Argued November 30, 2015
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. 12-CR-00189-l, -2, -3 Sarah Evans Barker, Judge.
Before Rovner and Williams, Circuit Judges, and Shah, District Judge. [*]
Williams, Circuit Judge.
A jury found Anthony Lomax, Brandon Lomax, and Demond Glover guilty of conspiring to possess with the intent to distribute and to distribute 1, 000 grams or more of heroin. 21 U.S.C. § 841(a)(1). On appeal, the defendants argue that the evidence did not prove beyond a reasonable doubt that they joined the conspiracy with the intent to further the goals of the conspiracy. They maintain they were running three separate heroin businesses. We reject this argument. Anthony Lomax separately argues that he was not a part of the conspiracy, but instead had a buyer-seller relationship with Brandon Lomax. As such, he claims that the district court erred by refusing to instruct the jury about the buyer-seller relationship. We agree and remand Anthony Lomax's case for a new trial to include the buyer-seller jury instruction.
Brandon Lomax argues that he was entitled to a jury determination on whether he had two prior drug convictions, and the district court's finding that he had two prior drug convictions, which enhanced his mandatory minimum sentence to life imprisonment, violated the Constitution. We disagree and affirm his sentence.
Demond Glover also challenges his sentence stating that his case should be remanded for resentencing because he was erroneously classified as a career offender in light of Johnson v. United States, 135 S.Ct. 569 (2015). Because we find that the error was harmless, we affirm his sentence.
A. Evidence of the Conspiracy
The government suspected Anthony Lomax, Brandon Lomax, and Demond Glover of being part of a conspiracy to distribute heroin. Anthony and Brandon are cousins and Brandon and Demond are cousins. To gather evidence about defendants' operation, the government got court orders to wiretap each defendant's phone. It also used confidential informants to purchase drugs from the defendants, captured the defendants' actions on videotape, and secretly followed the defendants. Over a three-month period, the government intercepted phone calls and text messages among the defendants as well as their communications with their heroin suppliers or customers. Bureau of Alcohol, Tobacco, Firearms and Explosives Task Force Detective Jake Hart reviewed videotapes of and occasionally followed the defendants. The government also captured the defendants' sale of heroin on videotape. Most of the evidence collected focused on events that occurred at Brandon's business, Spray'Em Auto Body. A grand jury indicted Brandon, Anthony, and Demond, charging them with one count of conspiracy to possess with intent to distribute and to distribute 1, 000 grams or more of heroin under 21 U.S.C. § 841(a)(1). The indictment charged that the conspiracy lasted from 2009 until October 2012. The grand jury also charged the defendants with additional distribution or possession with intent to distribute counts, which they do not challenge on appeal.
At trial, the government showed that Brandon and Demond purchased heroin from two main sources and that all defendants sold heroin. James Kelley testified that Brandon purchased heroin from him. Gary Tate testified that Demond purchased heroin from him. Describing one of the wiretap conversations he listened to, Hart testified that a phone conversation Demond had suggested that Demond bought heroin for himself and Brandon from Tate. There was no evidence that Anthony purchased from Kelley or Tate. Instead, the evidence showed that Anthony purchased heroin from Brandon. He also purchased heroin from Demond at least once, explained in more detail below. There was also evidence of controlled purchases by confidential informants, eight purchases of heroin from Brandon, three purchases of heroin from Demond, and five purchases of heroin from Anthony.
Brandon's supplier Kelley provided evidence that Demond and Brandon were in business together. Kelley testified that on one occasion, Brandon and Kelley drove together to Demond's house so that Brandon could pick up money from heroin sales that he owed to Kelley. Kelley stayed in the car while Brandon collected the money from Demond. They then drove to another location where Brandon collected more money he owed to Kelley. Kelley also testified that Brandon told him that Brandon, Brandon's cousin, and Brandon's brothers were selling one kilogram of heroin per month.
There was additional evidence that Brandon and Demond were business partners. The government showed the jury a text message from Brandon to Demond that said "needed to borrow 50 until he call, got somebody, won't wait." Hart testified that he interpreted the text to mean that Brandon was telling Demond that he borrowed fifty grams of heroin from Demond's supply until his supplier delivered additional heroin, so he could sell heroin to an impatient customer. Demond did not respond to the text.
There was other evidence of Brandon and Demond discussing supplier issues. After Demond met with his supplier, Tate, he called Brandon. Hart testified that during the call, Demond and Brandon discussed how to settle an outstanding debt with Tate. Demond stated that he told Tate, "we just trying to get that shit out of the way, man, because we ain't trying to keep making no payments and doing all that." Hart interpreted this to mean that Demond was telling Brandon that he had told Tate that they would like to clear their drug debt.
The defendants conducted most of their transactions at Spray'Em and each sold their supply to various customers. Hart testified that Anthony and Demond were often at Spray'Em even though neither of them worked there during the relevant period. He also stated that Demond and Anthony conducted hand-to-hand transactions outside of Spray'Em on multiple occasions, selling heroin to multiple buyers. Hart also witnessed Anthony conducting additional transactions at other locations.
Most of the evidence showed that the defendants had different customers, but there was some evidence of shared customers. Communications between Brandon and Demond suggest they shared some customers. For example, Brandon and Demond discussed a shared customer named "Fat-Fat." There was evidence of a phone conversation where Demond told Brandon that Fat-Fat needed heroin by saying that "Fat-Fat just wanted his shit." Brandon and Demond also shared Anthony as a buyer. In an intercepted phone call, Anthony referred to Spray'Em as "the mall" and told Brandon he wanted to "buy something … at the mall." In another phone call, Demond instructed Anthony to "pull over to Auntie's, " where video surveillance showed Demond and Anthony conducting a hand-to-hand drug transaction. Rodney Johnson, one of Brandon's customers, testified that Anthony tried to convince him to buy his heroin from Anthony instead of Brandon.
There was one piece of evidence that Anthony and Brandon shared one customer. Marcus Perry testified that on at least one occasion, Brandon did not have heroin with him and sent Perry to Spray'Em where he could purchase the heroin from Anthony. There is additional evidence of a joint heroin business that included Anthony. Perry testified that Anthony drove Brandon to heroin deals in Indianapolis and was visibly armed while the transactions occurred. In October 2012, Demond was arrested for heroin possession. Immediately after the arrest, a friend of the defendants called Spray'Em to tell Anthony the police had arrested Demond. He asked where ...