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United States v. Flournoy

United States Court of Appeals, Seventh Circuit

November 23, 2016

United States of America, Plaintiff-Appellee,
Michael Flournoy, Defendant-Appellant.

          Argued September 15, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:12-cr-50044 - Frederick J. Kapala, Judge.

          Before Flaum, Manion, and Hamilton, Circuit Judges.


         Following a jury trial, Michael Flournoy was convicted of one count of conspiring to possess cocaine and one count of attempting to possess cocaine. Flournoy appeals, claiming he is entitled to a new trial because the prosecutor made inappropriate comments during closing argument and because the government presented testimony from a cooperating witness that conflicted with that witness's plea agreement. Flournoy also claims that the district court erred in adding several discretionary conditions to the terms of his supervised release without explanation. We affirm Flournoy's conviction, but remand for resentencing.


         In July 2012, the defendant, Michael Flournoy, met Jose Sanabria. During their first meeting, Flournoy discussed hiring Sanabria to do some construction work, but later Flournoy expressed interest in buying cocaine and heroin and offered to pay Jose a finder's fee if he found a source. A couple of days later, Jose told Flournoy that his brother, Cesar Sanabria, could help him get cocaine.

         On July 27, 2012, Jose met with Flournoy and Flournoy showed Jose the money ($186, 000) he intended to use to purchase the drugs. A few days later, on July 30, 2012, Jose told Flournoy that the supplier was ready and they agreed to meet at Cesar's apartment. There the three counted the buy money and Flournoy put it in the trunk of his silver Honda. Flournoy, Jose, and Cesar, along with Cesar's girlfriend, Jovita, drove from Chicago to Rockford for the planned cocaine deal. Unfortunately for them, they did not know that the supplier was an undercover officer.

         That undercover officer, Bob Juanez, had started talking with Cesar about a week earlier about supplying cocaine. In a recorded conversation, Cesar and Agent Juanez discussed Cesar selling marijuana to Agent Juanez and Agent Juanez selling cocaine to Cesar. Following several more recorded calls, Cesar agreed to buy six kilograms of cocaine from Agent Juanez.

         Returning to July 30, 2012: Cesar and Jovita drove to Rock-ford, Illinois, in a Chevrolet Tahoe. Flournoy and Jose followed in Flournoy's silver Honda. According to Cesar, the money was in the trunk of the Honda. Agent Juanez met Cesar at a Mobil gas station and then they drove to a Holiday Inn, followed by Flournoy and Jose.

         At the Holiday Inn, Cesar briefly spoke with Agent Juanez inside the agent's pickup truck. Cesar then exited the truck and got in Flournoy's Honda before returning to the pickup truck. At that point, Agent Juanez called his partner, Detective Barrios, who was posing as his wife, and she drove by the pickup truck and showed Cesar an ice cooler containing what appeared to be cocaine.

         In the meantime, ATF Special Agent John Richardson and Winnebago County Sheriff's Deputy Kyle Boomer were watching the drug deal go down from inside a surveillance van. Special Agent Richardson testified that he saw Flournoy go to the trunk of the silver Honda, get out a black bag and put green-wrapped bundles in the bag and then place the black bag in the back seat of the Honda. After this everyone relocated to a Wal-Mart parking lot. At this point, Flournoy exited the Honda with the black bag containing the buy money and dumped the money into the undercover agent's pickup truck. Agent Juanez then pretended to call his wife to instruct her to bring over the cocaine, but that was really the arrest signal. Officers then arrested Flournoy, Cesar, and Jose.

         The government charged Flournoy, Cesar, and Jose with conspiring to possess with intent to distribute six kilograms of cocaine and attempting to possess cocaine, in violation of 21 U.S.C. § 846. That same day, from jail, Flournoy called his wife and told her to move a jack from their garage into the alley for a scrap salvager to remove. FBI agents went to the Flournoys' home and found in the alley a drug press-a piece of hydraulic equipment used to package drugs. A DEA chemist tested the filter of the press and obtained positive results for the presence of both heroin and cocaine.

         Cesar and Jose eventually both pleaded guilty to the charges. Jose testified at Flournoy's trial, but Cesar did not. During trial, Jose testified as laid out above. Of significance for this appeal, Jose testified that Flournoy had moved the black bag with the buy money from the Honda trunk to the inside of the car. However, Jose's plea agreement stated "[t]he defendant pulled out bundles of cash from the trunk of the Honda, put the cash into a duffle bag, and returned the bag to the trunk." During the Rule 11 colloquy, the prosecutor quoted that statement from the plea agreement and Jose, under oath, stated it was correct. Cesar's plea agreement similarly identified Jose as the individual who had retrieved the money from the trunk of ...

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