99-4019, 99-4074, 99-4279, 99-4280, 99-4281, 99-4283 & 99-4296 U.S. v. Thompson, et al.

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“We do not think the fact that Jones lied to the police about his whereabouts on the morning of June 30th and his participation in the cover-up, taken together, are sufficient to support the inference that it was reasonably foreseeable to him that Willis would be murdered with malice aforethought. These facts tell us nothing about whether Jones had reason to know that someone in the conspiracy was likely to murder an informant.

“‘Reasonable foreseeability is the divining rod of the relevant conduct sentencing provision,’ United States v. DePriest, 6 F.3d 1201, 1212 (7th Cir. 1993) (internal citation omitted), therefore, ‘the burden of proving foreseeability under the circumstances of each individual case [rests] squarely on the government.’ United States v. Sandoval-Curiel, 50 F.3d 1389, 1393 (7th Cir. 1995). Here, the government has not met its burden. We have been willing to assume that carrying of weapons is foreseeable to most drug conspiracy members, in light of the violent nature of the drug business. See, e.g., id. But even with this presumption of violence, we still require the government to prove that the conspiracy’s actions were foreseeable to each defendant to whom it seeks to impute relevant conduct.

“For those defendants who did not participate in Willis’ murder or its cover-up (Stephanie Johnson and Anthony Thompson), the government urges us to follow United States v. Cherry, 217 F.3d 811 (10th Cir. 2000). Cherry holds that if a murder is reasonably foreseeable to a conspirator and within the scope and in furtherance of the conspiracy, the conspirator waives his right to confront that witness just as if he killed the witness himself. Although we believe that Cherry is well-reasoned, we find that Willis’ murder was not reasonably foreseeable to these defendants. But because admission of the statements was harmless, the error does not require reversal.”

Affirmed in part, vacated in part, and remanded.

Appeals from the United States District Court for the Southern District of Indiana, McKinney, J., Williams, J.