Shell, Gregory v. United States ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3890
GREGORY SHELL,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 3182—Harry D. Leinenweber, Judge.
____________
ARGUED FEBRUARY 21, 2006—DECIDED MAY 23, 2006
____________
Before MANION, WOOD, and EVANS, Circuit Judges.
MANION, Circuit Judge. Gregory Shell is serving a term of
life imprisonment after being convicted for his leadership
role in the Gangster Disciples. The government obtained
overwhelming evidence against Shell by monitoring his
conversations with Larry Hoover, the chieftain of the
Gangster Disciples, who was serving time in prison for
murder. Shell filed a motion for relief under 28 U.S.C.
§ 2255, which the district court denied. We granted a
certificate of appealability on the issue of whether Shell’s
counsel was constitutionally ineffective for not raising
certain challenges at his trial. We now affirm.
2 No. 04-3890
I.
Gregory Shell was second-in-command of the Gangster
Disciples (“GDs” or the “gang”) in Chicago, a gang that had
a $100,000,000 per year drug business.1 The founder of the
gang, Larry Hoover, had been convicted of murder in 1973,
but he retained his leadership position in the GDs from his
prison cell in Vienna, Illinois. To maintain order in his
absence, Hoover designated Shell as his proxy in 1992,
giving him day-to-day control over the gang’s operations
in Chicago. Shell, a trusted board member who had not
been incarcerated, brought a flair for organization to the
gang’s dealings, efficiently coordinating and systematiz-
ing the GD drug network. During Hoover’s time in jail, he
would often talk to different GD lieutenants over the
telephone, but, if the conversation turned to gang business,
he would tell his interlocutor to come to Vienna personally.
Over a period of ninety months in the late 1980’s through
the mid 1990’s, Shell made the trip from Chicago to Vienna,
which is in the most southern part of Illinois, over one
hundred times.
In 1993, a DEA task force began investigating Hoover’s
continuing role with the GDs. The task force applied to
Chief Judge Moran of the Northern District of Illinois for a
warrant for electronic surveillance, as required by 18 U.S.C.
§ 2518 (“Title III”). Title III requires applicants for such a
warrant to submit a statement, under oath, containing a
variety of disclosures, including “(ii) . . . a particular
description of the nature and location of the facilities from
1
We refer readers to previous decisions, such as United States v.
Hoover, 246 F.3d 1054 (7th Cir. 2002), and United States v. Smith,
223 F.3d 554, 568-69 (7th Cir. 2000), for further discussion of the
GDs’ nefarious dealings.
No. 04-3890 3
which or the place where the communication is to be
intercepted, (iii) a particular description of the type of
communications sought to be intercepted, (iv) the identity
of the person, if known, committing the offense and whose
communications are to be intercepted.” 18 U.S.C.
§ 2518(1)(b). In this case, the application sought a warrant
“authorizing the [DEA] and other law enforcement person-
nel assisting them to intercept oral communications occur-
ring at the Visitor Area [of the Vienna Correctional Facility],
between Larry Hoover and Gregory Shell, [and assorted
other GD members].” The application was devoid of any
information describing the means that the DEA intended to
employ. Chief Judge Moran authorized the surveillance.
All visitors to the prison had to wear a badge identify-
ing themselves as such. Working with prison officials, the
DEA conducted the authorized surveillance of the conversa-
tions in the Visitor Area by placing an electronic eavesdrop-
ping device (the “bug”) inside the badge given to Hoover’s
visitors. This enabled the DEA to listen to Hoover’s commu-
nications with Shell and his other GD visitors, no matter
where in the Visitor Area they occurred. The bug turned up
a wealth of information, leading to a forty-two- count
indictment against Hoover, Shell, and various other GD
leaders for their involvement in the gang’s drug activities.
Before trial, Shell filed a motion to suppress, raising a
variety of challenges to the Title III application and
warrant.2 The district court denied the motion. Shell then
2
Shell now claims his counsel was ineffective because he did not
raise several issues in his motion to suppress. Specifically, Shell’s
counsel did not contend that the interception of his oral commu-
nications with Hoover amounted to an infringement on his
(continued...)
4 No. 04-3890
went to trial and was convicted, and we affirmed. See
Hoover, 246 F.3d at 1063.
In 2003, Shell filed a timely motion under 28 U.S.C. § 2255asserting that the bug in the badge amounted to a Fourth
Amendment violation and that his counsel was constitution-
ally ineffective for not raising this argument. The district
court denied this motion. We subsequently granted a
certificate of appealability on three issues: “Whether trial
and appellate counsel were ineffective for failing to argue
that (1) the intercepted conversations were obtained in
violation of the Fourth Amendment; (2) the trial court erred
when it admitted intercepted conversations because the
court order did not specify where the communications
would be intercepted; and (3) the court order was void
because the government deliberately omitted material
information regarding the method of interception when it
asked for authorization, and the judge would not have
authorized the surveillance if he had known the method.”
II.
We review the district court’s decision to deny Shell’s
§ 2255 motion de novo. See Kitchen v. United States, 227 F.3d
1014, 1017 (7th Cir. 2000); see also Fountain v. United States,
211 F.3d 429, 433 (7th Cir. 2000). “A § 2255 motion must be
granted when a defendant’s ‘sentence was imposed in
violation of the Constitution or laws of the United States.’ ”
2
(...continued)
Fourth Amendment rights. Nor did he argue that the application
to intercept oral communications was insufficient because it
did not explain the alleged constitutional difficulties inherent
in the surveillance.
No. 04-3890 5
Fountain, 211 F.3d at 433 (quoting 28 U.S.C. § 2255). As the
certificate of appealability was limited to Shell’s challenge
to the constitutionality of his representation, see id., we
conduct our review in light of the test first annunciated by
Strickland v. Washington, 466 U.S. 668, 688-94 (1984). See, e.g.,
Kitchen, 227 F.3d at 1019; Prewitt v. United States, 83 F.3d 812,
816 (7th Cir. 1996). The familiar standard of Strickland
requires a showing that: (1) Shell’s counsel was objectively
deficient; and (2) this deficient performance so prejudiced
his defense that Shell was deprived of a fair trial. See
Fountain, 211 F.3d at 434; see also Prewitt, 83 F.3d at 816.
Turning to the first prong, a constitutionally deficient
performance is one that falls below an objective standard of
reasonableness under prevailing professional norms. See,
e.g., Granada v. United States, 51 F.3d 82, 83 (7th Cir. 1995). In
the Supreme Court’s words, “a court must indulge a strong
presumption that counsel’s conduct falls within the range of
reasonable professional assistance.” Strickland, 466 U.S. at
689; see also Galbraith v. United States, 313 F.3d 1001, 1008
(7th Cir. 2002). “[B]ecause counsel is presumed effective, a
party bears a heavy burden in making a winning claim
based on ineffective assistance of counsel.” Fountain, 211
F.3d at 434 (quoting United States v. Trevino, 60 F.3d 333, 338
(7th Cir. 1995)). Generally, failing to pursue a particular
issue is not deficient performance, but such a conclusion
depends on the attorney’s reasoning (or lack thereof). See
Kitchen, 227 F.3d at 1020. “When the claim of ineffective
assistance is based on counsel’s failure to present a motion
to suppress, we have required that a defendant prove the
motion was meritorious.” United States v. Cieslowski, 410
F.3d 353, 360 (7th Cir. 2005); see also Owens v. United States,
387 F.3d 607, 610 (7th Cir. 2004).
Shell claims his attorney was ineffective because he failed
to present several valid arguments in the motion to sup-
6 No. 04-3890
press. Against this backdrop, we consider the arguments
Shell believes his attorney should have made. Specifically,
Shell contends that his attorney should have argued the
interception of the communications constituted both an
unreasonable seizure and an unreasonable search of his
body in violation of the Fourth Amendment. Shell further
claims his attorney should have argued that the Title III
application and warrant failed to specify the location of the
search with requisite particularity. Finally, he asserts that
his attorney was ineffective because he failed to argue that
the government omitted material information regarding
how the search was to be conducted, thus transforming
Chief Judge Moran into a rubber stamp.
A.
We begin our analysis by considering Shell’s two Fourth
Amendment challenges. Shell first contends that the
government seized his body through the placement of the
bug in his visitor’s badge. “A ‘seizure’ triggering the Fourth
Amendment’s protections occurs only when government
actors have, ‘by means of physical force or show of author-
ity . . . in some way restrained the liberty of a citizen.’ ”
Graham v. Connor, 490 U.S. 386, 395 n.10 (1991) (quoting
Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)); see also United States
v. Hendricks, 319 F.3d 993, 999 (7th Cir. 2003); United States
v. Thompson, 106 F.3d 794, 798 (7th Cir. 1997). Rather than
explaining the alleged seizure of his person using this well-
established framework, Shell roots his argument in Fourth
Amendment precedent regarding seizures of property. See
United States v. Karo, 468 U.S. 705, 712 (1984) (“A ‘seizure’ of
property occurs when there is some meaningful interference
with an individual’s possessory interests in that property.”)
(internal citations omitted). Shell offers no support for
No. 04-3890 7
deploying this characterization of a seizure in this case. As
Shell has failed to show that DEA agents in any way
restrained his liberty, he has not established an illegal
seizure for Fourth Amendment purposes.
We now turn to Shell’s claim that the DEA’s actions in
bugging his badge constituted an unconstitutional search.
“As Justice Harlan’s oft-quoted concurrence described it, a
Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society
recognizes as reasonable.” See Kyllo v. United States, 533 U.S.
27, 33 (2001). One must first have a legitimate expectation of
privacy to trigger the protections of the Fourth Amendment.
See Hudson v. Palmer, 468 U.S. 517, 525 (1984); see also United
States v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989). To
determine reasonableness under the Fourth Amendment,
we balance the degree of the intrusion into Shell’s privacy
interests against the government’s need for the search. See,
e.g., United States v. Knights, 534 U.S. 112, 118-19 (2001).
While we cannot say that Shell had no expectation of
privacy when visiting Hoover in prison, he did have a
greatly diminished expectation of privacy while communi-
cating with a prison inmate. See, e.g., Sababu, 891 F.2d at
1329 (“We believe that it was unreasonable for her to expect
that telephone calls she placed to an inmate . . . would be
private. As the Supreme Court has held, ‘in prison, official
surveillance has traditionally been the order of the day.’ ”);
see also Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (“In
seeking entry to [a prison], the visitor simultaneously
acknowledges a lesser expectation of privacy.”); Romo v.
Champion, 46 F.3d 1013, 1018 (10th Cir. 1995). On the other
side of the ledger, the government made a substantial
showing in its application for the Title III warrant that the
monitoring at Vienna would reveal ongoing GD activity.
Balancing the lessened expectation of privacy and the
8 No. 04-3890
proffered value of the search, we conclude that this was a
reasonable search and did not infringe on Shell’s Fourth
Amendment rights.
Still, Shell asserts that the search was unreasonable
because the placement of the bug was more intrusive than
the warrant permitted. As an initial matter, we note that a
search does not need to be the least intrusive alternative to
be constitutionally valid, it simply has to be reasonable.
United States v. Prevo, 435 F.3d 1343, 1348 (11th Cir. 2006). In
support of his position, Shell compares his situation to the
one in Ybarra v. Illinois, 444 U.S. 83 (1979). Ybarra involved
a case in which the police had a warrant to search a bar, and
a bartender named Greg, for drugs. See Ybarra, 444 U.S. at
90. The police, expanding the warrant’s terms, also searched
Ybarra, a bar patron, despite having no particularized
reason to search him or authorization to do so. See id. The
Supreme Court found the government’s actions to be in
violation of Ybarra’s Fourth Amendment rights. See id. at 92
(“Although the search warrant, issued upon probable cause,
gave the officers authority to search the premises and to
search ‘Greg,’ it gave them no authority whatever to invade
the constitutional protections possessed individually by the
tavern’s customers.”).
Shell’s reference to Ybarra is inapt. Shell tries to bring his
case in line with Ybarra by arguing that, while the warrant
authorized the search of the Visitor Area, the government
searched his body. Neither characterization of the search is
correct. Shell voluntarily wore the badge as part of visitor
protocol, and the bug’s only function was authorized by the
warrant. The Title III application and warrant were directed
precisely towards intercepting the communications between
these two men, referenced by name, as they discussed gang
business in the Visitor Area. This was not a search of Shell’s
No. 04-3890 9
body (as he puts it). Rather it was an efficient interception
of his conversations with Hoover. The Title III warrant
expressly sanctioned the interception of Shell’s conversa-
tions with Hoover, making the search no more intrusive
than was authorized. Unlike Ybarra, in which the police
infringed on Ybarra’s independent constitutional rights, in
this case the DEA simply did an effective job of precisely
what they were allowed to do—intercept conversations
between GDs in the Visitor Area. A motion to suppress on
these grounds would not have been meritorious, and
therefore Shell cannot succeed on an ineffective assistance
of counsel claim.
B.
In a closely related argument, Shell asserts that the Title III
application and warrant were defective because of a lack of
particularity in describing that the search and seizure would
be “of Gregory Shell’s body.” As the Supreme Court has
reemphasized in United States v. Grubbs, 547 U.S. ___, 126
S.Ct. 1494, 1500 (2006), the Fourth Amendment does not
have a general particularity requirement, but merely
requires particularity in a warrant’s descriptions of the
“place to be searched” and the “persons or things to be
seized.” The Supreme Court repeatedly has resisted at-
tempts to expand this requirement to “unenumerated
matters.” Id. See also Dalia v. United States, 441 U.S. 238(1979). For example, in Dalia, the Supreme Court approved
of a Title III warrant that authorized the placement of a bug
in a petitioner’s office despite the petitioner’s particularity
challenge on the grounds that it did not specify that the
police would use an undercover entry when installing the
bug. 441 U.S. at 254-56. The Supreme Court instructed that
nothing in the Fourth Amendment requires search warrants
10 No. 04-3890
to “include a specification of the precise manner in which
they are to be executed.” Id. at 257.
Shell counters that greater particularity was required
in this case because the placement of the bug on his body
was a more intrusive search than merely intercepting
conversations in the Visitor Area. As noted above, this was
not a body search. The only search from the electronic bug
was the authorized interception of conversations. Simply
calling the surveillance a search of the body does not
make the DEA’s actions more intrusive than the warrant
permitted. Cf. United States v. Husband, 226 F.3d 626, 633-36
(7th Cir. 2000).
We agree with the district court that Shell presents a
challenge to the method that the police employed to carry
out the search, rather than to its intrusiveness. Under Dalia,
the DEA did not have to include details describing how they
would accomplish the search. 441 U.S. at 257. The Title III
application and warrant clearly described the place to be
searched and the conversations that were to be intercepted,
thus identifying, for both the reviewing judge and for the
police, the precise location of the interceptions and the
privacy interests at stake. This was not a general warrant, in
which officers have unwarranted and unconstitutional
latitude to conduct an overly broad search. See Hessel v.
O’Hearn, 977 F.2d 299, 302 (7th Cir. 1992) (“We should not
like to be understood that a search warrant gives the
executing officers a blank check. . . . Flagrant disregard for
the terms of the warrant transforms it into a general war-
rant, which the Fourth Amendment forbids.”). Again, as
Shell’s argument on this point could not prevail, his previ-
ous counsel was not ineffective for not addressing it.
No. 04-3890 11
C.
Finally, Shell argues that, by artfully drafting its Title III
application and not including material information about
how it planned to intercept the communications, the
government effectively rendered the judge’s review mean-
ingless. A claim that the government, through acts or
omissions, deliberately misled a judge when seeking a
warrant is serious, which explains the stringent standard of
review in such cases. See Franks v. Delaware, 438 U.S. 154,
155-56 (1978). To qualify for a Franks hearing to evaluate
such an assertion, Shell would have to make a substantial
preliminary showing that: (1) the application for the warrant
contained false statements or omitted information; (2) the
DEA made the false statements or omitted the information
intentionally, or with reckless disregard for the truth; and
(3) the omitted information was necessary to support the
authorization for the search. Id. In this case, Shell merely
states that the government intentionally omitted that the
search would involve the bugging of the badge because of
fears that the reviewing judge would otherwise reject the
application. Shell offers no support for this contention,
instead treating this conclusion as flowing from the fact that
the police did not include the information in the application.
It was, however, not necessary to include the means of the
search in the application. Furthermore, Shell makes no
substantial demonstration that the DEA acted dishonestly
or with reckless disregard for the truth. Shell’s counsel
cannot be held ineffective for failing to introduce this
unsubstantiated issue.
III.
While Shell attempts to indict the actions, or lack thereof,
of his former counsel regarding a variety of issues, he fails
12 No. 04-3890
to show that any have merit. Consequently, we need not
proceed to the second prong of the Strickland analysis and
consider whether any of the alleged failures of his counsel
prejudiced him. Shell received adequate representation in
his original trial and appeal, and we, therefore, AFFIRM the
district court’s decision to deny him relief under 28 U.S.C.
§ 2255.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-23-06