U.S. vs. James Kincannon

At 77 years old, James Kincannon
makes for an unlikely methamphetamine dealer. But looks
can be deceiving. Kincannon was convicted of conspiring
to distribute and distributing methamphetamine after two
controlled buys nailed him as a dope dealer. Kincannon
was sentenced to 30 years in prison, and he now challenges
his conviction on the conspiracy count and his sentence.
Curiously, Kincannon mounts no direct challenge to his
conviction on the distribution charge for which he received
a concurrent 30-year sentence.

Kincannon’s demise began when a junkie, caught with a
small amount of drugs, fingered Kincannon as a dealer and
decided to cooperate with the police. The informant, who
testified at trial, agreed to wear an audio and video wire
while purchasing half an ounce of methamphetamine from
Kincannon. He went to Kincannon’s home for the buy, but,
at that time, Kincannon only had a quarter ounce to sell.
Kincannon asked the informant to stay put while he went
to get more drugs, but didn’t say where he was going.
Police officers (some of whom also testified at trial) then
followed Kincannon to the home of a woman named
Cheryl Dill. The officers watched as Kincannon entered
Dill’s home, stayed briefly, and then left. Kincannon then
returned to his home, where he consummated the drug
deal—half an ounce for $1,100.

Five days later the officers set up a second controlled
buy. Again, Kincannon didn’t have enough to meet the
informant’s half-ounce order, so he asked the informant to
wait while he fetched more drugs. This time, instead of
heading straight to Dill’s house, he stopped off at another
location where he met Scott Thorburg. The officers were
familiar with Thorburg, who had been arrested just eight
months earlier. Kincannon then got into Thorburg’s tow
truck (he owned a tow yard) and Thorburg drove both of
them to Dill’s house. Thorburg waited in the car while
Kincannon went inside to pick up the drugs. Thorburg
then dropped Kincannon off at his car and they parted
ways. Shortly thereafter, both men were arrested following
traffic stops. On Thorburg officers found two bags of
methamphetamine, and on Kincannon they found an
empty bag with methamphetamine residue, along with
some of the prerecorded bills used in the first controlled
buy. Kincannon was eventually indicted for distributing
methamphetamine and conspiring to distribute methamphetamine
with Dill, her supplier, and others “known and
unknown.” 21 U.S.C. §§ 841(a)(1), 846.

Thorburg, who testified at the trial, was no stranger to
the drug trade. Once an engineer for ABC Sports who
traveled across the country to film Monday Night Football,
NASCAR, and PGA tournaments, he fell on hard times
when he started using methamphetamine. As his use
escalated, his life fell further into shambles; he eventually
lost his job, divorced his wife, and took to selling drugs to
support his own habit. In fact, Thorburg had been
Kincannon’s dealer for five or six months, until he got
busted by the police. That arrest scared Thorburg enough
that he quit dealing, but he was addicted to methamphetamine
and needed a source for his personal fix. For that, he
turned to Kincannon. At first, Kincannon charged $800 for
half an ounce, but over time, the price rose to $1,000.
Eventually, Thorburg began chauffeuring Kincannon to
Dill’s house. Thorburg testified that he did so on at least six
occasions. Thorburg knew Dill by name, and Kincannon
shared that he suspected Dill got the drugs from a jockey
who lived in Kansas.

Dill also testified at the trial. She explained that she
started selling methamphetamine at the suggestion of her
ex-boyfriend (and later, supplier), who was a jockey in
Kansas. Her first sale was an eight-ball (3.5 grams) to a
childhood friend. She asked her friend to introduce her to
Kincannon because she needed someone who “got rid of
drugs.” The friend obliged, and Kincannon and Dill
embarked on what turned out to be a short-lived business
relationship. Over a six-week period Kincannon purchased
at least 12 ounces of methamphetamine from Dill—a half
an ounce to an ounce at a time on 15 different occasions.
The terms of the transactions were standardized; Dill
charged $900 for half an ounce and $1,800 for an ounce. She
emphasized that Kincannon was to come to her home
alone, saying “I told him I didn’t want him to bring
anybody to my house, that he was to come alone because
I knew he was doing something illegal and I was afraid
that—I didn’t want to meet his customers and I didn’t
want them to know me.” Dill did see someone in a tow
truck—Thorburg—outside her home a half a dozen or so
times. Kincannon explained that the man was his customer
and left it at that. Thorburg never came inside Dill’s home
and Dill could not even identify his race or age.

At the close of the government’s case (which also happened
to be the end of all the evidence since Kincannon
declined to present anything), Kincannon filed a motion for
a judgment of acquittal, which the district court denied.
The government’s closing argument came next, during
which the prosecutor made an analogy to an Academy-
Award-winning movie: The Godfather. Recounting a pivotal
scene where the director simultaneously presented assassinations
orchestrated by the protagonist, Michael Corleone,
the prosecutor explained that he, like the movie’s director,
would attempt to seamlessly tell the “story of what happened”
in this case. The prosecutor also recounted
Thorburg’s drug-fueled demise, noting that “it illustrates
the power of this stuff and why we’re on a serious purpose
today in considering the charges against Mr. Kincannon.”
Eventually, the jury found Kincannon guilty on both the
distribution and the conspiracy counts and rendered a
special verdict, finding that the conspiracy involved 500
grams or more of methamphetamine.

At sentencing Kincannon made no objections to the
proposed guidelines range of 360 months to life. Instead,
he asked for a below-guidelines sentence, noting that, at 77
years old, a long term of imprisonment amounted to a life
sentence. The district court rejected this request, pointing
to Kincannon’s propensity for criminal activity—he had a
slew of prison convictions, and as the court noted, he had
“done time in the State system, Illinois and Missouri, and
in the Federal System.” A 360-month sentence, the bottom
of the guidelines range, was imposed on both counts of
conviction.

Kincannon first argues on appeal that the district court
erroneously denied his motion for a judgment of acquittal,
claiming there was insufficient evidence to prove that he
and Dill conspired together to distribute drugs. He claims
that they only had a buyer-seller relationship. An agreement
to exchange drugs for money (or something else of
value)—the crux of the buyer-seller transaction—is insufficient
to prove a conspiracy. United States v. Colon, 549 F.3d
565, 567-68 (7th Cir. 2008). That’s because a conspiracy is
more than an agreement, it’s a knowing and intentional
agreement between two or more people to fulfill a particular
criminal objective. The pact to sell drugs is itself a
substantive crime with no separate criminal aim and,
therefore, alone can add no conspiracy liability to the mix.
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en
banc) (plurality). Some evidence of an accord to commit
another crime on top of the drug sale is required; in this
case, we ask whether there is some evidence that
Kincannon agreed with someone else to the further distribution
of methamphetamine?

Kincannon claims that he had no such agreement with
Dill, and he has a point. Kincannon and Dill had a relatively
brief business relationship. Kincannon purchased
drugs from Dill—always in cash, on the barrelhead—over
a six-week period, 15 times total. Dill knew that Kincannon
was reselling the drugs, but that’s not enough to prove a
conspiracy. That knowledge may or may not have made
Dill an aider and abettor to Kincannon’s illicit activities,
but it does not make the two coconspirators because they
had no agreement to resell the methamphetamine to
anyone. See Lechuga, 994 F.2d at 349. What’s more, Dill had
no personal investment in Kincannon’s drug distribution—
she had already been paid for the drugs. See United
States v. Rock, 370 F.3d 712, 715 (7th Cir. 2004) (affirming
conviction when defendant expected to be paid from the
resale of the drugs). In fact, she emphasized that she
wanted nothing to do with Kincannon’s business or his
customers. The terms of their sales were standardized—
Kincannon paid $900 for a half ounce and $1,800 for
an ounce—but that says nothing about whether Dill agreed
to help Kincannon’s distribution efforts. Regular purchases
on standard terms cannot transform a customer into a
coconspirator. United States v. Thomas, 150 F.3d 743, 745
(7th Cir. 1998) (crime of conspiracy cannot be equated with
repeated transactions).

So far, this case is on all fours with our recent opinion in
Colon. In Colon, the defendant was convicted of conspiring
with his drug suppliers to possess cocaine with intent to
sell. Colon, like Kincannon, repeatedly purchased drugs for
resale from his suppliers over, at most, a six-week period.
The terms, likewise, were standardized and the dealings
were in cash. In Colon, the government contended that the
prolonged, repeated, and standardized purchases of
distribution quantities of drugs was enough to support
the conviction. We disagreed. When stripped to its bare
bones, the government’s theory there, as it is here, “reduces
to an assertion that a wholesale customer of a
conspiracy is a co-conspirator per se,” a position we did
not embrace. Id. at 569.

Sensing the weight of Colon, the government attempts to
distinguish Kincannon’s case. It argues that Kincannon was
more than just a customer, but that he also recruited other
buyers—that is, Thorburg—for Dill, thereby throwing
himself into her drug distribution ring. But this argument
is not born out by the record. Throughout her testimony
Dill identified Thorburg as Kincannon’s customer, not her
own. Likewise, Thorburg testified repeatedly that he
bought drugs from Kincannon, not Dill. Dill never met
Thorburg (she could not even identify his race), let alone
establish the terms of the sales as she would have had to do
with any other buyer. Thorburg confirmed that he never
went inside Dill’s house. There is nothing in the record that
even hints that Dill sought Kincannon’s help in increasing
her customer base, a particularly telling omission since it
was just such a request to her first customer that led to her
relationship with Kincannon. Dill knew how to network to
get customers, and nothing suggests that she ever asked or
received such help from Kincannon. Thorburg’s purchases
from Kincannon did mean, ultimately, that Dill could sell
more drugs. But that minimal interest is no different for any
seller who off-loads goods to a distributor, and we have
already held that a wholesale customer and his suppliers
are not necessarily in cahoots. Colon, 549 F.3d at 569.

This analysis, however, does not mean that we must
reverse Kincannon’s conviction. The indictment did not
limit the conspiracy to Dill and Kincannon—the grand jury
included “others known and unknown”—and the evidence
does support the existence of a conspiracy between
Kincannon and Thorburg. The fact that the indictment did
not name Thorburg is irrelevant. United States v. Avila, 557
F.3d 809, 816 (7th Cir. 2009) (proving conspiracy does not
require the government to show that the defendant conspired
with the individuals named in the indictment);
Lechuga, 994 F.2d at 350, 352. “Others known and unknown”
could have certainly included Thorburg, and there
is no requirement that a conspiracy indictment identify
uncharged coconspirators.

At trial, the government honed in on the alleged conspiracy
between Dill and Kincannon, and Kincannon takes
issue with the government’s attention on appeal to his
relationship with Thorburg. Kincannon argues that we are
precluded from considering his dealing with Thorburg, but
cites no authority for this proposition. Cf. Lechuga, 994 F.3d
at 350 (considering defendant’s relationship with unnamed
coconspirator, even though that relationship was not the
focus of the trial or appeal). In any event, Thorburg
testified at length about his relationship with Kincannon,
and our job when evaluating the sufficiency of the evidence
is to focus on the facts put before the jury. We must “view
all the evidence and draw all reasonable inferences in the
light most favorable to the prosecution and uphold the
verdict if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Hicks, 368 F.3d 801, 804-05
(7th Cir. 2004) (emphasis added) (quotations and citations
omitted).

Kincannon’s relationship to Thorburg was markedly
different from his relationship with Dill. First, Thorburg
and Kincannon dealt with each other for about a year. For
months Kincannon was purchasing drugs from Thorburg.
After Thorburg’s initial arrest, he turned to Kincannon and
they had, as he testified, “reverse roles.” Kincannon began
supplying Thorburg with drugs even before he met Dill.
There was also a high level of trust between the two, which
became evident once Kincannon started buying drugs from
Dill. United States v. Hach, 162 F.3d 937, 943 (7th Cir. 1998)
(noting that a demonstrated level of mutual trust is circumstantial
evidence of a conspiracy). On at least six occasions,
Thorburg drove Kincannon to Dill’s house to pick up drugs.
United States v. Adkins, 274 F.3d 444, 450 (7th Cir. 2001)
(reasoning that traveling with coconspirator to purchase
drugs supported conspiracy conviction). Kincannon did not
trust just anybody to accompany him. The confidential
informant, on the two occasions he purchased drugs, was
asked to stay at Kincannon’s home while Kincannon went
to Dill’s to pick up the goods. What’s more, Kincannon
shared with Thorburg details about his business—revealing
Dill’s identity and address and explaining that he suspected
Dill’s supplier was a jockey from Kansas—a step he did not
take with the informant.

Most importantly, there was a quid pro quo between
Kincannon and Thorburg beyond the sale of the drugs.
Avila, 557 F.3d at 816 (“The government need only show an
agreement that goes beyond the individual sale between
buyer and seller.”). Because Thorburg drove to Dill’s
house, Kincannon got extra cover. Thorburg’s car, not his
own, would be seen by any officers who might be keeping
watch over Dill’s home. For taking on this risk, Thorburg
got to purchase his drugs at a discount price. Thorburg
testified that he paid anywhere from $800 to $1,000 for a
half ounce of methamphetamine. Kincannon—who paid
$900 for a half ounce—may have been charging Thorburg
below or at-cost rates. Even at $1,000, Thorburg was paying
$100 less than Kincannon’s other customers, like the
confidential informant. The jury could reasonably infer
from this evidence that Thorburg and Kincannon agreed to
more than just the individual drug purchases, but that they
were cooperating to facilitate Kincannon’s further drug
distribution efforts.

There is one more wrinkle that we must address. The
indictment accused Kincannon, and the jury, through a
special verdict, found that the conspiracy involved 500
grams or more of methamphetamine. These types of
indictments and special verdicts, of course, are standard
after Apprendi v. New Jersey, 530 U.S. 466 (2000), which
requires the jury to find beyond a reasonable doubt any
fact that raises the defendant’s statutory maximum sentence.
A defendant, like Kincannon, who has a prior felony
drug conviction (covered by an information under 21
U.S.C. § 851), faces a mandatory minimum of 10 years in
prison and up to a life sentence if at least 50 grams of a
mixture containing methamphetamine is involved. If there
is 500 grams or more involved, the statutory minimum is
upped to 20 years. 21 U.S.C. § 841(b)(1)(A)(viii);
(b)(1)(B)(viii). At trial, the government argued that the
conspiracy included over 500 grams by aggregating the
total amount of methamphetamine that Kincannon purchased
from Dill (340.2 grams) with methamphetamine
found at Dill’s house (186 grams). But a coconspirator is
only liable for transactions that were reasonably foreseeable
acts in furtherance of the entire conspiracy, United
States v. Easter, 553 F.3d 519, 523 (7th Cir. 2009), and since
Dill was not part of the conspiracy, the drugs found at her
place are arguably off limits.

But this possible Apprendi error is of little moment. The
amount of methamphetamine involved in the conspiracy
is not an element of the crime, so it has no effect on
Kincannon’s conviction. United States v. Kelly, 519 F.3d 355,
363 (7th Cir. 2008); United States v. Gomez-Rosario, 418 F.3d
90, 104 (1st Cir. 2005). The drug quantity amount is relevant
for sentencing, but not all errors require remand since
they are subject to harmless error analysis. Adkins, 274 F.3d
at 454. And so long as the judge imposes a sentence below
the statutory maximum, he may do so based on facts found
by a preponderance of the evidence. United States v.
Abdulahi, 523 F.3d 757, 760 (7th Cir. 2008) (reiterating that
Apprendi has no application to cases where the sentence is
below the statutory maximum). On this record, it’s clear,
beyond a reasonable doubt, that a properly instructed jury
would have found that Kincannon and Thorburg’s conspiracy
involved at least 50 grams of methamphetamine. That
mark is met by just adding up the amount of drugs that
Kincannon purchased when chauffeured by Thorburg.
Thorburg testified that he drove Kincannon at least six
times—a fact corroborated by Dill—and Dill added that
Kincannon purchased either a half an ounce or an ounce on
each trip (6 × .5 ounces = 85 grams). Kincannon was
sentenced to 30 years imprisonment, well below the
statutory maximum for conspiracies involving 50 grams or
more of methamphetamine.1

Kincannon makes one more attack on his conviction. He
argues, for the first time on appeal, that the prosecutor
inflamed the passions of the jury, rendering the trial unfair,
by referring in closing argument to The Godfather and
Thorburg’s precipitous decline once hooked on methamphetamine.
Because the argument was forfeited before the
district court, we review it only for plain error, and we
begin by evaluating whether the comments themselves
were improper. United States v. Bowman, 353 F.3d 546, 550
(7th Cir. 2003).

The prosecutor’s reference to The Godfather does not
approach impropriety. It would be one thing if the government
compared Kincannon to Michael Corleone, an
organized crime kingpin responsible for murders and a
whole host of other criminal activity. See Alvarez v.
McGinnis, 4 F.3d 531, 534 (7th Cir. 1993). Such an analogy
would be utterly unmoored from the record, which is
probably why the government made no such connection.
It was not Corleone’s criminality, but Francis Ford
Coppola’s direction that was at the heart of the prosecutor’s
closing remarks. The prosecutor alluded to the pivotal
point in the movie where Corleone attends his godchild’s
christening. Coppola cuts to various scenes of assassinations
orchestrated by Corleone as a priest dubbed him the
child’s godfather. The poetic implication is that the murders,
like the priest’s liturgy, made Michael the godfather
of the Corleone crime family. As the prosecutor said,
“[n]ow that is how you present events that occur simultaneously
in a movie so the viewer can understand it very
easily.” We agree, as did the Academy of Motion Picture
Arts and Sciences, who nominated Coppola for an Oscar
for best director.2 The prosecutor explained to the jury that
he would try to do orally what Coppola did in his
film—that is, tie together the events that occurred during
the two controlled buys into one seamless story. To do so
as eloquently as Coppola is a tall task, but there is certainly
nothing improper about the attempt.

Likewise, the prosecutor’s comments regarding
Thorburg’s life were not inappropriate. The description of
Thorburg’s drug-induced descent was rooted in his
uncontroverted testimony, and the prosecutor highlighted
it to “illustrate the power of this stuff and why we’re on a
serious purpose today in considering the charges against
Mr. Kincannon.” Impressing upon the jury the seriousness
of the charges and commenting on the gravity of the drug
problem in this country is permissible, Bowman, 353 F.3d at
551; United States v. Zanin, 831 F.2d 740, 743 (7th Cir. 1987),
and the prosecutor did nothing more here.

We can also quickly dismiss Kincannon’s last argument.
He maintains that his within-guidelines sentence is unreasonable
since, at 77 years old, 30 years of imprisonment
amounts to a life sentence. During sentencing, Kincannon
made a plea for a below-guidelines sentence based on his
age. The court considered Kincannon’s advanced age but
noted that it had not deterred or slowed his criminal
activity to date. Kincannon was in his fifties when his
criminal record started and days away from his 73rd
birthday when he was last released from prison after being
popped for distributing drugs. Emphasizing the need for
deterrence, the judge explained that Kincannon had “done
time in the State system, Illinois and Missouri, and in the
Federal system,” yet “continued to sell the stuff,” and
sentenced him to the bottom of the guideline range. That
makes for a presumptively reasonable sentence on appeal.
Rita v. United States, 551 U.S. 338 (2007); United States v.
Shannon, 518 F.3d 494, 496 (7th Cir. 2008). The court
adequately explained the sentence it imposed and addressed
Kincannon’s request for lenience. United States v.
Wurzinger, 467 F.3d 649, 654 (7th Cir. 2006) (affirming de
facto life sentence where defendant had an above-average
tendency to crime in his old age). Kincannon presents us
with nothing to disturb the rebuttable presumption of
reasonableness of his within-guidelines sentence.
Accordingly, the judgment of the district court is AFFIRMED.

Chicago Criminal Lawyer - Robert J Callahan