United States v. Charles Daniel Binkley

903 F.2d 1130
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 12, 1990
Docket88-2525
StatusPublished
Cited by33 cases

This text of 903 F.2d 1130 (United States v. Charles Daniel Binkley) 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. Charles Daniel Binkley, 903 F.2d 1130 (7th Cir. 1990).

Opinions

KANNE, Circuit Judge.

Defendant-appellant Charles Daniel Bink-ley appeals his conviction of one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and two counts of use of a telephone to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b). He argues that there was insufficient evidence to convict him of these offenses, and that it was error for the district court to admit evidence of his personal drug use at trial. For the reasons discussed below, we affirm.

I. Facts

In this case, both the defendant-appellant, Charles Daniel Binkley, and the government acknowledge the presence of a large conspiracy to distribute marijuana, involving witnesses Jay Robinson, Jerry Solomon, and several other people. Bink-ley, however, repeatedly and emphatically denies that he participated in this conspiracy. Although he admits to having purchased at least marijuana from the two co-conspirators mentioned above, he maintains that these purchases were for his own personal use, a defense called the “buyer-seller defense.”

In 1982, Binkley purchased three-fourths of a pound of marijuana from Robinson. He claims that this marijuana was for his own personal use, and testified at trial that he had hidden this marijuana in his woodshed and that part of it was destroyed by mice. In March of 1983, defendant purchased four pounds of “shake” marijuana from Solomon. “Shake” is the leaves which are trimmed off marijuana buds when they are cleaned. Although it is largely unsmokeable, there usually is about one ounce of marijuana buds still left in every pound of shake. Binkley testified at trial that it was his intent to purchase this shake, which usually is not saleable, and to separate the buds from the leaves to obtain marijuana for his personal consumption.

[1132]*1132The government, on the other hand, claims that Binkley bought this shake from Solomon in order to resell it. On March 17, 1983, Binkley had a telephone conversation with Solomon in which he said that he “might have somethin’ workin’ ” and might need to replace the four pounds of shake he previously purchased from Solomon. Binkley told Solomon he might need it by the next day but wouldn’t know until the afternoon. Binkley told Solomon “I got one in the hay.”

On March 18, 1983, Binkley called Solomon again. He said, “I need ’em.” When asked when, he replied that he would need them somewhere around noon. The following dialogue then occurred:

Solomon: No problem.
Binkley: No problem? I looked at those others ...
Solomon: Uh-huh.
Binkley: And they’ve lost some, I guess because of the humidity or lack of.
Solomon: Don’t worry about it.
Binkley: Okay? I mean ...
Solomon: I’ll just bring you somethin’ like [unintelligible] little extra.
Binkley: It’s about three. Little ones.
Solomon: Alright, s- so you need five more.
Binkley: No. I need four and, four and, uh ...
Solomon: Four and whatever.
Binkley: Four and just a little bit.

In a subsequent conversation on March 23, 1983, Binkley told Solomon that he was trying to do something real soon. Solomon replied that he would hold on to them and “make sure they won’t go anywhere if you can do any good.” Binkley stated that it might be three or four days before he knew for sure. After several moments of conversing on non-drug-related topics, Binkley indicated that “this is kind of exciting.” He also said “that I’ll try to get this other thing worked out, ’cause I could use that.” Solomon responded that so could he, because things had been kind of slow.

Solomon testified at trial that these phone conversations referred to “shake” marijuana and that it appeared that Bink-ley was trying to set up a marijuana deal. On the other hand, Binkley testified at trial that these conversations referred to Bink-ley’s attempt to replace four pounds of shake Solomon had sold to him earlier that month, but which had turned out to be wet and moldy. Binkley claims that the second four pounds also turned out to be wet and moldy and that he later attempted to get his money back. He further testified that what he said to Solomon on March 17 was “I got one and a hay,” meaning that he had the $150.00 he still owed to Solomon. The March 23, 1983, conversation, Binkley testified, referred to his acknowledgement that he was trying to obtain marijuana elsewhere.

On March 29, 1983, Solomon and Binkley again spoke on the telephone. The pertinent part of their conversation went as follows:

Binkley: Well, I’m in need.
Solomon: No kiddin’.
Binkley: No. Maybe, maybe you don’t understand what I’m talkin’ about.
Solomon: Oh, okay. You're in need of the, that other thing.
Binkley: Yeah.

Solomon then told Binkley that he had to see someone, probably on Thursday, and would get back with him. On March 31, 1983, Binkley and Solomon again spoke on the phone. Solomon told Binkley that he had him taken care of and Binkley said he’d be over about 6:30. Solomon testified at trial that these conversations concerned cocaine, although he did not specifically recall the occasion. Binkley, on the other hand, contends that these conversations had to do with his attempt to recover the $250.00 he already had paid to Solomon for the “shake” marijuana, both deliveries of which turned out to be wet and moldy and to smell like ammonia when dried. Binkley stated that he thought that Solomon had to find $250.00 to repay him, and claimed not to know that Solomon kept $10-20,000.00 in cash around his house, as Solomon had testified.

[1133]*1133On June 2, 1983, the FBI executed a search warrant on Solomon’s property and confiscated several marijuana plants. The next day, Binkley called Solomon, and Solomon warned Binkley about the raid and told him to stay away from him. At trial, Solomon testified he only warned those people who were involved in drug activities with him.

Binkley was charged in a three-count indictment with one count of conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846 and with two counts of using an interstate facility, the telephone, to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b). At trial, Solomon, Robinson and his brother testified about their knowledge of Binkley with regard to the marijuana conspiracy.

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Bluebook (online)
903 F.2d 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-daniel-binkley-ca7-1990.