Federal appeals court upholds Operation Law and Order convictions

Jan. 4—The United States Appeals Court for the Seventh Circuit has upheld all the convictions and all but one of the sentences of 10 defendants charged in Operation Law and Order who appealed their convictions and sentences.

In a 90-page opinion issued Dec. 22, the federal appeals court considered wide-ranging challenges made by 10 out of 14 people convicted for a conspiracy to transport illegal drugs from Georgia for distribution in Kokomo. Senior Judge David Hamilton wrote the opinion Dec. 29 for the 7th Circuit majority.

The arrests were part of the 2018 drug sting operation called Operation Law and Order by law enforcement.

Police foiled the drug ring, which included an alleged murder-for-hire plot and the transport of cocaine, heroin and methamphetamine from Georgia to its distribution in Kokomo. The arrests came after a four-month investigation led by the Kokomo Police Department Drug Task Force and several federal agencies, including the FBI and Drug Enforcement Administration.

The 10 defendants who appealed — Pierre Riley, Reggie Balentine, Michael O'Bannon, Michael Jones, Jason Reed, Shaun Myers, Perry Jones, Thomas Jones, Derrick Owens and Antwon Abbott — raised a variety of challenges to both their convictions and sentences.

Challenges ranged from racial bias in jury selection, pretrial rulings, the admission of certain evidence and the sufficiency of evidence.

Specifically, Michael Jones, O'Bannon, Reed and Myers argued that evidence gathered during use of wiretaps should not have been admissible in court because the affidavit filed to receive the permission for use of the wiretaps was not sufficient.

Hamilton, though, disagreed, stating that investigators knew Balentine conducted drug trafficking from his home but could not know for sure using general surveillance whether Balentine stored drugs at his home or elsewhere. A wiretap on mobile phones could provide that information.

"According to the affidavit, investigators considered other techniques, such as using an undercover agent and applying for a search warrant, but these strategies were deemed to be either unsafe or ineffective," Hamilton wrote. "The application further explained that a wiretap was needed to help investigators determine the identities and roles of various accomplices to the conspiracy, the nature and methods of the drug trafficking business, and where the drugs were stored. The issuing judge did not abuse her discretion in finding that the February affidavit was sufficient to justify use of the wiretap."

O'Bannon, Michael Jones, Reed and Myers each also argued the district court erred when it ruled against a Baston challenge to the striking of the two Black jurors — juror 52 and juror 57 — by the state. Batson v. Kentucky was a decision of the United States Supreme Court ruling that a prosecutor's dismissal of jurors without stating a valid cause for doing so may not be used to exclude jurors based solely on their race.

The appellate court, though, ruled the district court did not err when it accepted the reasons for why the state struck jurors 52 and 57.

According to the ruling, juror 52 told the court he, as a musical instrument salesperson, was concerned that his business would be negatively affected if he were to be chosen as one of the 12 jurors.

Secondly, the government argued that juror 52 had made an "agenda-driven comment" when he, after defense counsel asked him whether he could commit to the idea that "until the end of the trial, (defendants) are constantly considered not guilty until the government proves otherwise," said in response "you're saying they're considered to be not guilty. I would say they're not guilty, not considered anything."

Juror 57, according to the ruling, was struck by the government after she told the court her oldest son was incarcerated and that she could experience hardship if chosen because she needed flexibility to care for her youngest son.

The appellate court ruled the district court was not in error in denying the Baston challenge.

"Some prospective jurors overestimate the burdens of serving, but others underestimate the burden," Hamilton wrote. "They also may not appreciate how disruptive accommodations might be for everyone else involved in the trial. The district court did not err in finding that explanation from the government credible as well."

SENTENCINGS

Six of the defendants argued that various sentencing guideline enhancements were erroneously applied to them. Two of the defendants argued the district court erred in its drug quantity calculations. Three argued that the district court erred by relying upon "inaccurate or unreliable information" in calculating sentence. One challenged the reasonableness of his sentence and another asked for the 7th District to depart from controlling Supreme Court precedent.

The only sentencing challenge the majority of the 7th Circuit ruled had merit was Thomas Jones' challenge. Jones argued it was incorrect to include the two-level firearm enhancement to his sentence.

In January 2018, a person seeking meth from Michael Jones, Thomas' uncle, arranged a transaction. The buyer brought his wife, who carried a gun for "protection" to the meeting with Michael and Thomas Jones.

On this fact, the district court found the firearm enhancement applied to Thomas Jones. To apply such an enhancement for a defendant who did not personally possess a firearm, "the court must find by a preponderance of the evidence (1) that someone in the conspiracy actually possessed a firearm in furtherance of the conspiracy, and (2) that the firearm possession was reasonably foreseeable to the defendant."

But the appellate court ruled the firearm enhancement was "clearly erroneous."

"There must be actual possession of a firearm by a co-conspirator for the enhancement to apply on a theory of possession related to jointly undertaken criminal activity," Hamilton wrote. "The record here includes no evidence that Michael Jones or even the buyer actually possessed a firearm in connection with the January 2018 transaction. The evidence does indicate that the buyer's wife wore a concealed firearm in the initial meeting, but Thomas Jones is not accountable for that firearm."

Thus, Thomas Jones' sentence has been vacated, and his case was remanded for resentencing.

Judge Thomas Kirsch dissented to that ruling, arguing the majority "does not address whether Michael Jones's gun possession was reasonably foreseeable to Thomas Jones. Clearly, it was."

Tyler Juranovich can be reached at 765-454-8577, by email at tyler.juranovich@kokomotribune.com or on Twitter at @tylerjuranovich.