United States v. Auzio Hewlett, Cross-Appellee, and Alfred Gary

453 F.3d 876, 2006 U.S. App. LEXIS 17102, 2006 WL 1881136
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 10, 2006
Docket05-2532, 05-2571, 05-2853
StatusPublished
Cited by17 cases

This text of 453 F.3d 876 (United States v. Auzio Hewlett, Cross-Appellee, and Alfred Gary) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Auzio Hewlett, Cross-Appellee, and Alfred Gary, 453 F.3d 876, 2006 U.S. App. LEXIS 17102, 2006 WL 1881136 (7th Cir. 2006).

Opinions

EVANS, Circuit Judge.

Auzio Hewlett and Alfred Gary were convicted, following a jury trial, of conspiracy to distribute and to possess with intent to distribute 50 grams or more of crack cocaine and 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and 18 U.S.C. § 2. Hewlett was sentenced to 240 months imprisonment and Gary received a life sentence. Both have appealed their convictions and the government has cross-appealed, claiming that Hewlett’s sentence is unreasonable — that is, unreasonably short.

Hewlett and Gary were in the drug business together from the mid-1990s until the spring of 2003, when they were arrested— in possession of several kilograms of cocaine and marijuana — in Missouri on their way back to Wisconsin from Texas.

Their drug operation was originally centered in Racine, Wisconsin, selling crack cocaine with a man named Deontrae May-field. For some time during 1996 or 1997, Hewlett was a student at the University of Wisconsin-Parkside, near Racine. His roommate at Parkside later stored large quantities of cocaine, marijuana, and money for Hewlett and Gary.

In 1997, Hewlett and Gary took May-field to Janesville, a one-hour drive west from Racine. Mayfield realized that the crack market was much better in Janesville than Racine: the profits were higher and the streets were safer because of the absence of gang activity. They expanded the operation to Janesville. In fact, May-field moved to Janesville in 1997 to continue sales. In Janesville, the three often used juvenile girls to conduct their business, surmising that the girls would face less severe punishment if caught. Rather than sharing the profits of the drug sales with the girls, Mayfield and Hewlett would buy things for them — clothing, food from McDonald’s. This stingy treatment of their employees apparently didn’t engender an abundance of loyalty to the Gary/Hewlett operation as some of the girls became government witnesses against them.

In 1999, Hewlett was arrested in Janesville when one of the girls, April Peterson, drove — in a borrowed car — to his motel to drop off money and pick up more crack. There were police in the parking lot, but she nevertheless went to Hewlett’s room. [879]*879When she left with drugs, she apparently panicked at the presence of the police. She drove next door to a gas station, abandoned the car, called a friend to come and get her, and threw the drugs in a garbage can, all of which led to the arrests of Hewlett and others. Both before and after Hewlett’s arrest, he and Gary continued to sell crack in Racine.

In 2003, Hewlett and Gary made two trips to Texas. Along on the second trip were Cassandra Maiden and Wythena Facen. On Interstate 44 south of St. Louis, Hewlett, who was driving, made a quick lane change that caused the SUV to veer onto the shoulder of the road. This maneuver caught the attention of a police officer in a marked squad car. As the squad approached their vehicle, Hewlett instructed Facen and Maiden to say they were traveling from Oklahoma. Facen was in the front passenger seat, Maiden was in the backseat, and Gary was lying in the cargo area of the SUV hiding under blankets. When the police reached the SUV, Hewlett presented a fraudulent Ohio driver’s license. He acknowledged that the vehicle was a rental and, despite the fact that Gary was in the back under blankets, said the paperwork was in the cargo area. When the officers looked in the cargo area, they found Gary, who also produced a fraudulent Ohio driver’s license. Because of these and other suspicious aspects to the stop, the officers brought in a narcotics-sniffing dog. Not surprisingly, Fido sniffed and indicated that drugs were present. The officers cut open an old, solid-sounding spare tire and found over three kilograms of cocaine and 17 packages of marijuana. That was the end of the Hewlett-Gary drug business.

In this appeal, Hewlett and Gary first argue that there was an impermissible variance between the single conspiracy charged in the indictment and the proof at trial. They contend that rather than one overarching conspiracy, there are actually three smaller conspiracies: a Janesville conspiracy, a Racine conspiracy, and a Missouri “incident.” We disagree, but even were we to agree, the claim would fail.

A claim of a fatal variance is treated as an attack on the sufficiency of the evidence. United States v. Handlin, 366 F.3d 584 (7th Cir.2004). Even if the evidence at trial reveals the existence of multiple conspiracies, a variance is not fatal if a reasonable juror could have found beyond a reasonable doubt that the defendants were part of the single, charged conspiracy. Id. We view the evidence in the light most favorable to the government. Id. Furthermore, the defendants must show that the variance prejudiced them. United States v. Messino, 382 F.3d 704 (7th Cir.2004).

It is clear that for years Hewlett and Gary were involved together in the sale of drugs. It is of no consequence that they sold their wares in two locations and drove drugs though a third. Neither of the men claims — or could claim — that he was merely a buyer in a buyer-seller relationship with the other. Furthermore, neither could claim that he was involved in one smaller conspiracy but not another small conspiracy. Each was involved in this business from beginning to end in Racine, Janesville, and, for that matter, in Missouri. The evidence here allowed a reasonable jury to find that Hewlett and Gary were part of a single conspiracy.

But above all, there is no way to show that either was prejudiced by being charged in one, rather than three conspiracies. Neither could claim, for instance, that while he might have sold drugs in Racine, he had nothing to do with the Janesville operation. They were both involved in all aspects of this business. Neither defendant could receive a lesser sen[880]*880tence if he were convicted of two or three smaller conspiracies, rather than the larger one. There simply is no prejudice.

Hewlett and Gary also contend that the district judge committed reversible error in how he responded to a question the jury asked during its deliberations. The question was, “Can we find one defendant guilty and one not guilty?” The judge proposed to answer the question by saying:

Your instructions require that you consider each defendant’s innocence or guilt separately. This answer is part of the written instructions that have been provided to you. Also keep in mind that you must follow all of the instructions that you have been given by the court.

Counsel for Gary objected to the word “innocence,” pointing out that the duty of the jury is not to determine innocence, but rather a lack of guilt. Counsel suggested that a simple “yes” would be a sufficient answer to the question.

As if to illustrate the be-careful-what-you-wish-for principle, the judge responded:

Yeah. It probably would be appropriate to just refer to “guilt,” but I put “innocence” in there for your benefit, and since you don’t want it it’s out.... It’s out. Enough said.... It’s out.

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Cite This Page — Counsel Stack

Bluebook (online)
453 F.3d 876, 2006 U.S. App. LEXIS 17102, 2006 WL 1881136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-auzio-hewlett-cross-appellee-and-alfred-gary-ca7-2006.