United States v. Toliver

374 F. App'x 655
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 10, 2010
DocketNo. 09-1303
StatusPublished
Cited by1 cases

This text of 374 F. App'x 655 (United States v. Toliver) 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. Toliver, 374 F. App'x 655 (7th Cir. 2010).

Opinion

ORDER

Police officers in Nebraska discovered 900 pounds of marijuana in an SUV during a traffic stop in September 2006. The driver agreed to cooperate with the DEA and delivered his cargo to Reginald Bick-ham, a marijuana distributor in Milwaukee, Wisconsin. Bickham was arrested and fingered people below him in the distribution chain, including the defendant, Dwayne Toliver, who was arrested in May 2007. The other participants pleaded guilty, but Toliver insisted that Bickham had falsely accused him to curry favor with prosecutors. A jury rejected this defense and found Toliver guilty of conspiracy to distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1). The drug quantity and his criminal history triggered a 10-year statutory minimum, see id. § 841(b)(l)(B)(viii), which the district court imposed. Toliver filed a notice of appeal, but his appointed lawyers move to withdraw because they cannot find a nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Toliver opposes counsel’s submission. See CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Toliver’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

At trial Bickham testified that he was a small-time distributor until late 2004 when a willing source started fronting him large amounts of marijuana. Initially he received 20-pound shipments from this supplier, but over time the weight increased until reaching the 900 pounds intercepted by police. Bickham did not sell directly to users but instead fronted the drug to dealers who employed their own distributors or sold it themselves. He explained that Toliver, whom he knew only as “Big Baby,” owned the car wash he patronized and sold small amounts of marijuana for him as early as 2]6 to 3 years before the Nebraska seizure. As his drug business grew, Bickham continued, he needed a safe place to transfer the marijuana from the supplier’s car to his, and Toliver let him use the car wash. After that, said Bickham, he began giving Toliver more marijuana to sell, ranging from 5 to 100 pounds. Bick-ham added that Toliver was always present when marijuana was being unloaded at the car wash. Another man, Bickham’s longtime friend Rahjee Shabazz, was also present on occasion. Bickham stopped using the car wash in 2005 but continued fronting marijuana to Toliver until the next year when he failed to pay for 15 pounds worth about $10,000. At that point, said Bickham, he ended all contact with Toliver. Bickham’s cell phone records for 2006 corroborate that he and To-liver conversed more than 170 times in January and February before the calls ceased.

Before his arrest Bickham had been using notebooks and scraps of paper to track his drug business. He gave these ledgers to investigators and explained at trial that he started keeping records when his operation became too big to track mentally. In his ledgers he recorded the weight of the marijuana and the amount of money paid or owed by his customers, who were identified only by initials or nicknames. Their real names were often unknown to him. Bickham testified that Toliver’s transactions were listed under “Big Baby” or “Wash” — the latter a nickname referring to his car wash but that Bickham never used when speaking with Toliver.

[657]*657Shabazz, Bickham’s Mend, also pleaded guilty and testified for the government. He knew Toliver only as “Big Baby” and first met him when Bickham was using the car wash to unload marijuana. Bickham would call Toliver when a shipment arrived, and Toliver would let them into the car wash to unload and weigh the drugs. Bickham fronted part of those shipments to Shabazz and Toliver. Shabazz testified that investigators showed him Bickham’s ledgers and asked if he was the customer identified as “Rha.” He told the jury he assumed that “Rha” was short for Rahjee even though Bickham never called him by that nickname. Shabazz confirmed that the numbers in the ledgers were consistent with amounts of drugs Bickham had fronted him and the money he owed in return. Shabazz also confirmed that the directory copied from his cell phone by police after an unrelated arrest in 2005 included Toliver’s number stored under “Big Baby.”

Four other buyers of Bickham’s marijuana likewise pleaded guilty and testified for the government. One of them knew Toliver socially, but otherwise none was aware that he was buying from Bickham, and neither did they know any of Bick-ham’s other customers. All four, though, recognized in Bickham’s ledgers their own transactions with him.

Toliver took the stand and denied selling drugs. He said he met Bickham in 2005 when Bickham started coming to his car wash 2 or 3 times a week with up to 15 different vehicles. Toliver insisted that he uses the nickname “Man,” which is what Bickham called him, not “Big Baby” or “Wash.” Toliver also acknowledged that Bickham telephoned him frequently, but always concerning his cars. And he in turn called Bickham, he continued, because Bickham had a habit of being late to retrieve his cars. Toliver testified that Bick-ham quit coming to his car wash early in 2006 but did not tell him why.

Other than his own denials, Toliver’s defense relied on cross-examination of the government’s witnesses and his fiancee’s testimony that she never saw him with large quantities of drugs. Defense counsel questioned Bickham about his motivation for testifying and implied that he was lying about Toliver to evade a 10-year statutory minimum and an even-higher imprisonment range under the guidelines. Counsel questioned why Bickham had used two different names for Toliver in his ledgers, but the nicknames of other customers did not vary. Counsel elicited that it took Bickham months to provide enough information for investigators to begin identifying the customers in his ledger entries, and Bickham agreed that he was under pressure “to put a name with every one of those nicknames.” Bickham countered, however, that even at the time of trial there were still a number of ledger entrants who remained unidentified and at large.

In this court both counsel and Toliver consider whether Toliver could tease a nonMvolous issue from the differing dates of the conspiracy alleged in the indictment and proven at trial. The indictment alleges a conspiracy beginning in January 2006 and continuing until the date of Biekham’s arrest in September 2006, but the evidence at trial showed that Toliver and Bickham had engaged in drug transactions beginning in 2005 and continuing through February 2006. Toliver proposes to argue that the government actually proved two conspiracies — one in 2005 involving Bick-ham and Shabazz using the car wash to unload drugs and the other beginning in January or February 2006 — and thus the lack of a multiple-conspiracy jury instruction sullies his conviction. And counsel also examine whether Toliver could argue that the differing time frames led to a constructive amendment of the indictment, [658]*658a fatal variance, or proof insufficient to convict.

All of these contentions would be frivolous.

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Bluebook (online)
374 F. App'x 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-toliver-ca7-2010.