United States v. Hoover, Larry ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2600, 98-2820, 98-2915, 98-3433,
98-3840, 99-1377, 99-2142 & 00-2520
United States of America,
Plaintiff-Appellee,
v.
Larry Hoover, Tirenzy Wilson, Gregory Shell,
Jerry Strawhorn, Adrian Bradd, Darrell Branch,
Andrew Howard, and William Edwards,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 508--Harry D. Leinenweber, Judge.
Argued March 2, 2001--Decided April 12, 2001
Before Cudahy, Easterbrook, and Rovner, Circuit
Judges.
Easterbrook, Circuit Judge. The Gangster Disciples,
a large and vicious street gang, sells great
quantities of cocaine, heroin, and other drugs in
Chicago. A series of cases has seen the
conviction of many members, some of them high in
its hierarchy. See United States v. Ray, 238 F.3d
828 (7th Cir. 2001); United States v. Wilson, 237
F.3d 827 (7th Cir. 2001); United States v.
Johnson, 223 F.3d 665 (7th Cir. 2000); United
States v. Smith, 223 F.3d 554 (7th Cir. 2000);
United States v. Jackson, 207 F.3d 910 (7th Cir.
2000), remanded, 121 S. Ct. 376 (2000), decision
on remand, 236 F.3d 886 (7th Cir. 2001); United
States v. Irwin, 149 F.3d 565 (7th Cir. 1998).
Today we deal with eight more members of the
organization, including Larry Hoover, its
"chairman of the board"; Gregory Shell, Hoover’s
second in command; Andrew Howard, the third of
the gang’s "directors"; and two "governors"
(Tirenzy Wilson and Jerry Strawhorn). The other
three appellants were lower in the hierarchy but
still deeply involved in its operations. The five
directors and governors, the gang’s top echelon,
have been convicted of operating a continuing
criminal enterprise, 21 U.S.C. sec.848, and
sentenced to life imprisonment. Of the remaining
three appellants, William Edwards was sentenced
to life imprisonment and Adrian Bradd to 292
months’ imprisonment for conspiring to distribute
drugs, while Darrell Branch was sentenced to 324
months’ imprisonment for conspiracy plus money
laundering.
Many of the arguments these eight defendants
present on appeal have been dealt with by the
panels that affirmed the convictions of other
gang members. For example, Hoover and his
henchmen direct their strongest fire against the
prosecution’s best evidence--tapes of intercepted
conversations, evidence so crushing that the rest
of the prosecution’s case scarcely mattered.
Defendants offer three principal arguments: that
a district judge in the Northern District of
Illinois lacked authority under 18 U.S.C.
sec.2518(3) to authorize interceptions of
conversations that occurred in the Southern
District of Illinois, that the statutory
authority for roving surveillance is
unconstitutional, and that the recorded
conversations must be suppressed because the
original tapes were not sealed promptly after the
authorization expired, as 18 U.S.C.
sec.2518(8)(a) requires. All of these arguments
were made in Jackson and rejected there with
respect to these very tapes. 207 F.3d at 914-18.
Although the Supreme Court remanded in Jackson so
that we could consider the effect of Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
the petition for certiorari was denied to the
extent that it sought review of the wiretap
issues. Relying on Jackson, we rejected in Wilson
arguments materially identical to those now
presented. 237 F.3d at 831. Our appellants have
offered some additional arguments, such as a
contention that the affidavits do not show the
necessity of using interceptions, as opposed to
other investigative techniques, but these are
weak. None of the new arguments is persuasive,
and the new versions of the old arguments run
headlong into the law of the circuit. Now that
the court has held that these tapes were properly
admitted in two other trials, and rehearing en
banc and certiorari have been denied on that
subject, it would be inappropriate for a third
panel to offer an independent view as if the
matter were presented for the first time.
Therefore, just as in Wilson, we reject on the
basis of stare decisis appellants’ contention
that the use of these tapes requires reversal.
Similarly we conclude that the CCE convictions
are valid whether or not Hoover and the other
leaders personally committed the predicate
offenses on which the CCE convictions depend. So
we held in Wilson, 237 F.3d at 833-34, and Smith,
223 F.3d at 573. Cf. United States v. Pino-Perez,
870 F.2d 1230 (7th Cir. 1989) (en banc) (aiding
and abetting a kingpin can support a CCE
conviction). Predicate offenses include
violations of 21 U.S.C. sec.841 (the principal
substantive drug crimes). One way of violating
sec.841 is to join a conspiracy whose members
defy that statute. This is the holding of
Pinkerton v. United States, 328 U.S. 640 (1946):
every member of a conspiracy is substantively
culpable for other conspirators’ acts within the
scope of the conspiracy. This means that Hoover
and other top managers have violated sec.841
whether or not they sold drugs (or committed the
conspiracy’s other crimes) personally. Requiring
personal commission of the predicate offenses
would essentially knock out the sentencing
enhancements that sec.848 provides for kingpins,
who delegate the dirty work. They direct others
in selling drugs or rubbing out rivals, and if
this insulated them from culpability then sec.848
might as well be repealed. Using as predicate
offenses crimes committed by a different branch
of the organization also is appropriate. Wilson
and Strawhorn want us to proceed as if the
Gangster Disciples were multiple organizations,
one for each territory controlled by a governor,
but that is not what the jury found: they were
convicted of a single conspiracy and under
Pinkerton are answerable for the crimes committed
by the whole of that organization.
Because a lawful punishment for every CCE
conviction is life in prison, we held in Smith
that Apprendi does not affect sentencing for this
offense. The three defendants who were not
convicted under sec.848 have a sound contention
that the district court committed error by not
telling the jury to determine the kind and
quantity of drugs that they distributed. But
these defendants did not request such an
instruction in the district court, so appellate
review is limited to a search for plain error.
Only a miscarriage of justice could justify a
remand. See Johnson v. United States, 520 U.S.
461 (1997); United States v. Olano, 507 U.S. 725(1993); United States v. Nance, 236 F.3d 820 (7th
Cir. 2000). What must be proved beyond a
reasonable doubt after Apprendi is the minimum
quantity needed to authorize a particular
punishment. Given 21 U.S.C.
sec.841(b)(1)(A)(iii), a conclusion that Edwards
conspired to distribute 50 grams of crack cocaine
would authorize life imprisonment; even 5 grams
would do for Bradd and Branch, who were sentenced
to fewer than 40 years. See 21 U.S.C.
sec.841(b)(1)(B)(iii). Evidence in the record
establishes beyond any doubt that the Gangster
Disciples distributed (much) more than 50 grams
of crack daily, so given Pinkerton (and the
jury’s verdict convicting each appellant of the
over-arching conspiracy) there is no likelihood
that any reasonable jury would have failed to
find that each is culpable for more than 50 grams
of crack. Plain error has not been established.
Defendant Wilson’s variations (adopted by other
defendants) on the Apprendi argument fare no
better. Wilson contends that any fact raising a
mandatory minimum penalty must be established
beyond a reasonable doubt, even if the statutory
maximum is life. Smith addressed and rejected
that precise argument. As for the contention that
sec.841 and sec.848 are unconstitutional (and
therefore cannot support any conviction at all)
because they do not designate as "elements" the
quantities of drugs that matter to punishment:
that position is considered, and rejected, in
United States v. Brough, No. 00-2695 (7th Cir.
Mar. 22, 2000).
Thus we arrive at issues unique to these
defendants. The most serious is a Bruton problem
(see Bruton v. United States, 391 U.S. 123(1968)) created when the district judge permitted
the prosecutor to use against Andrew Howard a
statement that named Hoover and Shell as the
gang’s top bosses. Bruton holds that it violates
the confrontation clause of the sixth amendment
to admit against one defendant a confession
accusing a co-defendant, when the declarant will
not testify and thus cannot be cross-examined.
Judges’ instructions to consider the statement
solely against its maker will be impossible to
follow, the Court concluded. Bruton left open the
possibility of redacting a confession to avoid
the problem, and Richardson v. Marsh, 481 U.S.
200 (1987), held that some forms of redaction are
permissible. Seizing this opening, the
prosecutors amended Howard’s confession so that
"incarcerated leader" replaced every reference to
Hoover, and "unincarcerated leader" every
reference to Shell. (Hoover ran the Gangster
Disciples from state prison, apparently bribing
guards with cash and drugs to be allowed the
freedom to do this; Shell, who was released from
state prison in 1992, was Hoover’s ambassador on
the outside from then on.) Only a person unfit to
be a juror could have failed to appreciate that
the "incarcerated leader" and "unincarcerated
leader" were Hoover and Shell; we doubt that the
majority in Richardson would have countenanced so
transparent a device. No matter, because in Gray
v. Maryland, 523 U.S. 185 (1998), the Court
placed close limits on the use of pseudonyms and
indirect references. The Court wrote: "Redactions
that simply replace a name with an obvious blank
space or a word such as ’deleted’ or a symbol or
other similarly obvious indications of alteration
. . . leave statements that, considered as a
class, so closely resemble Bruton’s unredacted
statements that . . . the law must require the
same result." Id. at 192.
The district judge cannot be faulted for
failing to anticipate Gray, which was issued
after the trial; but we are surprised that even
after Gray the United States contends that no
error occurred. "Incarcerated leader" and
"unincarcerated leader" are obvious stand-ins for
"Hoover" and "Shell." A name is itself just one
among many means of identification. The amended
confession just gave Hoover and Shell aliases
based on their occupations. It no more concealed
their identities than the substitution of "Mark
Twain" for "Samuel Clemens" conceals the author.
The prosecutor relies on United States v.
Stockheimer, 157 F.3d 1082, 1086 (7th Cir. 1998),
for the proposition that Bruton and Gray permit
the use of placeholders when their incriminating
nature is not apparent to persons unaware of the
other evidence offered at trial. True enough, the
panel in Stockheimer remarked that the altered
confession, which referred to an "inner circle"
of persons, would not have incriminated the non-
confessing defendants without considerable other
evidence. But the proposition that replacing a
name with a pseudonym is proper unless the
identity of the alias can be deduced within the
four corners of the confession is incompatible
with Gray, and we do not read the opinion in
Stockheimer to adopt what was, after all, the
main argument of the dissenting opinion in Gray.
Very little evidence is incriminating when viewed
in isolation; even most confessions depend for
their punch on other evidence. To adopt a four-
corners rule would be to undo Bruton in practical
effect. An alteration that uses an open-ended
reference such as "inner circle" at least avoids
a one-to-one correspondence between the
confession and easily identified figures sitting
at the defense table. "Incarcerated leader" and
"unincarcerated leader" are just the sort of
symbols that the majority in Gray had in mind. If
the prosecutors wanted to use Howard’s confession
yet avoid a severance, they had to make
substantially greater alterations to avoid the
obvious pointers.
Nonetheless, the Bruton error was harmless
beyond a reasonable doubt. The tapes scuttled
Hoover’s defense. Shell received less mention in
the tapes, but Howard’s words could not have
mattered to the jury’s consideration of the case
against Shell given seven weeks of other damning
evidence. Indeed, the defense pretty much sewed
up the prosecutor’s case. Hoover and Shell
admitted that they were the leaders of what
everyone called the "GD" but contended that since
1987 "GD" has stood for "growth and development"
rather than "Gangster Disciples." Shell portrayed
himself as the CEO of an organization of
community activists committed to cleanup,
education, political awareness, and suppression
of gang and drug activities. Other evidence
introduced at trial made mincemeat of that
defense (the only gang and drug activities being
suppressed were those of the GD’s rivals),
leaving Shell’s admission that he was No. 2 in
the GD equivalent to a confession. His conviction
cannot plausibly be traced to the thinly
disguised accusations in Howard’s statement.
Two arguments about co-conspirator hearsay come
next. All defendants contend that the district
court should not have allowed any co-conspirator
evidence to be admitted without first holding an
evidentiary hearing to supply a basis for a
conclusion that a conspiracy existed and the
statements were in furtherance of that
conspiracy. See Fed. R. Evid. 104, 801(d)(2)(E).
A hearing is one way to go about the task, see
United States v. James, 590 F.2d 575 (5th Cir.
1979) (en banc), but not the only or even the
best way. A judge may act on the basis of a
pretrial evidentiary proffer or evidence
introduced in the early stages of trial. See
United States v. Martinez de Ortiz, 907 F.2d 629(7th Cir. 1990) (en banc); United States v.
Santiago, 582 F.2d 1128 (7th Cir. 1978). The
district judge’s decision to admit co-conspirator
hearsay in this case was supported by a
preponderance of the evidence demonstrating that
a conspiracy existed and that the statements had
been made during and in furtherance of its
objectives. That is so even for the statements to
which Strawhorn particularly objects. Tyrone
Reames testified that in August 1988 Strawhorn
and another gang member threatened to "take care"
of Reames unless he changed his account of a
murder in which two gang members had been
implicated. Strawhorn observes that Reames was
not a member of the Gangster Disciples, and we
shall assume that this is so. But the declarant
in the statement being admitted was Strawhorn,
not Reames (who was available for cross-
examination). Much evidence showed that the
Gangster Disciples protected their organization
by threatening to "take care" of potential
witnesses (and by using violence against them
when threats were insufficient). The district
judge did not abuse his discretion in concluding
that Strawhorn threatened Reames in furtherance
of the conspiracy’s objective of protecting
itself (and its members) from criminal
prosecution. It could not be excluded under Fed.
R. Evid. 404(b) as other-crime evidence, because
it was part of the very crime (conspiracy) of
which Strawhorn had been indicted. The statement
therefore was admissible.
Shell and Strawhorn were not the only
defendants whose words came to haunt them at
trial. The defense rested without presenting any
testimony by Bradd, and the prosecution began its
rebuttal case. Bradd then changed his mind and
asked for an opportunity to testify. The district
judge had the discretion to say that he had
waited too long, but the judge elected to grant
Bradd’s request. None of the other defendants
objected. Soon they wished that they had, because
Bradd’s testimony inculpated not only himself (he
admitted being a drug dealer but claimed that he
had quit the GD and usually operated
independently) but also Hoover and other
defendants whom Bradd depicted as drug lords.
Bradd supported the prosecutor’s claim that
Hoover initiated a program under which members of
the Gangster Disciples would "donate" their
profits from drug sales one day each week to
supervisory levels of the gang. (This program,
known variously as "nation work" and "one-day-a-
week", had been a bone of contention at trial.
Other defendants contended that references on the
tapes dealt only with working for community
betterment one day a week. Bradd supported the
prosecution’s view.) Other defendants then moved
for a mistrial or a severance. The district judge
denied both requests and did not abuse his
discretion in doing so. If Bradd had testified
during the defense’s case there would have been
no occasion for either a mistrial or a severance.
See Zafiro v. United States, 506 U.S. 534, 538-39
(1993). Finger-pointing among the defendants is
not only acceptable but also a benefit of a joint
trial, for it helps the jury to assess the role
of each defendant. Defendants believe that things
are otherwise if the evidence comes after the
close of the defense case, but we cannot see why-
-nor do we understand what difference it makes
whether the district judge recognized that he had
discretion to block Bradd’s testimony or thought
instead (though wrongly) that a defendant’s
entitlement to testify on his own behalf
supersedes the rules for the orderly presentation
of evidence. The harm to the other defendants
would have been much the same had Bradd testified
before the defense rested. They contend that if
Bradd had testified sooner they could have
countered his evidence more effectively, but this
is not so; the district judge gave them adequate
opportunity to respond to Bradd’s testimony as
things transpired.
One final issue arising out of the trial
requires comment. (Defendants make many
additional claims of trial error, but none
requires discussion.) Wilson testified in his own
defense that he joined the GDs in 1987 when it
was solely a civic improvement organization and
that neither he nor anyone he associated with was
involved in drug trafficking. In rebuttal, the
government called Naseen Soldana, Wilson’s former
wife, who testified that in late 1992 or early
1993 Wilson asked her for an introduction to
Reynard McDowell, from whom Wilson sought to buy
15 kilograms of cocaine. Soldana made the
introduction, McDowell quoted a price of
$270,000, Wilson came up with that sum, and
Soldana acted as his agent to finish the deal
(paying McDowell and returning the drugs to
Wilson). Soldana testified that Wilson and
McDowell later had at least two other
transactions of 26 kilograms apiece. Following
her separation from Wilson, Soldana became
romantically involved with McDowell, who later
was prosecuted on drug charges. She testified
under a grant of immunity as part of a plan to
reduce McDowell’s sentence. On learning that
Soldana would take the stand in the prosecutor’s
rebuttal case, defendants asked the judge to
issue a writ of habeas corpus to produce McDowell
in Chicago for an interview, so that they could
determine whether he might undermine Soldana’s
testimony. The court declined to do so unless
defendants first ascertained from McDowell’s
attorney whether McDowell would consent to be
interviewed (and to testify), for if McDowell
would balk and assert his privilege against self-
incrimination, the exercise would be pointless.
On learning from McDowell’s lawyer that McDowell
would not cooperate with the defendants, the
district judge declined to issue the writ.
Wilson contends that this episode violated his
right under the sixth amendment to "have
compulsory process for obtaining witnesses in his
favor", but his problem is that McDowell did not
seem likely to be a witness "in his favor", or
indeed a witness of any kind. Soldana’s testimony
depicted McDowell as the supplier of 67 kilograms
of cocaine. He has not been convicted of those
sales, and the defense wanted to paint him not
only as a drug dealer but also as a person who
had suborned perjury; risks of prosecution for
these offenses entitled McDowell to invoke his
privilege against compulsory self-incrimination.
If the district judge had gone off half-cocked,
predicting that McDowell would invoke the
privilege without troubling to check, then we
would be receptive to an argument that he abused
his discretion (which is the right standard of
review). See United States v. Williamson, 202
F.3d 974, 978-79 (7th Cir. 2000). But the judge
deferred decision until inquiry could be made,
and only after learning that McDowell would clam
up did the judge deny the defense request. We
agree with the judge’s assessment. It would have
been wasteful--and could have caused a
substantial and unproductive delay of a week or
more--to fetch McDowell by Con Air from Florida
only to have him repeat in court what he had told
his lawyer. Even now the defendants have no
indication that McDowell’s lawyer misunderstood
or misrepresented his client’s intentions.
Sentencing is the final subject of discussion.
The United States has confessed error with
respect to Branch’s sentence, and after an
independent review we agree that an error has
been made. The district judge assessed one
criminal history point for Branch’s 1980
conviction for resisting arrest. That put Branch
in criminal history category IV (he had six
other, undisputed, criminal-history points) and
led to a sentencing range of 324 to 405 months
under the Sentencing Guidelines. The judge
imposed a sentence of 324 months, the bottom of
this range, which suggests that Branch might have
received an even lower sentence had his
background been assessed as category III, for
which the sentencing range would have been 292 to
365 months. Like the United States, we think that
category III is the correct one, because U.S.S.G.
sec.4A1.2(c) disregards Branch’s conviction for
resisting arrest. A conviction for resisting
arrest leads to a criminal history point only if
the defendant received at least 30 days’
imprisonment or one year’s probation. Branch’s
sentence to two days (time served before his
guilty plea) was well short of that. He therefore
must be resentenced within the range of 292 to
365 months. Branch’s original sentence of 324
months is below the middle of the reduced
guideline range, so the district judge may elect
to impose the same sentence on remand, but if he
does this the judge should explain why the change
in criminal history did not affect the sentence.
None of the other arguments concerning
sentencing calls for a reduction. The life
sentences for the CCE defendants are foreordained.
And although we may assume, as the other three
defendants insist, that the one-day-a-week
program did not get off the ground and that the
nation-work program (which did) entailed smaller
quantities, the sums the leaders hoped to rake in
were so large that they conveyed to other
defendants, such as Bradd, the scale of the
organization, which enabled them to anticipate
(and so be held accountable for) sales other than
those in which they personally participated.
The judgments are affirmed with respect to all
defendants other than Branch. His conviction is
affirmed but his sentence is vacated, and the
case is remanded with instructions to impose a
new sentence from the range of 292 to 365 months’
imprisonment.
Cudahy, Circuit Judge, concurring. Although it
probably did not affect the outcome, the
admission of Reames’ testimony about Strawhorn’s
threats raises serious questions. Tyrone Reames
was permitted to testify that in August 1988, he
witnessed a murder committed by two Gangster
Disciples from his neighborhood. Two years later,
as the Gangster Disciples’ state court murder
trial date approached, Reames said he was
approached by Strawhorn and another Disciple, who
grabbed him and took him to see "Coal Black," who
was identified as Robert Dordies, another
Disciple. Strawhorn and Dordies, according to
Reames, threatened that if Reames did not change
his account of the murder to exculpate the
Disciples charged with it, Strawhorn would "take
care of" him. Reames himself was not a member of
the Gangster Disciples or any other street gang,
and the alleged murder had nothing to do with the
drug conspiracy charged in this case.
The government offered the Reames testimony to
show, among other things, an example of
enforcement of the law of silence and secrecy in
the gang. The district court instead found that
"in order to make the conspiracy go, they offered
protection to certain people and one of the ways
they did that was to intimidate people from
testifying. So, it seems to me one of the main
procedures that gangs have always--not gangs so
much as organized crime activities--have always
been conducted."
There may be some marginal relevance to Reames’
testimony as showing gang practices in enforcing
silence about gang crimes. As the district judge
said, this was the way of organized crime. But
the facts surrounding Reames’ testimony had
nothing to do with the drug conspiracy with which
the Disciples were charged.
It was uncontested at trial that Strawhorn was
a longstanding member of the Disciples with the
rank of governor and that he knowingly assented
to gang rules. The probative value of showing his
threats to silence witnesses in matters having
nothing to do with the distribution of drugs is
slight while the prejudice attaching to hushing
up a witness could hardly be greater. Indeed, we
have noted that evidence of witness intimidation
constitutes "a striking example of evidence that
appeals to the jury’s sympathies, arouses its
sense of horror, provokes its instinct to punish
or otherwise may cause a jury to base its
decision on something other than the established
propositions in the case." United States v.
Thomas, 86 F.3d 647, 654 (7th Cir. 1996). The
introduction of this testimony, therefore,
exposed heinous conduct typical of organized
crime but which had no plausible connection with
the drug conspiracy. Although the outcome may not
be affected, Reames’ testimony should not have
been admitted.
ROVNER, Circuit Judge, concurring. I join the
court’s opinion. I write separately only to
express my concern about the findings of a
previous panel of this court regarding the
government’s failure to have the Vienna
surveillance tapes sealed immediately upon
expiration of the surveillance warrant, as 18
U.S.C. sec. 2518(8)(a) required. See United
States v. Jackson, 207 F.3d 910, 915-18 (7th
Cir.), remanded on other grounds, 121 S. Ct. 376(2000). Jackson concluded that none of the
documented reasons that the government gave to
the district court for waiting 32 days to have
the tapes sealed constituted the "satisfactory
explanation" for the delay that section
2518(8)(a) demands. 207 F.3d at 915-18. Rather
than ordering the tapes suppressed, however, the
court embraced an explanation founded on facts
that were not asserted in the affidavit submitted
by the prosecutor in charge of the surveillance.
Id. at 918. If indeed the "real reason" for the
delay was the government’s expectation, based on
the assurance of technicians, that a new and
smaller microphone would become available within
a day or two, an assurance that purportedly was
repeated until finally "it became clear that ’a
few days’ were going to stretch on indefinitely,"
id., then I cannot fathom why that reason was not
spelled out in the affidavit, which was the only
evidence before the district court, and remains
the only evidence before this court, as to the
explanation for the delay in sealing the tapes.
See id. at 916. Even more perplexing to me is
this court’s decision to accept as a satisfactory
explanation for the delay an asserted reason
which, although it may be true and accurate, has
no support in the record.
We routinely disregard arguments premised upon
factual assertions that are not borne out by the
record. E.g., United States v. Phillips, 914 F.2d
835, 840 (7th Cir. 1990) ("An appellant may not
attempt to build a new record on appeal to
support his position with evidence that was never
admitted in the court below."); Box v. A&P Tea
Co., 772 F.2d 1372, 1379 n.5 (7th Cir. 1985)
("arguments in briefs are not evidence"), cert.
denied, 478 U.S. 1010, 106 S.Ct. 3311 (1986); see
also Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-58 n.16, 90 S. Ct. 1598, 1608 n.16 (1970);
Russell v. Southard, 53 U.S. (12 How.) 139, 159
(1851). We do not allow parties to stray beyond
the bounds of the record for reasons so obvious
and familiar that they scarcely require mention:
if the evidence upon which a party bases its
argument is not in the record, then the opposing
party has not had the opportunity to respond
appropriately, the district court has never had
the opportunity to assess that evidence, and
last, but by no means least, when push comes to
shove, the "evidence" may never materialize--
litigants often make representations that turn
out to be inaccurate. I have no reason to think
that the government has misrepresented the facts,
but if indeed the "real reason" for the delay in
sealing the tapes was the prosecutor’s
expectation that a more discreet microphone would
shortly become available, then some evidence of
that expectation should have been produced long
before the record closed and the Jackson case was
on appeal. Instead, the unverified and untested
factual assertions of a brief have become the
foundation for the law of this circuit, binding
panel after panel hearing the Gangster Disciple
appeals and defendant after defendant--none of
whom has ever seen any evidence bearing out the
government’s asserted rationale for the delay in
sealing the tapes./1
Our credibility as a judiciary depends in great
measure upon the consistency and fairness with
which we honor our own rules. At oral argument,
Mr. Edwards’ counsel observed that if he were to
make assertions outside of the record, we would
not tolerate it for a moment. He is right. The
government should be treated no differently.
Obviously, suppression of the tapes--described in
Jackson as "[s]ome of the government’s strongest
evidence," 207 F.3d at 913, and here as its "best
evidence . . . , evidence so crushing that the
rest of the prosecution’s case scarcely
mattered," ante at 2, might have dire
ramifications for the government’s case. Yet, the
stakes were no doubt apparent to the government
when the affidavit was prepared. I do not
understand why the government should be relieved
of the obligation to make a record in support of
its arguments--particularly its "real reason" for
a crucial delay in complying with a statutory
requirement--when we would not relieve any other
litigant of that obligation. Simply because the
ramifications are odious does not justify a
departure from the basic tenets of fairness,
common sense, and the rule of law.
It is with the greatest reluctance that I
criticize the holding of another panel of my
colleagues. But the same issue that confronted
the panel in Jackson is squarely presented here,
and the briefing in this case makes it abundantly
clear that the key facts on which Jackson relied
have no support in the record--Jackson itself
leaves little doubt in that regard. After much
reflection, and with a heavy heart, I have
concluded that I cannot remain silent with
respect to this court’s unusual decision to
accept the government’s unverified allegations as
"a (barely) satisfactory explanation" for the
government’s delay in complying with its
statutory obligations. See 207 F.3d at 918.
I accept, as I must, the panel’s holding in
Jackson; it is the law of this circuit vis a vis
the admissibility of the Vienna tapes. See United
States v. Wilson, 237 F.3d 827, 831 (7th Cir.
2001); ante at 2-3. I do so, however, with great
reservation as to the prudence of this court’s
decision to accept as fact crucial assertions
made only in a brief, and with the hope that in
the future, the government will make an
appropriate record as to its "real reason" for
any failure to comply with the requirements of
Title III.
/1 Jackson notes that the district judge himself
relied on the government’s explanation as a
reason for admitting the belatedly sealed tapes
into evidence. 207 F.3d at 918; see United States
v. Parks, No. 95 CR 510, 1997 WL 136761, at *20
(N.D. Ill. March 24, 1997). To the extent that is
true, it hardly justifies this court’s resort to
asserted facts that are without support in the
record; our review of the sufficiency of the
government’s explanation must focus on the
evidence submitted to the district court. See
United States v. Ojeda Rios, 495 U.S. 257, 267,
110 S. Ct. 1845, 1851 (1990) (majority); id. at
267-68, 110 S. Ct. at 1852 (O’Connor, J.,
concurring).