September 15, 2016
from the United States District Court for the Northern
District of Illinois, Western Division. No. 3:12-cr-50044 -
Frederick J. Kapala, Judge.
Flaum, Manion, and Hamilton, Circuit Judges.
MANION, CIRCUIT JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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 ...