became interested in stealing this
fictional shipment rather than going forward with
the original plan. On April 23, 2006, Hunter introduced
Barnes and Alexander, Barnes’s brother, to Agent Wayne
Lessner, the undercover agent working with Hunter.
Barnes and Alexander believed that Hunter and Agent
Lessner were couriers for the drug shipment from
Texas. Barnes met with Hunter and Agent Lessner once
more that month to discuss the logistics of the heist.
Agent Lessner recorded both meetings. During the first
meeting with Agent Lessner, Barnes indicated that he
had recruited several people to participate in the heist.
Barnes told Hunter and Agent Lessner that one of the
people he had recruited was a friend named MacMel.
Several witnesses at trial testified that Taylor commonly
went by the nicknames Mac, Mel, and MacMel. During
these two meetings, Hunter and Agent Lessner inten-
tionally never indicated the exact quantity of drugs that
would be involved in the shipment because drug
couriers would not normally know that information.
Although Hunter and Agent Lessner never named an
exact amount of drugs, the audiotapes of the meetings
capture Barnes making various assumptions about the
quantity of drugs involved, ranging from twenty-to-eighty
kilograms. After the second meeting, Hunter and Agent
Lessner stayed in contact with Barnes, updating him on
the progress of the fictional drug shipment. Once it
was determined that the heist would occur on May 5, 2006,
the government, through Agent Lessner and Hunter,
arranged for Barnes and his co-conspirators to stay in
two hotel rooms under video surveillance at the Knights
4 No. 09-2262
Inn in Fort Wayne, Indiana for the nights of May 3
and May 4, 2006.
Between April 17, 2006, when he first learned of the
fictional shipment, and May 3, 2006, when he traveled to
Fort Wayne, Barnes compiled his team to carry out the
heist. At trial, Hightower testified that Barnes recruited
him to the conspiracy in April of 2006. Hightower testi-
fied that Barnes told him that the plan was to rob fifty
kilograms of cocaine from a stash house in Fort Wayne
with Taylor and two individuals recruited by Taylor.
Brown and Armstead, two of the other co-conspirators,
testified that Taylor recruited them in April of 2006.
Armstead also testified that prior to going to Fort Wayne,
he understood this to be a “lifetime deal” involving
about forty kilograms of cocaine.
On May 3, 2006, Barnes and Hightower traveled from
Gary, Indiana to Fort Wayne to meet with Agent Lessner.
At trial, there was conflicting testimony about what
happened when they were leaving Gary. Barnes testified
that they went directly to Fort Wayne. Hightower testified
that they stopped at Taylor’s house on their way out
of Gary. According to Hightower, who claims to have
stayed in the car while Barnes went into Taylor’s house,
Taylor came out of the house, got a bag out of his car, and
gave the bag to Barnes. Barnes then gave the bag to
Hightower. Inside the bag, Hightower saw a Keltec auto-
matic rifle and a bulletproof vest. Hightower took an AK-
47 from the car and put it into the bag.
The next day, Taylor, Brown, and Armstead traveled
from Gary to Fort Wayne. Brown testified that they dis-
No. 09-2262 5
cussed the plan to steal the load of drugs on the drive.
When they arrived in Fort Wayne, they saw Barnes in
his car at an intersection and followed him to the
Knights Inn. After meeting Barnes at the Knights Inn,
Taylor, Brown, and Armstead went to visit Taylor’s uncle
at the nearby Applebee’s. Several hours later, Taylor,
Brown, and Armstead returned to the Knights Inn and
joined a meeting with Agent Lessner, Hightower, Alexan-
der, and Barnes in one of the hotel rooms. The govern-
ment introduced a videotape of this meeting at trial.
During the meeting, Agent Lessner discussed the logistics
of the shipment and how they would carry out the heist,
but stopped short of mentioning the specific amount of
drugs that would be involved. In response to a question
from Alexander, Agent Lessner did tell the group that
the drugs would be in the fuel tank and described the
fuel tank as the size of the dresser in the room. The
meeting lasted thirty minutes. The videotape shows
Taylor sitting on the bed and participating in the
meeting on three occasions: he commented on the type of
truck that would be involved; he informed Barnes that
Youngstown was in Ohio; and he described a person
who would be involved in the heist and how he would
be armed.
On the morning of May 5, 2006, Agent Lessner called
Barnes to tell him everything was ready. Barnes took the
bag with the bulletproof vests and guns. Barnes and
Hightower rode with Agent Lessner to the storage
facility to pick up the van that they were planning to use
in the heist. Taylor drove behind Agent Lessner’s car
with Armstead and Brown. Once they arrived at the
6 No. 09-2262
storage facility, the group was arrested. The arresting
officers found a .40-caliber handgun and three addi-
tional loaded magazines on Taylor.
B. Procedural History
On September 18, 2007, Barnes, Armstead, Brown, and
Taylor proceeded to trial. Alexander and Hightower
pleaded guilty prior to September of 2007. Early in
the September 2007 trial, Armstead, Brown, and Taylor
moved for a mistrial when Barnes agreed to testify on
their behalf. The court granted the mistrial and severed
Barnes’s trial from the other defendants. Barnes proceeded
to trial alone in February of 2008 and was found guilty.
Armstead and Brown then pleaded guilty, and in April of
2008, Taylor proceeded to trial as the only remaining
defendant. Armstead, Brown, and Hightower testified
against Taylor at his trial. Barnes testified on Taylor’s
behalf. Barnes denied ever talking to Taylor about the
heist before May 4, 2006 and claimed it was a coincidence
that they ran into each other in Fort Wayne on May 3,
2006. The jury found Taylor guilty.
In October of 2008, Taylor filed a motion for a new trial
based on a post-sentencing statement of Alexander,
and then filed an amended motion based on a post-sen-
tencing statement of Brown. Alexander claimed that
Taylor did not know about the conspiracy and was only
in Fort Wayne to visit his uncle. Brown claimed that he
pleaded guilty and testified against Taylor out of fear of
a life sentence, but that he and Taylor had never spoken
of the drug heist. The district court denied the motion. In
No. 09-2262 7
rejecting Alexander’s statement, the district court rea-
soned that all of the information in Alexander’s state-
ment was information known to Taylor prior to trial,
and therefore was not newly discovered evidence. Addi-
tionally, the district court found that Alexander’s state-
ment was weak exculpatory evidence because it directly
contradicted Alexander’s plea colloquy. The district court
rejected the motion based on Brown’s affidavit because
it was not reasonably well satisfied that Brown’s trial
testimony was false.
On May 4, 2009, the district court sentenced Taylor to
188 months for the conspiracy charge and sixty months
for the gun charge. Taylor was the last of the co-conspira-
tors to be sentenced. Taylor’s pre-sentence report recom-
mended that the district court find that the conspiracy
involved forty kilograms of cocaine. Taylor objected to
this recommendation and urged the court to find that
the conspiracy involved five-to-fifteen kilograms. Not-
withstanding Taylor’s objection, the district court made
the factual finding that the conspiracy involved forty
kilograms of cocaine. The district court had made the
same finding of forty kilograms when sentencing
Barnes, but had previously accepted stipulations that
the conspiracy involved only five-to-fifteen kilograms of
cocaine when sentencing Alexander, Hightower, Brown,
and Armstead. The factual determination that the con-
spiracy involved forty kilograms resulted in a base
offense level of 34. With a two-point enhancement not
challenged in this appeal, Taylor’s offense level was 36,
which resulted in an advisory guideline range of 188 to
235 months. Had the district court found that the con-
8 No. 09-2262
spiracy involved five-to-fifteen kilograms, the advisory
guideline range would have been 151 to 188 months.
II. Discussion
A. Sufficiency of the Evidence for the Conspiracy Count
Taylor challenges his conviction, claiming that the
government presented insufficient evidence to prove
beyond a reasonable doubt that he conspired with Barnes,
Hightower, Alexander, Armstead, and Brown to possess
with intent to distribute more than five kilograms of
cocaine. When assessing a sufficiency of the evidence
claim, our threshold inquiry is whether, “after viewing
the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.”
United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)
(internal citations omitted). We do not re-weigh the
evidence or determine the credibility of witnesses. United
States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009). To
convict a defendant of conspiracy to possess with intent
to distribute cocaine under 21 U.S.C. § 846, the govern-
ment must establish: (1) the existence of an agreement
between two or more persons to possess with intent to
distribute cocaine; (2) that the defendant knew of the
agreement; and (3) the defendant intended to join the
agreement. See United States v. Billops, 43 F.3d 281, 284
(7th Cir. 1994). “[M]ere association with conspirators,
knowledge of a conspiracy and presence during con-
spiratorial discussions is not sufficient to convict a
No. 09-2262 9
person of conspiracy.” United States v. Useni, 516 F.3d 634,
646 (7th Cir. 2008).
Taylor argues that the government presented such
limited and unreliable evidence that no reasonable juror
could have found him guilty of being involved in the
conspiracy beyond a reasonable doubt. Taylor claims
that he was only in Fort Wayne to visit his uncle, that
he had no knowledge of the plan to steal the drug ship-
ment until the meeting at the Knights Inn on May 4,
2006, and that he was merely present for that meeting
but did not participate. To support his claim of non-
involvement in the conspiracy, Taylor points to his mini-
mal involvement in the meeting at the Knights Inn
and the uncontested fact that he never spoke to the confi-
dential informant. To counter the testimony of High-
tower, Armstead, and Brown, all of whom testified that
Taylor participated in planning the heist, Taylor argues
that their testimony was inconsistent and therefore
we should not credit it. The inconsistencies in their testi-
mony generally relate to whether Barnes and Hightower
received guns from Taylor on May 3, 2006. Armstead and
Hightower testified consistently on the main issue, that
Barnes received the guns from Taylor on May 3, 2006,
but deviated on who retrieved the guns and where the
guns were originally located. Barnes completely denied
receiving guns from Taylor.
Although Taylor’s arguments may have been valid
arguments to put before a jury, they are not enough to
support a sufficiency of the evidence challenge on ap-
peal. The government put forth evidence that Taylor
10 No. 09-2262
actively participated in the conspiracy and even recruited
other individuals to the conspiracy. Hightower testified
that he saw Taylor give Barnes guns, that Taylor partici-
pated in a conversation about how three people would
use two vests, and that Taylor showed up at the hotel
with a .40-caliber handgun, three magazines and forty-
six rounds of ammunition. Brown, who traveled to Fort
Wayne at the urging of Taylor, testified that Taylor
knew about the planned drug heist and traveled to Fort
Wayne to participate. Armstead testified that Taylor
recruited him to the conspiracy and that he knew they
were traveling to Fort Wayne to participate in a drug
heist. The government also presented an audiotape in
which Barnes said that he had recruited an individual
named “MacMel,” a known nickname for Taylor, and
a videotape of Taylor participating in the meeting at
the Knight’s Inn on May 4, 2006. Although Taylor char-
acterizes his participation at that meeting as minimal,
the jurors had an adequate opportunity to assess his
involvement in the meeting for themselves. Furthermore,
Taylor concedes that he responded to questions and
asked questions during the meeting. Taylor essentially
asks us to find that the government’s evidence was not
credible. However, that is not the role of this Court. The
government put forth sufficient evidence of Taylor’s
involvement in the conspiracy. It was the jury’s role to
assess the credibility of that evidence.
B. Motion for a New Trial
Next, Taylor contends that the district court erred by
denying his motion for a new trial based on newly dis-
No. 09-2262 11
covered evidence. The pieces of newly discovered evidence
Taylor refers to are a statement by Alexander, stating
that Taylor was not involved in the conspiracy, and a
statement by Brown, claiming that Taylor did not have
any knowledge of the conspiracy. We review a district
court’s denial of a motion for a new trial using an
abuse of discretion standard. United States v. Lewis, 567
F.3d 322, 328 (7th Cir. 2009). The test we apply when con-
sidering new evidence not considered at trial is slightly
different from the test we apply when considering evi-
dence proving that testimony at trial was false. Therefore,
we will take the district court’s consideration of each
statement in turn.
Alexander signed an affidavit exculpating Taylor
after he received the benefit of his plea agreement at sen-
tencing. Alexander claims that Taylor had nothing to
do with the plan to steal the drugs, that Taylor was only
in Fort Wayne to visit his uncle, and that Taylor fell
asleep during the meeting at the Knights Inn. Neither
the government nor Taylor called Alexander as a wit-
ness at trial. To determine whether this is new evidence
such that it warrants a new trial, we must consider
whether it: (1) came to Taylor’s knowledge only after
trial; (2) could not have been discovered sooner had
Taylor exercised due diligence; (3) is material and not
merely impeaching and cumulative; and (4) would proba-
bly lead to an acquittal in the event of a retrial. See
United States v. Bender, 539 F.3d 449, 455-56 (7th Cir.
2008). Alexander’s statement does not qualify as newly
discovered evidence to warrant a new trial. Taylor was
aware of his own involvement in the conspiracy, or lack
12 No. 09-2262
thereof, from the beginning and could have called Alex-
ander to testify on his behalf at trial. Taylor offers
no reason why he did not call Alexander as a witness. In
the absence of another explanation, we may assume
that Taylor did not call Alexander to testify because
Alexander expressed an unwillingness to testify, or an
unwillingness to testify in a way that would benefit
Taylor. However, that does not make the facts to which
Alexander would have testified newly discovered evi-
dence. Taylor also offers no clear argument demon-
strating that this testimony would lead to an acquittal in
the face of the testimony of Armstead and Hightower (we
do not consider Brown’s testimony in this analysis
because he has recanted). Alexander’s testimony would
have corroborated Barnes’s testimony, but the jury chose
to disregard Barnes’s testimony because of its internal
inconsistencies and its inconsistencies with the testimony
of the other witnesses and the physical evidence. Alex-
ander would not have made a much more believable
witness than Barnes. If Alexander testified at a new trial,
his testimony would directly contradict his plea
colloquy, which the government certainly would bring
out on cross-examination. It also would be inconsistent
with the other testimony and the physical evidence.
For these reasons, the district court did not abuse its
discretion in determining that Alexander’s statement
does not meet the requirements to warrant a new trial.
Unlike Alexander, Brown did testify against Taylor at
his trial. Brown’s affidavit now recants that testimony.
Because this new evidence deals with allegedly false
testimony at trial, we must consider whether: (1) we are
No. 09-2262 13
reasonably well satisfied that the testimony given by
Brown at trial was false; (2) the jury might have reached
a different conclusion absent the false testimony or if it
had known Brown’s testimony was false; and (3) Taylor
was taken by surprise when the false testimony was
given, and was unable to meet it or did not know its
falsity until after the trial. See United States v. Bender,
539 F.3d 449, 456 (7th Cir. 2008). Brown’s statement that
Taylor had no knowledge of the plan to steal drugs
does not meet the first prong of the analysis. Brown’s
trial testimony was consistent with the testimony of
two other witnesses, the videotape of the meeting, and the
.40-caliber handgun found on Taylor. His new statement
contradicts all of these corroborated pieces of evidence.
Brown’s statement also does not meet the third prong
of the analysis. If Brown’s trial testimony was false, Taylor
would have known that it was false at the time of trial
because the testimony Brown now recants dealt ex-
clusively with Taylor’s knowledge of and involvement in
the conspiracy. Taylor had ample opportunity to refute
the testimony through cross-examination. For these
reasons, the district court did not abuse its discretion
in determining that Brown’s new statement does not
meet the requirements for newly discovered evidence to
warrant a new trial.
C. Sentencing
Lastly, Taylor argues that the district court erred in its
determination that the amount of cocaine attributable to
the conspiracy was forty kilograms when calculating the
14 No. 09-2262
appropriate sentencing guideline range. We review a
district court’s factual finding regarding drug quantity
for clear error. United States v. Clark, 538 F.3d 803, 812
(7th Cir. 2008). The government has the burden of
proving the quantity of drugs attributable to the defendant.
United States v. Krasinski, 545 F.3d 546, 551 (7th Cir. 2008).
The evidence on which the district court relies must
have “sufficient indicia of reliability to support its
probable accuracy.” United States v. Bautista, 532 F.3d 667,
672 (7th Cir. 2008).
As an initial matter, the government argues that this
sentence is not reviewable because it falls within the
lower guideline range that Taylor advocates should
apply. However, a district court’s decision to sentence
a defendant within the overlap of two guideline ranges
does not automatically insulate a sentence from review.
Emezuo v. United States, 357 F.3d 702, 710-11 (7th Cir. 2004).
Only when it is clear from the sentencing record that
the district court would have applied the same sentence
even if the lower range applied will we decline to
review a sentence. Id. The government points to no state-
ments in the record that indicate that the district court
would have given the same sentence had it started with
the lower range. Therefore, we will proceed to the
review of the district court’s factual determinations in
coming to this sentence for clear error.
To support the district court’s finding that the con-
spiracy involved forty kilograms of cocaine, the govern-
ment points to several key pieces of evidence on which
the district court relied. First, Agent Lessner testified
No. 09-2262 15
that he told all the parties in the hotel room meeting,
including Taylor, that the cocaine would be in the fuel
tank of the truck, which he compared to a dresser in the
room roughly large enough to hold forty kilograms. This
testimony was also supported by the videotape of
that meeting. Taylor argues that this is not sufficient
evidence to support the finding of forty kilograms be-
cause Agent Lessner only said that the drugs would fit
in the fuel tank, but did not say that the drugs would
fill the fuel tank. The government also points to the
testimony of Armstead and Hightower. Armstead, Tay-
lor’s recruit to the endeavor, testified that he believed
the quantity of drugs involved was forty kilograms when
he agreed to participate. Hightower testified that Barnes
told him that the heist involved fifty kilograms of cocaine.
While this record to support the factual finding that the
conspiracy involved forty kilograms of cocaine is thin, it
would probably be enough to support such a factual
finding. However, this case presents an additional chal-
lenge.
This conspiracy involved six co-conspirators. Four of
the co-conspirators pleaded guilty before going to trial.
Barnes and Taylor did not plead guilty. The district court
did not sentence any of the defendants until after the
trials of Barnes and Taylor. Therefore, the district court
had the exact same factual record before it with regard
to the amount of drugs involved in the conspiracy
when sentencing all of the defendants. The plea agree-
ments of the four cooperating co-conspirators stipulated
that the conspiracy involved five-to-fifteen kilograms
of cocaine. Had the district court found that the evidence
16 No. 09-2262
in the record did not support this factual stipulation, it
had the authority to reject the stipulation at sentencing
and make a factual finding consistent with the evidence.
U.S.S.G. § 6B1.4(d). The district court did not do this. The
district court accepted this factual stipulation and sen-
tenced these four co-conspirators on the finding that the
conspiracy involved five-to-fifteen kilograms of cocaine.
Then, at the sentencing hearings for Barnes and Taylor,
the district court found that the conspiracy involved
forty kilograms of cocaine. The district court did not
explain the discrepancy in its factual findings regarding
the drug quantity among the co-defendants. Rather,
at Barnes’s sentencing hearing, the district explicitly
stated that there was no reason to treat Barnes differently
from his co-conspirators with regard to the amount of
drugs involved in the conspiracy, but then proceeded to
find a different quantity of drugs. Taylor’s sentencing
record is silent on the issue of how he should be treated
with regard to drug quantity in relation to his co-defen-
dants. As the court discussed with regard to Barnes in
United States v. Barnes, 09-2052, without a justification
for treating these co-defendants differently when deter-
mining the amount of drugs attributable to the con-
spiracy, it was clear error for the district court to find one
drug quantity for Armstead, Hightower, Brown, and
Alexander, and a different drug quantity for Taylor on
an identical record.
III. Conclusion
For the reasons set forth above, we A FFIRM Taylor’s
conviction and the district court’s denial of the motion
No. 09-2262 17
for a new trial. We V ACATE Taylor’s sentence and
R EMAND for re-sentencing.
4-8-10