In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2321
United States of America,
Plaintiff-Appellee,
v.
Morris D. Hunt,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 96-CR-30102-WDS--William D. Stiehl, Judge.
Argued February 20, 2001--Decided November 29, 2001
Before Easterbrook, Evans, and Williams,
Circuit Judges.
Williams, Circuit Judge. Morris Hunt was
prosecuted for and convicted of
conspiracy to distribute cocaine and
crack cocaine (by aiding and abetting the
conspiracy), and money laundering. He
appeals his conviction and sentence,
challenging the sufficiency of the
evidence for his conspiracy conviction,
the district court’s admission of hearsay
testimony at trial and its calculation of
his relevant conduct and offense level
for sentencing. We affirm the conviction,
but vacate the sentence and remand the
case to the district court for
resentencing.
I. BACKGROUND
A. The Facts
Morris Hunt and Eugene Birge were
friends, who had known each other for
several years. Hunt sold insurance
policies to Birge, and they frequently
traveled together at Birge’s expense. But
there was more to their friendship.
Birge was a leader of a major cocaine
trafficking conspiracy in the East St.
Louis, Illinois area. Hunt knew that
Birge was involved in drug dealing, but
it is unclear if he fully knew to what
extent. At any rate, Hunt helped Birge
handle some of the money from the drug
conspiracy. Hunt purchased a 1992 Acura
Legend for Birge, that cost approximately
$23,500, in the name of his insurance
company with loans he obtained. Birge
paid Hunt for the car in cash. In
addition, Birge went to Hunt’s office
several times, and Hunt helped Birge to
count money. They counted at least
$20,000 each time.
Sometime later, agents in the federal
Drug Enforcement Administration ("DEA")
began investigating Birge’s drug
conspiracy. The investigation resulted in
the indictment of twenty-three
individuals for conspiracy to distribute
cocaine and cocaine base ("crack
cocaine"), including Hunt for his role as
aider and abetter, and money launderer,
in the conspiracy. The indictment was
obtained in part with the assistance of
Birge, who decided to cooperate with the
government. Unfortunately, he was
murdered several months before the first
indictment was returned. Twenty-two of
the defendants decided to plead guilty;
only Hunt proceeded to trial.
B. District Court Proceeding
At trial, several co-conspirators--
including James Birge, Jr., Clifton
Bernard, and Darwin Rockett--testified
concerning the drug trafficking
conspiracy and their knowledge of Hunt’s
involvement in the conspiracy, largely
regarding the purchase of the Acura
Legend. DEA Special Agents Michael Rehg
and Larry Fox, and Internal Revenue
Service ("IRS") Special Agents Kevin
Martens and Joe Zingrichtestified about
their conversations with Hunt, covering
the Acura Legend purchase and the money
he counted with Birge. They also relayed
information that they had gained from
their investigations, including
conversations with Birge regarding Hunt’s
purchase of the Acura Legend.
Hunt did not testify or present any
evidence in his defense. He was convicted
of conspiracy to distribute cocaine and
crack cocaine under 21 U.S.C. sec.sec. 2,
841(a)(1) and 846,/1 and convicted of
money laundering under 18 U.S.C. sec.sec.
1956(a)(1)(B)(i) and (2).
At sentencing, the district court
calculated Hunt’s relevant conduct and
offense level for sentencing under
section 2D1.1 of the United States
Sentencing Guidelines for a drug
trafficking conspiracy. The district
court converted the amount of money Hunt
laundered and counted into kilograms of
cocaine to apply the guideline, using the
street price of one kilogram of cocaine.
The district court held him accountable
for 4 kilograms ($83,500): 1 kilogram for
the Acura Legend purchase ($23,500) and 3
kilograms for counting money with Birge
($60,000) at least three times, which was
the district court’s interpretation of
"several." The district court then denied
Hunt a reduction as a minor participant
in the conspiracy, because he was held
accountable only for the money he
actually laundered and counted. Hunt was
sentenced to 97 months in prison. He now
appeals.
II. ANALYSIS
A. Sufficiency of the Evidence
Hunt challenges the sufficiency of the
evidence to support his conviction for
conspiracy to distribute cocaine and
crack cocaine. His challenge is a
formidable one, which rarely carries the
day. See United States v. Hickok, 77 F.3d
992, 1002 (7th Cir. 1996) ("He follows in
the footsteps of countless criminal
defendants who have made similar
arguments in this court, and, like them,
he bears a ’heavy burden’ . . . ."). We
review the evidence in the light most
favorable to the government and will
uphold the conviction if "any rational
trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in
original).
Hunt was convicted of conspiracy because
of his role as an aider and abetter of
the conspiracy, and therefore in this
challenge, we must consider the elements
for aiding and abetting to determine the
sufficiency of the evidence, not
conspiracy. Aiding and abetting has three
elements, requiring "knowledge of the
illegal activity that is being aided and
abetted, a desire to help the activity
succeed, and some act of helping." United
States v. Zafiro, 945 F.2d 881, 887 (7th
Cir. 1991) (emphasis in original). Hunt
argues that the government did not
present sufficient evidence to support an
inference of his knowledge of the
conspiracy and that his assistance was
too trivial to support an inference of a
desire to see the conspiracy succeed. We
address each of these arguments in turn.
The evidence of knowledge and desire in
this case is circumstantial, but
straightforward. Hunt and Birge had been
friends for some time. They traveled
together on numerous trips, which were
paid for by Birge. Hunt admitted to DEA
agents that he believed Birge was
involved in drug dealing. Birge was in
fact involved in drug dealing, and on a
very large scale. From September 1992
until at least February 1996, members of
the conspiracy acquired and distributed
approximately 174 kilograms of cocaine in
the East St. Louis area, and Birge was a
source of supply for the mid-level
dealers in the conspiracy. On several
occasions, Birge appeared at Hunt’s
office with at least $20,000, and Hunt
helped Birge to count the money. Birge
also gave Hunt approximately $23,500 in
cash to purchase an Acura Legend, which
Hunt purchased, arranging for loans and
putting the automobile in the name of his
insurance company.
This circumstantial evidence of Hunt’s
knowledge is not overwhelming, but is
sufficient. A rational juror could have
reasonably inferred from the friendship,
the trips, and the drug money in the
Acura Legend purchase and in the
counting, that Hunt and Birge, one of the
principals in a drug trafficking
conspiracy, had a close relationship of
mutual trust and confidence. A rational
juror could have also reasonably inferred
that the large quantities of cash that
they counted and that was involved in the
car purchase pointed to a much broader
operation than Birge alone. And finally,
a rational juror could have reasonably
inferred that Hunt’s activities
constituted significant participation to
further the objectives of the conspiracy.
Added together, the facts and inferences
reflect knowledge of the conspiracy. A
rational juror could have believed beyond
a reasonable doubt that Hunt knew he was
helping a drug conspiracy.
We also believe that despite the
enormity of the conspiracy, Hunt’s
participation was not trivial. Hunt
laundered at least $23,500 in the Acura
Legend deal, washing the conspiracy’s
dirty money through his legitimate
business, which concealed the true source
of the funds and protected the
conspiracy. Hunt also counted at least
$60,000, providing "in-house" accounting
for the conspiracy counting its cash. His
assistance was critical to maintaining
the secrecy and continuation of the
conspiracy.
But the basic question here is whether
a rational juror may infer beyond a
reasonable doubt from the facts presented
Hunt’s desire to see the conspiracy
succeed. We believe, on the basis of all
the evidence, a rational juror could make
such an inference. Plugging potentially
life-threatening holes of the conspiracy
is not the type of trivial assistance we
have before rejected. Compare United
States v. Irwin, 149 F.3d 567, 574 (7th
Cir. 1998) (rejecting as trivial
defendant’s assistance of providing a
credit card to a drug conspirator to make
purchases totaling $7,000 over two years,
because the conspirator’s "use of the
charge card did not hide his identity
because the card was issued in his name,"
and "his use of the card created a paper
trail leading to him").
B. Evidentiary Rulings
Hunt next challenges several evidentiary
rulings by the district court, in
particular its (1) denial of his request
for a Santiago hearing, (2) admission of
hearsay testimony by co-conspirators
Birge, Jr., Bernard, and Rockett,
whotestified concerning conversations
with Birge, and (3) admission of hearsay
testimony by DEA and IRS agents, who also
testified concerning conversations with
Birge. We ordinarily review the district
court’s evidentiary determinations for
abuse of discretion./2 See, e.g.,
United States v. Smith, 230 F.3d 300, 307
(7th Cir. 2000). That is to say, we ask
whether a reasonable person could agree
with the decision of the district court.
We address each challenge separately and
find that there was no abuse of
discretion.
1. Santiago hearing.
In United States v. Santiago, 582 F.2d
1128 (7th Cir. 1978), overruled on other
grounds by Bourjaily v. United States,
483 U.S. 171 (1987), we articulated the
appropriate standard for determining the
admissibility of hearsay evidence under
the co-conspirator exception, concluding
that "if it is more likely than not that
the declarant and the defendant were
members of a conspiracy when the hearsay
statement was made, and that the
statement was in furtherance of the
conspiracy, the hearsay is admissible"
under Federal Rule of Evidence
801(d)(2)(E). Id. at 1134. In cases
following that decision, we have
identified several options available to
the district court to determine the
admissibility of Santiago evidence: (1)
make a preliminary determination based on
the government’s proffer of evidence, (2)
rule on each statement as elicited at
trial based on the evidence presented at
that point, (3) conditionally admit the
evidence without a proffer subject to
eventual supporting evidence to be
presented sometime at trial (risking, of
course, a possible mistrial), or (4) hold
a "full-blown" pre-trial hearing to
consider all the evidence and make a
decision. See, e.g., United States v.
McClellan, 165 F.3d 535, 553-54 (7th Cir.
1999).
Although we have identified these
several alternatives, we have often
discouraged the fourth alternative, a
full- blown pre-trial hearing, as
inefficient and potentially duplicative.
Id. at 554. Following this instruction,
the district court opted for the first
alternative, conditionally allowing the
challenged hearsay statements on the
government’s proffer of evidence and
delaying a final determination until
trial, and it did not abuse its
discretion by proceeding in this manner.
2. Hearsay testimony by co-
conspirators.
Hunt argues that the district court
erred by concluding that the testimony of
Birge, Jr., Bernard, and Rockett that
recounted statements made by Birge was
admissible hearsay under the co-
conspirator exception--Rule 801(d)(2)(E).
To fulfill the requirements of the
exception, the government must show by a
preponderance of the evidence that a con
spiracy existed between the declarant and
the defendant, and that the statement was
made in furtherance of that conspiracy.
Bourjaily, 483 U.S. at 175. Hunt asserts
that the government did not prove that he
was a member of the conspiracy or that
Birge’s statements were made in
furtherance of the conspiracy.
To establish a conspiracy, the
government must show the existence of an
agreement between two or more persons for
the purpose of committing, by their joint
efforts, a criminal act. United States v.
Hunte, 196 F.3d 687, 691 (7th Cir. 1999).
There must be a "participatory link"
between the conspiracy and the defendant,
which requires the government to show
that the defendant knew of the conspiracy
and intended to join its criminal
purpose. United States v. Pagan, 196 F.3d
884, 889 (7th Cir. 1999); United States
v. Navarez, 954 F.2d 1375, 1380-81 (7th
Cir. 1992). We review the district
court’s findings of fact for clear error
and findings of law de novo.
We do not believe that the district
court clearly erred in finding by a
preponderance of the evidence that Hunt
knew of the conspiracy, based on his
participation with Birge in money
laundering and counting, and his close
friendship with Birge. Nor do we believe
that the district court erred as a matter
of law by finding Hunt intended to join
the conspiracy on the basis of that same
evidence. Hunt argues that because he was
not involved in the actual sale of drugs,
he was not part of the conspiracy. But
the conspiracy’s objectives were two-
fold--to sell drugs and launder profits.
Therefore, Hunt was part of the
conspiracy; he participated in and helped
to protect the proceeds of the conspiracy
when he laundered and counted its money.
For statements to be in furtherance of
the conspiracy, they must be "part of the
information flow between conspirators
intended to help each perform a role,"
which, for example, may be a statement to
"control damage to an ongoing conspiracy
or keep conspirators advised about the
progress of the conspiracy." United
States v. Johnson, 927 F.2d 999, 1002
(7th Cir. 1991). All the statements of
which Hunt complains satisfy that
standard. Birge, Jr., Bernard, and
Rockett were each co-conspirators who
testified concerning their conversations
with Birge about Hunt’s involvement in
the conspiracy, helping to launder money.
The conversations involved Birge
informing co-conspirators of the
existence and progress of the laundering
end of the conspiracy or attempting to
control damage to the conspiracy.
For instance, Rockett testified that he
and Birge discussed how Birge concealed
drug trafficking money. Rockett stated,
as an example, "Mr. Hunt, he had gotten a
’90 something Accura [sic] Legend . . . .
[Birge] said it was his, but he couldn’t
put it in his name because it was such an
expensive car," and Birge said this was
done "[s]o it wouldn’t be traced back to
him." Rockett testified that although he
could not state absolutely that drug
proceeds were used in the purchase, this
"is mainly what happened" and Birge had
no other source of income, "he didn’t
have a job." The district court properly
found that these and the other statements
were made in furtherance of the
conspiracy.
3. Hearsay testimony by law enforcement
officers.
Addressing the alleged hearsay testimony
(Birge’s statements regarding Hunt and
the Acura Legend purchase) given by law
enforcement officers and assuming,
arguendo, that the statements were
inadmissable, the testimony was harmless.
We believe beyond a reasonable doubt that
it did not contribute to the verdict. In
reaching this conclusion, we consider (1)
the importance of the witness’s testimony
in the prosecution’s case; (2) whether
the testimony was cumulative; (3) whether
other evidence corroborated or
contradicted the witness’s material
testimony; and (4) the overall strength
of the prosecution’s case. See United
States v. Westmoreland, 240 F.3d 618, 629
(7th Cir. 2001).
Here, the first and third factors all
really collapse into the second. The
testimony was cumulative. As a
consequence, it was not very important to
the prosecution’s case, and it was
corroborated by other evidence. All the
testimony was basically the same, that
Birge said "Hunt had put the car in his
name to hide the asset." This statement
is precisely the same as that given by
the co-conspirators. More importantly
(recognizing co-conspirators’ credibility
problems), Hunt’s own admission to law
enforcement officers that "he obtain[ed]
a loan at the bank for the vehicle" he
purchased for Birge "so it wouldn’t look
so suspicious," corroborates the
testimony.
Regarding the fourth factor in the
analysis, the government had a good case
against Hunt. The facts were not in
substantial dispute. Hunt’s only real
contentions lie in the inferences drawn
as to his state of mind (i.e., his
knowledge of and desire to help the
conspiracy). We have already determined,
without relying on the hearsay testimony,
that those arguments were meritless. We
are not convinced that the result of the
proceeding was affected by the hearsay
testimony or that the result of the trial
would have been any different had the
testimony been excluded. Based on our
analysis, we believe beyond a reasonable
doubt that the presumed error did not
contribute to the verdict and was
harmless.
C. Sentencing
Hunt raises several challenges to the
district court’s calculation of his
relevant conduct and offense level for
sentencing. Most are without merit, and
we will not address them here. Rather, we
discuss the two arguments Hunt
principally advances. We review the
district court’s application of the
sentencing guidelines de novo and defer
to the court’s findings of fact unless
they are clearly erroneous. United States
v. Payton, 198 F.3d 980, 982 (7th Cir.
1999).
First, Hunt argues that the district
court erred when it decided to hold him
accountable for counting money with Birge
three times, based on its interpretation
of the word "several" (Hunt’s own
admission of the amount of times) to mean
at least three. We disagree. Although
several may mean "more than one," it may
also mean "more than two." Webster’s New
Third International Dictionary 2080
(1986). And, implicit in the district
court’s determination is the conclusion
that in light of the evidence, it
believed that the (more common)
definition of at least three was
appropriate. We cannot say the district
court’s choice to hold Hunt responsible
for three was clear error.
Second, Hunt argues that he should have
received an offense level reduction as a
minor participant in the conspiracy. The
district court, and the government on
appeal, stated that Hunt was held
accountable only for his conduct and
therefore was ineligible for such a
reduction. See, e.g., United States v.
Griffin, 150 F.3d 778, 787 (7th Cir.
1998). If we were to accept the district
court’s sentencing rationale, then Hunt’s
argument would be meritless, as both the
district court and the government argue.
But the district court’s sentencing
rationale contains an error, that is
plain, though Hunt fails to articulate
it. Fortunately for Hunt, plain errors in
a criminal case may be reviewed despite
the parties’ failure to raise them. See
Fed. R. Crim. Proc. 52(b).
In sentencing Hunt, the district court
stated that Hunt was "only being charged
with his actual participation in the
criminal offense for which he has been
convicted" and that "none of the
conspiracy activities are being charged
to [him] in the sentencing." However, the
district court then proceeded to identify
the amount of money that Hunt laundered
and counted in the drug conspiracy and
converted it into its "rough[ ]
equivalent" in cocaine, as if Hunt
hadactually sold drugs, and applied the
drug trafficking guideline, section
2D1.1. This was plain error.
If the district court was accurate in
stating that Hunt was being sentenced
only for his activity, and not that of
the conspiracy (an additional error),
then it could not take activity that Hunt
did do (launder and count money) and
convert it into activity he did not do
(sell drugs). Cf. Chapman v. United
States, 500 U.S. 453 (1991); United
States v. Cones, 195 F.3d 941 (7th Cir.
1999). Hunt laundered and counted money,
and accounting only for his activity in
calculating a sentence, the district
court should have applied the money
laundering guidelines, sections 2S1.1 and
2S1.2, not the drug trafficking
guideline.
While Hunt was part of a dual-object
conspiracy, to sell drugs and launder
profits, that does not justify recasting
his activity in one part (laundering and
counting) to conform with activity he did
not commit in the other part (selling).
It is important to keep things straight.
See United States v. Goines, 988 F.2d
750, 775-77 (7th Cir. 1993). Hunt
laundered and counted money. His co-
conspirators sold drugs.
The drug trafficking guideline is
applicable to Hunt, however, because he
is responsible not only for his own
activity, but also for that of his co-
conspirators, if reasonably foreseeable
and in furtherance of the conspiracy. See
U.S.S.G. sec. 1B1.3; see also, e.g.,
Pinkerton v. United States, 328 U.S. 640,
646 (1946); United States v. Edwards, 945
F.2d 1387, 1391-97 (7th Cir. 1991). Both
constitute his relevant conduct for
purposes of sentencing. Perhaps
recognizing this principle, or maybe just
mixing the two together, the district
court stated that "I find that the amount
of foreseeable--the amount of controlled
substance reasonably foreseeable to the
defendant and thus constituting his
relevant conduct was approximately 4
kilograms of cocaine." We are unsure what
the district court meant. For in the
statement immediately prior to that one,
the district court said again that "here
the defendant is only being charged in
the sentencing phase with his actual
criminal conduct, his actual
participation, the money laundering that
he was involved in." But that, as we
said, was not accurate.
On remand, the district court will need
to explore which activity of Hunt’s co-
conspirators was reasonably foreseeable
and in furtherance of the conspiracy. We
make a few observations. First, we have
not held that the money Hunt laundered
and counted could not serve as a basis
for determining the conduct of his co-
conspirators that was reasonably
foreseeable. It stands to reason that
because Hunt knew of the drug money, he
could have reasonably foreseen the drug
sales associated with that money. That
conclusion is not preordained, however,
and the district court will need to make
all the necessary factual findings to
support such a conclusion.
Second, the United States did not
appeal, and therefore in this
circumstance our authority to alter the
district court’s judgment does not allow
for an increase in Hunt’s sentence. Aside
from this procedural limitation, Hunt’s
knowledge of the selling end of the
conspiracy was very limited, and likely
would not support any further increase.
See, e.g., United States v. Magana, 118
F.3d 1173, 1205-06 (7th Cir. 1997);
United States v. Smith, 26 F.3d 739, 746-
47 (7th Cir. 1994).
Third, the district court’s conversion
of money-to-drugs has an additional
problem. The record does not indicate
whether the money Hunt laundered and
counted was from one-kilogram sales
(possibly to the mid-level dealers Birge
supplied) or from smaller consumer-size
quantity sales (grams sizes, say,
possibly to street customers). This fact
is important in this case, because if the
district court were to translate dollars
of money laundered and counted into
quantities of cocaine reasonably
foreseeable and distributed in
furtherance of the conspiracy, it may end
up applying a one-kilogram wholesale
price (as it did the first time) when a
retail sales revenues total is more
appropriate. If the money Hunt laundered
and counted was from retail street sales,
then the total "price" of one kilogram in
the translation should have been higher
(reflecting the retail markup on smaller
quantity sales). Not adjusting for the
difference may make Hunt accountable for
a larger quantity of cocaine than was
truly reasonably foreseeable.
These matters should be taken under
consideration when the district court
resentences Hunt.
III. CONCLUSION
For the foregoing reasons, we Affirm the
conviction, Vacate the sentence, and Remand
the case for resentencing.
FOOTNOTES
/1 Hunt was convicted of conspiracy for his role as
an aider and abetter of the conspiracy. Under
federal law, the aiding and abetting statute, 18
U.S.C. sec. 2, does not define an offense; rath-
er, it makes punishable as a principal one who
aids or abets the commission of an offense. See,
e.g., United States v. Campbell, 425 F.2d 547,
553 (2d Cir. 1970).
/2 The government argues that the district court
conditionally rejected Hunt’s motions in limine
objecting to the evidence at issue, and because
Hunt did not renew his objections at trial, he
has forfeited them on appeal. If he has forfeited
his objections, the standard of review is plain
rather than clear error. See Wilson v. Williams,
182 F.3d 562 (7th Cir. 1999) (en banc). But we
need not resolve this question because Hunt
cannot prevail under either standard. Accord
United States v. Stephenson, 53 F.3d 836, 843
(7th Cir. 1995).