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United States v. Jones

United States Court of Appeals, Seventh Circuit

September 20, 2017

United States of America, Plaintiff-Appellee,
Toby Jones, Mario Whitfield, and Kelsey Jones, Defendants-Appellants.

          Argued May 25, 2017

         Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR155 - Amy J. St. Eve, Judge.

          Before Wood, Chief Judge, and Bauer and Hamilton, Circuit Judges.


         In December 2013, a confidential informant ("CI") informed the Bureau of Alcohol, Tobacco, Firearms, and Explosives about Defendant Toby Jones, the leader of a drug-distribution operation on Chicago's West Side. The CI introduced Toby and his brother, Defendant Kelsey Jones, to ATF Agent Christopher Labno, who posed as a firearms and drug dealer. During several controlled drug purchases, Toby negotiated a drugs-for-guns transaction with Agent Labno. Eventually, Toby instructed one of his drug workers, Wesley Fields, to complete the transaction; Fields was arrested immediately after the exchange. Thereafter, Toby and Kelsey engaged in a week-long effort to track down and kill the CI who arranged the deal, resulting in two separate shootings. In the later shooting, Kelsey fled the scene in a getaway car driven by Defendant Mario Whitfield, whose counsel filed an Anders brief that we consider later on.

         Toby and Kelsey were later arrested, charged, and convicted of several crimes based on these events. Now, they both raise challenges to those convictions; Kelsey also challenges his sentence. We affirm.

         I. BACKGROUND

         A. Facts

         Kelsey was tried by jury and Toby proceeded to a bench trial. At this joint trial, the government established the following facts, which we view in the light most favorable to the prosecution. See United States v. Resnick, 823 F.3d 888, 893 (7th Cir. 2016).

         1. Kelsey's Role

         Kelsey worked for Toby, selling crack cocaine and heroin to customers. He used a cell phone, which Toby provided, to take orders from and make deliveries to customers; he and Fields worked the drug phone in alternating shifts. After Kelsey completed a drug sale, he brought the money back to Toby. Kelsey also packaged drugs for Toby and provided security to him during drug sales. Particularly he provided security for Toby and packaged the drugs that were sold to Agent Labno on March 19, 2014. In addition, Kelsey allowed Toby to store drugs in his apartment.

         2. Drugs-For-Guns Exchange

         Between December 2013 and March 2014, the CI and Agent Labno met with Toby six times to purchase crack cocaine with all purchases taking place near the CI's apartment building located at 464 North Austin Boulevard, Oak Park, Illinois. All these meetings were audio and video recorded. At several of these meetings, Toby discussed the purchase of guns.

         On January 15, 2014, Toby told Agent Labno that he wanted to purchase a handgun capable of holding 30 rounds of ammunition in the magazine, but not to discuss guns over the phone. On February 4, 2014, Agent Labno showed Toby pictures of guns that he said he had for sale. When shown the picture, Toby specifically asked Agent Labno about the cost of the Glock with an extended magazine and extended clip ("Glock"). Agent Labno responded that he wanted approximately $450 or "six jabs" of crack cocaine. (One jab is a package that typically contains 10 to 12 individual use amounts of crack cocaine or heroin.) Toby responded, "Yeah, " and told Agent Labno to bring the Glock to him. He also told Agent Labno that he wanted to purchase the Glock for himself and the Beretta pistol for "somebody else."

         On February 26, 2014, the CI and Agent Labno met with Toby to conduct another controlled purchase of crack cocaine. There, Toby confirmed his intention to purchase the Glock in exchange for crack cocaine. Similarly, Toby, who was accompanied by Kelsey confirmed that same intention to Agent Labno at a controlled purchase of crack cocaine on March 19, 2014.

         On March 25, 2014, Agent Labno and the CI placed a recorded call to Toby. The CI asked Toby if he still wanted to purchase guns from Agent Labno. Toby responded, "Hell yeah I want them." Further, Toby stated, "I just want that [Glock], man." Agent Labno confirmed with Toby that the price was six jabs for the Glock.

         On March 26, 2014, Toby sent a text message to Agent Labno, explaining that he was sending Fields to conduct the guns-for-drugs exchange. Agent Labno confirmed that the price was six jabs of crack cocaine for the Glock. Toby responded, "Yep."

         Around the same time, Toby called Fields to meet him at Kelsey's apartment to pick up the crack cocaine to pay for the Glock. Toby gave Fields six jabs of crack cocaine and approximately $450 in cash; he instructed Fields to purchase the Glock for him and an additional gun for himself. He further instructed Fields to bring the Glock "straight to him" after purchasing it.

         Upon Toby's instruction, Fields then met with Agent Labno and the CI. Agent Labno presented Fields with multiple guns. Fields picked out the Glock for Toby and the Beretta for himself. He was immediately arrested after he gave the crack cocaine and cash to Agent Labno in exchange for the guns.

         About an hour after Fields' arrest, the CI called Toby, asking about his payment for arranging the drugs-for-guns transaction. Toby told the CI that Fields had not returned from the drugs-for-guns transaction, and he asked the CI when he had last seen Fields. Toby assured the CI that he would be paid for arranging the deal.

         ATF agents placed the CI in a hotel room where he was instructed to stay until Toby was in custody. Despite these instructions, the CI drove back to his apartment. During the drive, the CI received an incoming call from Toby who sounded agitated and repeatedly asked the CI about the CI and Fields' whereabouts. The CI told Toby that he was driving back to his apartment and that he had completed the gun deal with Fields earlier that day, but he did not know Fields' current location. Toby placed a total of 12 outgoing calls to Fields and 15 outgoing calls to the CI in the hours after Fields' arrest. Toby sent Fields a text message, telling him to "Call me let me know you alright."

         3. Retaliation Conspiracy

         On March 27, 2014, shortly after midnight, Kensha Barlow was shot in his apartment located at 464 North Austin Boulevard, Oak Park, Illinois (the CI lived in the same building, but in the unit on the floor below). Barlow heard someone knock on his door and asked who was there. A male voice responded: "It's me ... You know who it is, open the fucking door." Barlow looked through the door's peephole, but the person in the hallway covered the peephole with a finger. Once the other person removed his finger from the peephole, Barlow saw two males standing in the hallway; he did not know who either of the individuals were. Shortly after, Barlow heard shots ring out, and he was shot in the leg. (He later identified Toby as one of these two males.)

         Around March 30, 2014, Kelsey called Marty Smith, one of his drug customers, and asked Smith to come to his apartment. Smith and the CI knew each other and lived in the same apartment building. When Smith arrived at Kelsey's apartment, Toby and Kelsey were there. Kelsey questioned Smith about the CI's whereabouts and what kind of car he drove. Smith told Kelsey that he had not seen the CI recently.

         On April 2, 2014, the CI's brother ("Mark") and sister-in-law ("Christy") came to Chicago to stay with the CI in his hotel room. Mark, Christy, and the CI drove around the CI's neighborhood. Near the CI's apartment building, the CI saw Kelsey wearing a black-hooded sweatshirt. The CI observed that Kelsey "looked right at" him.

         Around 7:24 p.m. that evening, Kelsey called Smith and asked him if there were any cameras in the parking lot outside of the CI's (and Smith's) apartment building. At approximately 8:55 p.m., the CI drove back to his apartment with Mark and Christy. Once the CI parked his vehicle, Kelsey exited a red minivan nearby, approached the CI's vehicle, and fired three shots at ...

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