United States v. Martin, Troy ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
T ROY M ARTIN , E DDIE B ELL,
JOHN B RAYBOY, M ARIO T AYLOR
and JEROME T ERRELL,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:04-cr-495—Rebecca R. Pallmeyer, Judge.
A RGUED O CTOBER 7, 2009—D ECIDED A UGUST 24, 2010
Before R IPPLE, K ANNE and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. The defendants have been con-
victed of violating various provisions of 21 U.S.C. §§ 841,
843 and 846, for their respective roles in a narcotics con-
2 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
spiracy.1 They have timely appealed their convictions on
various grounds.2 For the reasons set forth in this opin-
ion, we affirm the judgment of the district court. How-
ever, for certain defendants, we order limited remands
for resentencing.
I
BACKGROUND
On September 7, 2004, a grand jury indicted the defen-
dants and many other individuals for various narcotics
and firearm offenses. The indictment described the defen-
dants’ participation in a sprawling narcotics-distribu-
tion network on the west side of Chicago, Illinois, that
had been in existence since 1998. A large part of the
network consisted of a street gang called the “Mafia
Insane Vice Lords” or the “Mafia Insanes.” That gang was
organized hierarchically and employed violence to con-
trol “drug spots” where narcotics were sold. Individual
sellers paid a fee to the gang’s leadership (a “street tax”)
in return for supply of narcotics, protection and the
ability to sell at the drug spots. Troy Martin was the
founder and “king” of the Mafia Insanes. Eddie Bell and
Donnell Simmons were high-ranking members of the
Mafia Insanes’ leadership who supplied narcotics to the
1
The jurisdiction of the district court is based on 18 U.S.C.
§ 3231.
2
The jurisdiction of this court is based on 28 U.S.C. § 1291.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 3
sellers and collected street taxes from the drug spots.3
Jerome Terrell was a member of another gang called
the “Cicero Insane Vice Lords” and also supplied
narcotics to Mr. Simmons. Mario Taylor was a member
of another street gang called the “Four Corner Hustler”
gang; Mr. Taylor coordinated the supply of narcotics
to Mr. Simmons and Mr. Terrell. John Braboy assisted
Mr. Taylor with packaging and transporting narcotics
to Mr. Simmons.4
3
Donnell Simmons’s appeal has been severed from this
consolidated appeal. References to Mr. Simmons in this opin-
ion are for contextual purposes only.
4
The indictment charged Messrs. Martin, Bell, Simmons,
Taylor, Braboy and Terrell with conspiracy to possess and
distribute cocaine in violation of 21 U.S.C. § 846 (“Count One”).
Mr. Martin also was charged with eighteen counts of using
a telephone to facilitate a narcotics conspiracy in violation of
21 U.S.C. § 843(b). Mr. Bell was charged with one count of
distributing heroin in violation of 21 U.S.C. § 841(a)(1) and four
telephone counts in violation of § 843(b). (The Government
eventually dismissed the distribution count against Mr. Bell.)
Mr. Simmons was charged with two distribution counts in
violation of § 841(a)(1). Mr. Taylor was charged with five
telephone counts in violation of § 843(b) and five possession
counts in violation of § 841(a)(1). Mr. Braboy was charged with
two possession counts in violation of § 841(a)(1). (We note
that the indictment and the caption of this appeal refer to
Mr. Braboy as “Brayboy.” However, in his appellate brief, he
informs us that the proper spelling of his name is “Braboy.” See
Braboy Appellant’s Br. 2 n.3. Accordingly, we shall refer to him
(continued...)
4 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
Many of the defendants pleaded guilty. The remaining
defendants proceeded to trial. In August 2006, Messrs.
Martin, Bell and two others were tried and convicted. In
April 2007, Messrs. Taylor and Braboy were tried and
convicted. In July 2007, Mr. Terrell was tried alone
and convicted. At each trial, the Government’s evidence
consisted primarily of wiretap recordings that the Gov-
ernment had obtained during its investigation into the
conspiracy, as well as the testimony of police officers,
federal agents and cooperating witnesses. Additional
facts shall be provided on an issue-by-issue basis.
II
ANALYSIS
A. Challenge to the Admissibility of the Wiretap Re-
cordings
1.
In December 2002, the Government began utilizing
the procedures described in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, see 18 U.S.C.
§§ 2510-22, for intercepting wire communications of
suspected members of the conspiracy. Several suspects’
phones were targeted during the Government’s inves-
tigation. We are concerned primarily with the Govern-
4
(...continued)
as “Braboy” in this opinion.) Mr. Terrell was charged with
two distribution/possession counts in violation of § 841(a)(1)
and three telephone counts in violation of § 843(b).
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 5
ment’s wiretaps on the phones of Messrs. Martin and
Simmons.
Each time the Government desired to intercept com-
munications on a particular phone, it sought authoriza-
tion from the Chief Judge of the United States District
Court for the Northern District of Illinois. Included with
the Government’s wiretap applications were probable
cause affidavits that identified the phone to be targeted
and a description of the subject matter of the communica-
tion that the Government expected to intercept. The
affidavits also described the bases for the Government’s
belief that criminal matters would be discussed. The
Chief Judge issued orders authorizing the interception
of communications on the phones for thirty days at a
time. If the Government desired to continue a phone
intercept for longer than thirty days, the Government
would submit to the Chief Judge a renewal application,
including updated probable cause affidavits.
The Government recorded the wiretap intercepts on
magneto-optical (“MO”) disks. MO disks cannot be edited.
At the completion of each thirty-day intercept period for
a particular phone, irrespective of whether the Govern-
ment had obtained an extension to continue its wire-
tap on that phone, the Government sealed, in the
Chief Judge’s presence, the original MO disks.5 The
Government kept the sealed MO discs in a DEA evidence
5
As explained more fully below, the relevant statute in this
appeal, 18 U.S.C. § 2518(8)(a), requires the Government to seal
wiretap intercepts at the completion of each authorized inter-
cept period.
6 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
vault. The Government made duplicate recordings of
each MO disc for its own use in its pending investiga-
tion. Also, police officers created, in real time, line-sheets
describing the substance of the intercepted communica-
tions. These line-sheets were disseminated to officers
and used extensively in the Government’s pending in-
vestigation.
The Government employed these procedures for wire
communications on the suspects’ phones from approxi-
mately December 2002 until October 2003. With respect
to the phones relevant on this appeal, the Chief Judge
authorized the Government to wiretap Messrs. Martin’s
and Simmons’s phones for the following periods:
Mr. Martin’s target phone 2 from February 2003 to Sep-
tember 9, 2003, and Mr. Simmons’s target phone 4
from August 2003 to September 17, 2003. See Tr. at 55-58,
61-62, Mar. 3, 2006.
In October 2003, the Government’s investigation was
nearing an end, and the Government planned to arrest
many of the suspects. The Government intended to
play the wiretap recordings for the arrestees to
facilitate the interrogations. However, on October 10,
2003, the Government discovered that some of its
working copies of the communications on Messrs.
Martin’s and Simmons’s phones were incomplete. On
the same day, the Government informed the Chief Judge
and sought permission to unseal the MO disks that
had been stored in the DEA vault. On October 14, 2003,
the first business day after the Columbus Day holiday,
the court authorized unsealing. On that same day, the
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 7
Government unsealed the recordings in its vault and
discovered that portions of certain sealed MO discs
were blank (hereinafter referred to as “the blank-sealed
recordings”).6 Later, that same day, after receiving
the Chief Judge’s permission to do so, the Government
sealed reconstituted MO discs of the blank-sealed re-
cordings, which the Government had created by dupli-
cating its working copies; however, certain working
copies of the blank-sealed recordings had been lost and,
for those portions of intercepted communications, no
reconstituted MO discs could be sealed.7
6
Specifically, (1) the MO disc purportedly containing re-
cordings of Mr. Martin’s target phone 2 during the period
April 16 to May 15, 2003, contained no recordings; (2) the disc
purportedly containing recordings of Mr. Martin’s target
phone 2 during the period June 13 to July 11, 2003, contained
no recordings for the period June 13 to July 8; and (3) the disc
purportedly containing recordings of Mr. Simmons’s target
phone 4 during the period August 19 to September 12, 2003,
contained no recordings of calls between September 9 and
September 12, and did not include recordings of any calls
made over the “push-to-talk” feature of the phone. See Appel-
lee’s Br. 16-17; R.882 at 4-5; see also infra note 17.
7
Specifically, on October 14, 2003, the Government sealed
duplicate recordings of the calls on Mr. Martin’s target phone 2
for the period June 13 to July 8, and duplicate recordings of the
calls on Mr. Simmons’s target phone 4 for the period Septem-
ber 9 to September 12. However, the Government was unable
to reconstitute the recordings on Mr. Martin’s target phone 2
(continued...)
8 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
The takedown was delayed because of the problem
with the tapes; the Government continued its investiga-
tion without using the blank-sealed recordings. For
instance, the Government developed probable cause
applications for wiretaps on additional suspects’ phones
without reference to the contents of the blank-sealed
recordings. According to one Government agent, the
Government essentially “set [the blank-sealed re-
cordings] aside and decided not to use them in any
further enforcement action or investigation.” Tr. at 61,
Mar. 3, 2006. Eventually the takedown occurred, and
Mr. Martin was arrested.
2.
During pretrial proceedings, Mr. Martin filed a
motion to suppress, contending that the Government
had violated the immediate sealing requirement of 18
U.S.C. § 2518(8)(a). 8 R.626 at 1. In his view, the statute
7
(...continued)
for the period April 16 to May 15, or recordings of the push-to-
talk calls on Mr. Simmons’s target phone 4 for the period
August 19 to September 12. Instead, on October 17, 2003, the
Government sealed copies of its line-sheets for those periods.
See Martin/Bell Appellants’ Br. 16-17; R.882 at 4-5.
8
That statutory provision reads:
The contents of any wire, oral, or electronic communica-
tion intercepted by any means authorized by this
chapter shall, if possible, be recorded on tape or wire or
(continued...)
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 9
had been violated because the reconstituted copies had
not been sealed immediately after the conclusion of
the wiretaps. He requested an evidentiary hearing “to
determine whether evidence resulting from the ille-
gally intercepted conversations should be suppressed.”
Id. at 2.
The Government opposed the motion and Mr. Martin’s
request for a hearing. R.882. The Government conceded
that it had sealed MO discs that it believed to have con-
8
(...continued)
other comparable device. The recording of the
contents of any wire, oral, or electronic communication
under this subsection shall be done in such a way as
will protect the recording from editing or other alter-
ations. Immediately upon the expiration of the period
of the order, or extensions thereof, such recordings
shall be made available to the judge issuing such
order and sealed under his directions. Custody of the
recordings shall be wherever the judge orders. They
shall not be destroyed except upon an order of the
issuing or denying judge and in any event shall be
kept for ten years. Duplicate recordings may be
made for use or disclosure pursuant to the provisions
of subsections (1) and (2) of section 2517 of this chapter
for investigations. The presence of the seal provided
for by this subsection, or a satisfactory explanation
for the absence thereof, shall be a prerequisite for
the use or disclosure of the contents of any wire, oral, or
electronic communication or evidence derived there-
from under subsection (3) of section 2517.
18 U.S.C. § 2518(8)(a).
10 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
tained recordings, but which were actually blank or
partially blank. Id. at 1. However, the Government vol-
unteered not to use any of the blank-sealed recordings
as evidence at trial. Id. at 7. With respect to evidence
derived from those recordings, the Government con-
tended that the derivative evidence should be admissible
for two reasons. First, the Government contended
that, even though it would not use the blank-sealed
recordings at trial, they were admissible in any event
because the Government had a “satisfactory explanation”
for the non-sealing: “DEA technician error.” Id. at 9-10.9
9
The Government included an affidavit from Victor Jasevicius,
Group Supervisor for the DEA Technical Operations Group
that conducted the wiretaps, which stated,
After the DEA learned in mid-October 2003 that some
previously-sealed MO discs did not contain any or
complete call data for certain wiretap interception
periods, DEA conducted an investigation into the
particular reason why the equipment used to intercept
and record communications would produce a blank
or incomplete MO disc. DEA concluded that a number
of operator errors could have occurred, including the
failure to properly input or activate a job order, as
required by the program, or the assignment of a job
to the incorrect MO disc. Any one of those errors
could have been the cause, but no final determination
could be made because the computer system’s log
did not reflect which of the possible errors occurred.
[ ] Tests performed on the equipment determined that
it was functioning within its design specifications.
DEA determined that the same operator was involved
(continued...)
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 11
Second, the Government contended that evidence
derived from the blank-sealed recordings, before the
sealing obligation arose for those recordings, should be admis-
sible because 18 U.S.C. § 2517(1)-(2) permits the use of
recordings for investigatory purposes. Id. at 11-12 (citing
United States v. Donlan, 825 F.2d 653, 657 (2d Cir. 1987)).
Confronting the prohibition in § 2518(8)(a) against the
use or disclosure at trial of evidence derived from
unsealed recordings, the Government contended that
the prohibition should not be applied strictly. The Gov-
ernment urged the district court to adopt the United
States Court of Appeals for the Second Circuit’s broad
construction of the statute, as explained in United States
v. Donlan, 825 F.2d 653 (2d Cir. 1987).
In response, Mr. Martin contended that no excuse could
justify the major delay in sealing that had occurred in
his case. R.927. He refuted the Government’s proposed
excuse—operator error—as unsupported by the record
because the Jasevicius affidavit stated that the DEA “was
unable to conclude why the error occurred.” Id. at 3.
Furthermore, Mr. Martin contended that the Supreme
9
(...continued)
in the job orders creating those MO discs which were
found to be partially or completely blank. DEA has re-
assigned this technician to other responsibilities and
taken other steps to ensure that the problem does not
recur. Following the change in technicians, DEA has
not experienced any similar problems.
R.882, Ex. 7, ¶¶ 5-6.
12 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
Court of the United States has not endorsed “mistaken
belief” as a satisfactory explanation for a sealing error.
Id. at 3-4 (citing United States v. Ojeda Rios, 495 U.S. 257(1990)). Nor was lack of proof of alteration sufficient
to excuse the sealing error because, according to the
Supreme Court, “ ‘[t]o hold that proof of nontampering
is a substitute for a satisfactory explanation is foreclosed
by the plain words of the sealing provision.’ ” Id. at 3
(quoting Ojeda Rios, 495 U.S. at 264). Finally, Mr. Martin
contended that no derivative evidence should be
admitted because Donlan and its broad construction of
§ 2518(8)(a) misunderstood “the context of the entire
statute.” Id. at 4.
The district court held an evidentiary hearing on the
motion to suppress. The district court stated that, because
the Government had volunteered not to use the actual
tapes, the district court understood Mr. Martin’s motion
only to apply to “any information that’s derivative of
the tapes.” Tr. at 3, Feb. 17, 2006. The district court
wanted to know “exactly what information we are
talking about.” Id. In response, the Government explained
that it had planned to use the blank-sealed recordings
in draft affidavits and complaints to secure arrest war-
rants in October 2003. Id. at 11-12. Then, when the
sealing problem was discovered in mid-October, the
Government scrapped those drafts and decided simply
to exclude the problematic calls from its investigation
from that point forward. Id. However, the Government
conceded that it had used information obtained from
the blank-sealed recordings in order to prepare officers
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 13
while the wiretaps were still active—i.e., during the
investigation. Id. at 11. The Government raised its two ar-
guments for why the derivative evidence—any derivative
evidence—was admissible: the satisfactory excuse for
non-sealing and the broad interpretation of § 2518(8)(a).
At the evidentiary hearing, Mr. Martin contended that
the Government had the burden to show what evidence
was derived from the blank-sealed recordings. Id. at 14,
22, 36, 39. He contended that the Government had failed
to meet its burden, but, in any event, he posited that the
derivative evidence was extensive because “during each
one of these tapings [the Government] ha[d] agents
monitoring these calls,” “making line sheets and making
summaries of the calls,” and “making transcripts of the
calls.” Id. at 14; see also id. at 37. Mr. Martin contended
that the line-sheets, summaries and transcripts were
used throughout the Government’s investigation, which
“mushroom[ed] out from the wiretaps.” Id. at 14-16; see
also id. at 20 (“There is no way we can now go back and
sort out and say, ‘Well, they didn’t use that[,] . . . they
erased the knowledge that they obtained.’ ”). Mr. Martin
suggested that if the Government could not establish
what derivative use was made of the blank-sealed re-
cordings, the proper sanction would be to dismiss the
indictment. Id. at 21-22. He also reiterated his opposition
to the Government’s two arguments for the admissi-
bility of the derivative evidence.
The district court suggested that this case was sui
generis because the Government made a mistake in
recording, not in sealing. Id. at 30-31. The district court
14 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
stated, “I am really uncomfortable with the idea that we
ought to somehow say that everything during the taped
period is off the—is somehow tainted in a way that re-
quires dismissal of the indictment . . . . It seems to be a
sledgehammer of relief when what we really need is
much more of a precision tool.” Id. at 33. Instead, the
district court requested more information about how the
Government had used its copies of the blank-sealed
recordings and clarification on what exactly was
derived from them. Id. at 34.
Another hearing was held, and Mr. Martin cross-exam-
ined DEA special agent Jeffrey Konvalinka, who had
managed the investigation and the wiretap operation.
Mr. Martin’s counsel asked Agent Konvalinka about
when and how the blank-sealed recordings were used.
See generally Tr. at 70, Mar. 3, 2006 (describing how sum-
maries and line-sheets were prepared as calls were re-
corded); id. at 71-72, 74-75 (describing how information
derived from the blank-sealed calls was routed to
officers to assist their surveillance efforts). Mr. Martin
argued to the district court that the Government used
the blank-sealed recordings to secure additional wiretap
authorizations and, thus, that the sealing problem was
so pervasive that the indictment must be dismissed.
See id. at 104.
The district court declined to rule, despite the Govern-
ment’s request that the court do so, on the Govern-
ment’s first argument for admissibility: that the Govern-
ment had a satisfactory explanation for the sealing error.
The district court considered that issue to be “moot,”
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 15
because the court found that the blank-sealed recordings
“were not used in connection with any ongoing ar-
rests,” “weren’t presented to the grand jury,” “weren’t
used in any affidavits for purposes of search warrants,”
“weren’t used to draft any complaints,” and “weren’t
used in connection with obtaining an indictment.” Id. at
99, 101. The district court stated, “I haven’t heard about
what specific improper use of any of this evidence has
happened.” Id. at 100. Nevertheless, the district court
seems to have concluded that at least some evidence
was derived from the blank-sealed recordings. 1 0 The
district court noted that the Government stopped using
the blank-sealed recordings as soon as the sealing error
was discovered and did not intend to use them as evi-
10
Later in its ruling, the district court stated that “it is theoreti-
cally possible that some information that shows up in the
line records or in the transcripts was in the minds of agents
when they went out and did their further investigation,” Tr.
at 99, Mar. 3, 2006, and the district court recognized that the
blank-sealed recordings had been included in the Govern-
ment’s probable cause affidavits to obtain additional wiretap
authorizations, id. at 104. With respect to this derivative evi-
dence, the district court appears to have agreed with the Gov-
ernment’s theory that § 2518 should be applied broadly,
as articulated by the United States Court of Appeals for the
Second Circuit in United States v. Donlan, 825 F.2d 653 (2d Cir.
1987). In other words, the district court believed that § 2518
permitted use at trial of evidence derived from wiretap re-
cordings, as long as the derivation occurred prior to the vio-
lation of the wiretap’s sealing obligation. Id. at 100, 104-05.
16 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
dence at trial. Thus, the district court ruled that “the
motion is effectively granted without objection.” Id. at 99.
Mr. Martin proceeded to trial, during which 160 incrimi-
nating recordings of calls from the wiretapped phones
and transcripts of the calls were admitted into evidence.
See generally Trial Tr. at 85-86, 95-96, 103, 107, Aug. 30, 2006.
Neither the blank-sealed recordings nor any transcripts
of those recordings were admitted. Mr. Martin was con-
victed and sentenced to life in prison.
Mr. Martin appealed his conviction to this court, con-
tending that the district court had erred by refusing to
dismiss the indictment.1 1 After hearing oral arguments
and considering the parties’ submissions, we maintained
jurisdiction over the case and granted a limited remand
to the district court to rule on whether the Government
had a satisfactory explanation for the sealing error, the
issue it had pretermitted earlier. See App. R.112 (No. 07-
2272).
The district court considered the issue and ruled that
“the government’s explanation for its failure to seal is
satisfactory.” R.2374 at 3. The district court noted that
11
Although the district court’s ruling was characterized in terms
of granting Mr. Martin’s motion to suppress, the district court’s
March 3, 2006 ruling properly is understood as constituting
a denial of the motion with respect to both the evidence
derived from the blank-sealed recordings and Mr. Martin’s
request to dismiss the indictment. All parties have proceeded
under that assumption.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 17
the Government never has stated definitively the cause
for the sealing error, but believed it was caused by
operator error. The district court applied the framework
articulated in United States v. Coney, 407 F.3d 871, 875
(7th Cir. 2005), and concluded that the Government’s
explanation was satisfactory. The district court noted
that the Government’s explanation was believable be-
cause all of the Government’s actions had been consistent
with its reasonable belief that it had, in fact, properly
sealed the blank-sealed recordings. The district court
did not find the length of delay in sealing to be “trouble-
some.” Id. at 4. The district court believed the nature
of the crime charged and the relative lack of notoriety
of the defendants tended to support the Government’s
explanation because nothing about this narcotics conspir-
acy case was unusual. Finally, the district court con-
sidered the importance of the problematic recordings to
be minimal because the Government did not use them
once it realized that the sealing error had occurred
and because they played no part during the trial.
3.
The parties’ contentions before this court largely
mirror the arguments made during the district court
proceedings. Mr. Martin contends that the district court
misapplied § 2518(8)(a). He contends that the district
court should have found that the Government lacked
a satisfactory explanation for the sealing error. He fur-
ther contends that so much evidence was derived from
the blank-sealed recordings that, without a satisfactory
18 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
explanation for the sealing error, much of the Govern-
ment’s evidence at trial should have been excluded.
He asks that his conviction be reversed.
The Government concedes that the reconstituted re-
cordings were not tendered for judicial sealing immedi-
ately upon the expiration of the wiretap authorizations.
The Government urges us to interpret § 2518(8)(a)
broadly so as not to require suppression of the derivative
evidence. Alternatively, the Government contends that
the operator error and the Government’s good-faith
attempt to comply with the sealing requirement con-
stitute satisfactory explanations for its failure to comply
with the sealing statute.
4.
Title III of the Omnibus Crime Control and Safe Streets
Act of 1968 established a comprehensive statutory regime
by which the Government may intercept wire, oral or
electronic communications. See 18 U.S.C. §§ 2510-22;
Clifford S. Fishman & Anne T. McKenna, Wiretapping
and Eavesdropping: Surveillance in the Internet Age § 1:10
(3d ed. 2009) (providing background); Wayne R. LaFave
et al., Criminal Procedure §§ 4.5-4.6 (5th ed. 2009) (dis-
cussing the history of the Act and its amendments). The
Act created procedural safeguards to protect individuals’
privacy and to prevent other forms of misuse of wire-
tapping. See generally 18 U.S.C. § 2518 (establishing wire-
tap authorization procedures for the Government). One
of the safeguards of this statute is a provision where-
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 19
by wiretap intercepts may be authorized only for thirty
days at a time; any extension must comply with the
same procedures required to obtain an initial wiretap
authorization. See 18 U.S.C. § 2518(5).1 2 The Act also
strictly regulates how intercepted communication may
be used or disclosed during and subsequent to a Govern-
ment investigation. See generally 18 U.S.C. § 2517.
The Act requires that wiretap intercepts “shall, if possi-
ble, be recorded . . . in such a way as will protect the
recording from editing or other alterations.” 18 U.S.C.
§ 2518(8)(a). “Immediately upon the expiration of the
period of the [wiretap authorization] order, or extension
thereof, such recordings shall be made available to the
judge issuing such order and sealed under his direc-
tions.” Id. The purpose of this sealing requirement “is to
ensure the reliability and integrity of evidence obtained
by means of electronic surveillance.” United States v. Ojeda
Rios, 495 U.S. 257, 263 (1990). “[T]he seal is a means of
ensuring that subsequent to its placement on a tape, the
Government has no opportunity to tamper with, alter, or
edit the conversations that have been recorded.” Id. We
apply the immediacy requirement strictly. See United
12
“ ‘[A]n order authorizing surveillance of the same subject, at
the same location, regarding the same matter as an earlier
authorized surveillance, constitutes an “extension” of the
earlier authorization . . . .’ ” United States v. Jackson, 207 F.3d
910, 916 (7th Cir. 2000) (quoting United States v. Carson, 969
F.2d 1480, 1488 (3d Cir. 1992)), judgment vacated on other
grounds, 531 U.S. 953 (2000).
20 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
States v. Coney, 407 F.3d 871, 873 (7th Cir. 2005) (“ ‘The
term “[i]mmediately” means that the tapes should be
sealed either as soon as practical after the surveillance
ends or as soon as practical after the final extension
order expires.’ ” (quoting United States v. Williams, 124
F.3d 411, 429 (3d Cir. 1997))); see also Fishman & McKenna,
supra, § 19:10 (discussing other circuits’ application of the
immediacy requirement). The Supreme Court also has
stated that Ҥ 2518(8)(a) applies to a delay in sealing, as
well as to a complete failure to seal, tapes.” Ojeda Rios,
495 U.S. at 264. Similarly, we believe that what occurred
in this case, sealing blank recordings, does not comply
with the sealing requirement. Cf. id. at 263 (“The presence
or absence of a seal does not in itself establish the
integrity of electronic surveillance tapes. Rather, the seal
is a means of ensuring that subsequent to its placement
on a tape, the Government has no opportunity to tamper
with, alter, or edit the conversations that have been
recorded.”). Nor is the sealing of line-sheets or call sum-
maries a proper method of compliance.
The sealing provision includes its own exclusionary
remedy: “The presence of the seal provided for by this
subsection, or a satisfactory explanation for the absence
thereof, shall be a prerequisite for the use or disclosure
of the contents of any wire, oral, or electronic communi-
cation or evidence derived therefrom under subsec-
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 21
tion (3) of section 2517.” 1 3 18 U.S.C. § 2518(8)(a).1 4
The Supreme Court has noted that the satisfactory
explanation prong of § 2518(8)(a) “require[s] that the
13
Subsection (3) of § 2517 provides:
Any person who has received, by any means authorized
by this chapter, any information concerning a wire,
oral, or electronic communication, or evidence
derived therefrom intercepted in accordance with the
provisions of this chapter may disclose the contents
of that communication or such derivative evidence
while giving testimony under oath or affirmation in
any proceeding held under the authority of the
United States or of any State or political subdivision
thereof.
14
The United States Court of Appeals for the Second Circuit
has articulated an interpretation of the § 2518(8)(a) exclu-
sionary remedy that would permit certain uses of wiretap
recordings, despite the lack of a satisfactory explanation for a
violation of the statute’s immediate sealing requirement. See
United States v. Donlan, 825 F.2d 653 (2d Cir. 1987). As best we
can tell, this interpretation has not been adopted by any other
court of appeals. See Clifford S. Fishman & Anne T. McKenna,
Wiretapping and Eavesdropping: Surveillance in the Internet Age
§ 19:8 (3d ed. 2009) (suggesting that courts have divided over
the correctness of the Donlan interpretation). Although the
parties differ over the correctness of Donlan, and therefore
the propriety of the district court’s application of Donlan’s
rationale, see supra note 10, resolution of this issue is unneces-
sary. The Government has provided a satisfactory explanation
for its sealing error, and our discussion will be limited to that
aspect of the statutory provision.
22 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
Government explain not only why a delay occurred but
also why it is excusable.” Ojeda Rios, 495 U.S. at 265. In
Ojeda Rios, the Supreme Court concluded that the Gov-
ernment’s “good-faith, objectively reasonable misunder-
standing of the statutory term ‘extension’ ” was a satisfac-
tory explanation for the Government’s failure to seal
immediately wiretap recordings. Id. at 264-66.1 5 The
Supreme Court insisted on a showing of “good cause
for the sealing delays” and rejected the Government’s
attempt to show merely that no tampering with the
15
However, the Court remanded the case so that the district
court could determine whether the Government’s proffered
explanation was supported by the factual record developed
before the district court. Courts of Appeals similarly have
reviewed this issue on the basis of an evidentiary record.
See, e.g., United States v. Wilkinson, 53 F.3d 757, 759-60 (6th Cir.
1995) (considering the Government’s explanation for delayed
sealing as articulated during a “lengthy evidentiary hearing”);
see also United States v. Ojeda Rios, 495 U.S. 257, 267-68 (1990)
(O’Connor, J., concurring) (“[A] ‘satisfactory explanation’ . . .
cannot merely be a reasonable excuse for the delay; it must
also reflect the actual reason for the delay” and “should be
based on the findings made and evidence presented in the
district court, rather than on a post hoc explanation given for
the first time on appeal.”). But see Jackson, 207 F.3d at 918(examining a Government’s proffered explanation that was
unsupported by evidence submitted to the district court);
United States v. Hoover, 246 F.3d 1054, 1063-65 (7th Cir. 2001)
(Rovner, J., concurring) (criticizing Jackson’s reliance on argu-
ments not included in the evidentiary record). In this case,
we rely solely on arguments supported by the factual record
developed in the district court.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 23
recordings had occurred. Id. at 264-65 (“To hold that
proof of nontampering is a substitute for a satisfactory
explanation is foreclosed by the plain words of the
sealing provision.”). We have noted that “what should
be deemed ‘satisfactory’ in the context of a statute
aimed at preventing government tampering with elec-
tronic evidence” must depend largely on “the statutory
objective.” Coney, 407 F.3d at 875. A satisfactory explana-
tion must dispel any reasonable suspicion of tampering,
and also must be both accurate and believable. Id.Whether the explanation is satisfactory also may depend
on the delay in sealing, unique pressure on the Govern-
ment to obtain a conviction due to particularly notorious
charges or defendants, the importance of the recordings
to the Government’s case and whether the Government
has established a procedure for complying with its
sealing obligations. Id.; cf. United States v. Mora, 821 F.2d
860, 867-69 (1st Cir. 1987) (listing additional factors that
the court believed contributed to satisfactoriness but
stressing “that there is no stock formula by which the
adequacy of an explanation can invariably be gauged”).
In Coney, we applied these principles and held that
“mixed-signals” between Assistant United States Attor-
neys qualified as a satisfactory explanation for a ten-day
delay in sealing. Coney, 407 F.3d at 875. In other cases,
we have concluded that a prosecutor’s mistaken belief,
caused by recording technicians’ delay, about the time
needed to secure a replacement recording device con-
stituted a satisfactory explanation, see United States v.
Jackson, 207 F.3d 910, 918 (7th Cir.), judgment vacated on
other grounds, 531 U.S. 953 (2000), as did a bureaucratically
24 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
caused delay, see United States v. Plescia, 48 F.3d 1452,
1463 (7th Cir. 1995).
We review for clear error a district court’s conclusion
that the Government’s explanation for failing to seal
immediately wiretap recordings is satisfactory. See Coney,
407 F.3d at 874.16
5.
We begin by noting that evidence was derived from the
blank-sealed recordings. Although the district court
did not specify the extent of the derivative evidence,
it stated that “it is theoretically possible that some infor-
mation that shows up in the line records or in the tran-
scripts was in the minds of agents when they went out
and did their further investigation,” Tr. at 99, Mar. 3,
2006, and the district court recognized that the blank-
sealed recordings had been included in the Govern-
ment’s probable cause affidavits to obtain additional
wiretap authorizations, id. at 104; see also supra note 10.
We also believe the factual record would support a
finding that at least some derivative evidence existed.
16
In United States v. Coney, 407 F.3d 871 (7th Cir. 2005), we
employed the “clearly erroneous” standard while conceding
that other circuits review this determination de novo. See, e.g.,
United States v. Reed, 575 F.3d 900, 913 (9th Cir. 2009);
United States v. Cline, 349 F.3d 1276, 1284 (10th Cir. 2003);
United States v. Sawyers, 963 F.2d 157, 159 (8th Cir. 1992);
United States v. Maldonado-Rivera, 922 F.2d 934, 949-50 (2d Cir.
1990). But see Wilkinson, 53 F.3d at 759-60. In this case, we
would reach the same result under either standard.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 25
Our review of the record reveals that portions of the
Government’s investigation relied on, at least in part, the
contents of the blank-sealed recordings. For example,
excerpts of probable cause affidavits show that the Gov-
ernment frequently cited the communication heard on
the blank-sealed recordings to secure subsequent wire-
tap authorizations. See, e.g., R.882-7 at 425; R.882-8 at 253,
255-56, 293; R.882-9 at 341-42. Also, Agent Konvalinka
testified that the contents of the blank-sealed recordings
were relayed to other officers to assist with the
pending investigation. Because the Government volun-
tarily suppressed the blank-sealed recordings them-
selves, the derivative evidence properly was the subject
of Mr. Martin’s motion to suppress.
As we have noted earlier, the district court, applying
the factors set forth in Coney, concluded that the deriva-
tive evidence need not be excluded because the Gov-
ernment provided a satisfactory explanation for its im-
proper sealing. We agree. The record establishes that
operator error most likely caused the blank-sealed re-
cordings to be defective. The district court placed this
error in the proper context. The error had more to do
with the mechanics of the recording process than
with the Government’s established sealing procedures.
Throughout the course of its investigation, the Govern-
ment acted consistent with its sealing obligations and
attempted in good faith to rectify its sealing error once
it was discovered. The statutory objectives were essen-
tially satisfied: The Government obtained valid judicial
authorization for its wiretap intercepts, recorded the
communications onto non-editable MO discs and sealed
original copies of the MO discs with judicial authoriza-
26 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
tion.17 The fact that a few of those tapes were defective
was unknown until the Government’s investigation
nearly was completed, and the sealing error certainly did
not interfere with the statutory objectives of ensuring
judicial oversight and non-tampering with wiretap re-
cordings. Cf. Ojeda Rios, 495 U.S. at 266-67 (concluding
that the Government’s understanding of the law of exten-
sions was erroneous but, nonetheless, did not interfere
with the statutory objectives, and, thus, qualified as
an objectively reasonable excuse for the Government’s
sealing delay).
Mr. Martin has not alleged that the Government ob-
tained a tactical advantage by sealing the blank MO discs,
that the Government procrastinated or otherwise acted
in bad faith. Indeed, the record is completely devoid of
any such evidence. Cf. United States v. Quintero, 38 F.3d
1317, 1328-30 (3d Cir. 1994) (rejecting the prosecutor’s
heavy workload as a satisfactory explanation for a
sealing delay because to do so “would be rendering
extraordinary that which is ordinary”); United States v.
Carson, 969 F.2d 1480, 1498 (3d Cir. 1992) (rejecting the
need to enhance the audibility of tapes as a satisfactory
explanation for a sealing delay because that need was
17
We have considered previously the reliability of MO discs
and their non-editable characteristic. See United States v.
McLee, 436 F.3d 751, 763-65 (7th Cir. 2006). The fact that the
Government used MO discs in this case contributes to our
conclusion that the sealing error is no cause for concern
that tampering occurred.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 27
“readily foreseeable and could just as readily become
routine”). We believe the context in which the sealing
error occurred in this case supports the Government’s
explanation.
Although the delay in sealing was significant—ap-
proximately thirty-eight days for the reconstituted re-
cordings, and never for the recordings that were lost,
see supra note 7—the Government exhibited substan-
tial compliance with the immediacy requirement by at-
tempting to address the sealing error the same day the
Government discovered that it had occurred. We agree
with the district court that the delay in sealing is
excusable under these circumstances. The charges in
this case were unexceptional, and the record does not
suggest that the defendants were particularly notorious.
The Government had no unique incentive in this case
to ignore intentionally its sealing obligations. See Coney,
407 F.3d at 875.
The Government had well-established procedures in
place to ensure compliance with its sealing obligations,
a consideration that contributes to the believability of
the Government’s explanation. Cf. id. (noting that the
Assistant United States Attorneys had established a
procedure for complying with their statutory sealing
duties). For example, although the Government was
obligated to seal the wiretap recordings only upon the
expiration of the final extension period for Messrs. Martin’s
and Simmons’s phones, see 18 U.S.C. § 2518(8)(a), the
Government sealed the MO discs upon the completion
of each thirty-day authorized period, see R.882 at 2. In
28 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
this regard, the Government followed established Depart-
ment of Justice protocols.1 8
Finally, we agree with the district court’s conclusion
that the blank-sealed recordings were of relatively minor
importance to the Government’s case. The Government’s
voluntary suppression of the recordings themselves
indicates how small a role they played in the Govern-
ment’s case against Mr. Martin. Although our review of
the probable cause affidavit excerpts reveals that the
contents of the blank-sealed recordings were used to
obtain certain wiretap extensions, they were hardly
the linchpin of these affidavits. Furthermore, the blank-
sealed recordings were a small subset of the wire-
tap recordings the Government created in this case,
most of which were sealed properly. The blank-sealed re-
cordings’ minimal importance contributes to our conclu-
sion that the Government’s explanation is satisfactory.
The Government provided a satisfactory explanation
in this case and therefore no evidence was excludable
under § 2518(8)(a). We therefore affirm the ruling of the
district court that the Government’s explanation was
satisfactory.
18
See Department of Justice’s Electronic Surveillance Manual
28-30 (June 2005), available at http://www.justice.gov/criminal/
foia/docs/elec-sur-manual.pdf (encouraging Assistant United
States Attorneys to seal wiretap recordings at the completion
of each authorized thirty-day period, irrespective of whether
an extension is obtained).
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 29
B. Sixth Amendment Challenges
1.
Messrs. Martin, Bell and Terrell contend that the
district court violated their Sixth Amendment rights
by limiting their ability to cross-examine James Rudy
Taylor (“Rudy”). Rudy was a member of the Mafia
Insanes who worked for Mr. Simmons and managed
a drug spot. Rudy was a named defendant in the indict-
ment.19 He eventually pleaded guilty and entered into
a cooperation plea agreement with the Government
whereby he agreed to testify against Messrs. Martin, Bell
and Terrell, among others, in exchange for a Government
recommendation that he receive a reduced sentence.
See R.737-38, 764.
During the Martin/Bell trial,2 0 defense counsel informed
the district court that the defense intended to cross-exam-
ine Rudy about his involvement in a pending state
murder investigation being conducted by the Police
Department in Maywood, Illinois. Defense counsel knew
that, when Rudy was arrested by federal agents for his
role in the Mafia Insanes conspiracy, the Government
had made Rudy available to the Maywood Police for
19
Rudy was charged in Count One (the conspiracy charge), and
also with two firearm counts, in violation of 18 U.S.C.
§§ 922(g)(1) and 922(k), and one count of using a telephone
to facilitate a narcotics conspiracy, in violation of 21 U.S.C.
§ 843(b).
20
As noted above, Messrs. Martin and Bell were tried
separately from Mr. Terrell.
30 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
questioning. Defense counsel believed that Rudy had
given a statement to the Maywood police concerning
his involvement in the murder of an individual named
Curtis Rios.21 Defense counsel asked the district court
to permit cross-examination of Rudy about whether
he expected to receive any benefit in the state murder
investigation in return for giving testimony in the Mar-
tin/Bell trial.
21
A defense counsel explained his understanding of the
Maywood investigation and the statement as follows,
[Rudy] gave a confession—that’s my word—a state-
ment on May 20th, 2004, when he was picked up,
basically, on another case, which was a murder, and
this case.
. . . [T]his confession that he gave, . . . is five pages in
length, handwritten, signed by him . . . .
My reading of it is that it was over a drug debt—or,
I am sorry—over some drugs; that it has to do with a
spot regarding the Mafias; that he shot this individual
in the foot, and then unloaded the gun on him; that
he went ahead, this individual, whose name is Curtis
Rios, . . . a/k/a “Cheese,” who died the next day.
[Rudy] . . . went ahead and got rid of his own gun
almost immediately thereafter and kept or held on to
Cheese’s gun for something like a month. I think that
he basically says he had nine rounds and he emptied it.
We don’t have an autopsy report. We don’t have
those kinds of things, Judge.
Trial Tr. at 1604-05, Sept. 18, 2006.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 31
The Government contended that the defense should not
be permitted to question Rudy about the pending state
murder investigation. The Government said that it
had arranged no benefit for Rudy with the Maywood
investigators in exchange for his cooperation in the
federal case. According to the Government, the federal
investigators had “talked with Maywood about working
some type of concurrent deal. They were unwilling to do
it, so we didn’t do anything with it. That’s it.” Trial Tr. at
1606, Sept. 18, 2006. The Government argued that under
Federal Rule of Evidence 609, the Maywood murder
investigation was not a proper subject for cross-examina-
tion because Rudy had not been convicted;2 2 nor was it
admissible under Rule 608(b) because the alleged offense
“has nothing to do with truth-telling.” Id. at 1607. The
Government also informed the defense and the district
court that, if asked about the Maywood murder inves-
tigation, Rudy intended to invoke his Fifth Amend-
ment right not to incriminate himself. Id. at 1605.
The district court stated, “Whether it’s a murder or a
traffic offense, if it’s an arrest, it’s not admissible unless
there is a benefit given. And I understand, from what
everybody tells me, there has not been a benefit given.”
Id. at 1606. The district court also noted that the state-
ment given to the Maywood investigators could be used
by the defense to impeach Rudy if he testified about the
22
The defense and the Government agreed that Rudy had not
been charged with the murder of Curtis Rios. See Trial Tr.
at 1606, Sept. 18, 2006.
32 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
Maywood murder on direct. Id. at 1607. However, the
district court did not know whether that contingency
would occur. It therefore permitted a voir dire of Rudy
to determine whether he intended to testify about the
Maywood murder and whether he expected to receive
any benefit in that case in exchange for his cooperation
in the federal action. Id. at 1607-08.
A voir dire was conducted. Defense counsel asked
Rudy if he had given a statement concerning the murder
of Curtis Rios. Rudy declined to answer, invoking the
Fifth Amendment. Id. at 1610. Defense counsel then
asked Rudy whether he expected to receive any benefit
from the Government in exchange for his cooperation
in the federal action. Rudy said that he expected to
receive no benefits. Id. at 1610-15.
At a sidebar, the district court told defense counsel,
If you can establish that [Rudy] has an expecta-
tion that he is getting a pass on something out in
Maywood as a result of his testimony here, I will
then allow you to ask about what it is out in
Maywood that he thinks he is getting a pass on.
But until that predicate has been laid, there is
no basis to inquire into this.
And I will just tell you, the 403 balancing goes
in favor of the government as well. I’m not—
I don’t think it’s appropriate to ask about this, as
I understand it, unrelated murder.
Id. at 1622. Defense counsel contended that the May-
wood murder was related to the drug activity charged
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 33
in the federal indictment. Id. Defense counsel wanted
to clarify whether Rudy intended to invoke the Fifth
Amendment if asked about the murder. Id. at 1623. The
district court stated, “I don’t think there is any basis,
from what I have heard right now, that we ought to
even open the door to his taking the Fifth on this.
Nor do I think there is any particular benefit to the defen-
dants in letting the jury know that there was a gang-
related murder.” Id. at 1627. The district court proposed
that defense counsel focus its voir dire questions on
whether Rudy expected any deal from the Maywood
investigators. Id.Instead, defense counsel asked Rudy about his plea
agreement with the Government and what he expected
to gain from testifying in the Martin/Bell trial. Id. at
1628. Obviously confused by defense counsel’s ques-
tions, Rudy said he expected to receive no benefits at all.
Id. The district court interjected and asked Rudy if he
understood that, in the written plea agreement with the
Government, the Government agreed to recommend a
reduced sentence for Rudy in the federal action in
return for his cooperation. Id. Rudy confirmed that that
was his understanding, and he indicated that he under-
stood that the Government’s favorable recommendation
at his sentencing hearing would depend on whether
he told the truth during his trial testimony. Id. at 1628-29.
The district court asked Rudy,
[H]ave you received any other agreement from the
government? Have they offered you anything
else? . . . Has the government offered you any
34 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
benefits in any other case? . . . Has the government
offered to do anything for you in connection
with any other charges? . . . Is it your expectation
or hope that the government is going to do some-
thing in some other case for you?
Id. at 1629-30. Rudy answered no to each of those ques-
tions. Id.Defense counsel then resumed the voir dire questioning
and asked Rudy if it was his “understanding that a mem-
ber of the U.S. Attorney’s Office called the State’s Attor-
ney’s office out in Maywood?” Id. at 1630. Rudy said no.
Id. Defense counsel asked, “Did your lawyer talk to
you at all about any efforts on the part of the U.S. Attor-
ney to work out your case, your prospective case, in
Maywood?” Id. The district court interjected and said,
“I want to tell the witness that he has permission not
to answer questions about communication with his
lawyer . . . . It doesn’t relate to the Fifth Amendment.
It’s an independent privilege.” Id. at 1630-31. Defense
counsel then asked Rudy, “Sir, do you expect to be
charged out in Maywood?” Id. at 1631. The Government
objected and complained that the question “go[es] back
to the statement again.” Id. The district court sustained
the objection and said, “I think we should bring the
jurors in. We are not going to pursue this line of ques-
tioning in the jurors’ presence unless the witness’ testi-
mony changes.” Id.Defense counsel sought to clarify the ruling and
asked, “Judge, are we precluded from any other ques-
tions about benefits when he is on the stand?” Id. at 1632.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 35
The district court stated, “No. You are welcome to
ask questions about benefits, without reference to this—.”
Id. Unsatisfied, defense counsel sought permission to
continue the voir dire and ask additional questions
about the Maywood murder, which the court allowed.
The following colloquy occurred:
[DEFENSE COUNSEL]: Are there any outstanding
offenses that you are concerned about the Judge
knowing about at this point?
[THE GOVERNMENT]: Objection, Judge. It’s forc-
ing this witness to take Five on this again.
[DEFENSE COUNSEL]: I am not asking him to
take Five. I am only asking him whether or not
he is concerned about it.
[THE GOVERNMENT]: If he says yes, the next
question is what offenses? Judge. And then we
are back to the statement.
[DEFENSE COUNSEL]: That wasn’t going to be
my next question, Counsel.
[THE GOVERNMENT]: If he says he is con-
cerned, it also is potentially admissible.
THE COURT: Look, there are ways that you can
ask questions that would elicit this. I have made
a 403 decision here that we ought not proceed
down this line. So questions that are designed
to elicit evidence concerning the episode in May-
wood, I am going to sustain those objections,
unless there is an indication that the wit-
36 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
ness has a genuine expectation of a benefit
in connection with that. And there has been
no such showing.
Id. at 1634.
Still unsatisfied, defense counsel sought permission
to continue the voir dire and ask additional ques-
tions about benefits Rudy expected to receive from his
cooperation. The district court allowed further ques-
tioning. Defense counsel asked Rudy about his plea
agreement, and Rudy confirmed that it was his under-
standing that, in return for his guilty plea and truthful
testimony in the federal action, the Government would
recommend that he receive a lower sentence. Id. at 1636.
The Government asked to clarify the record and asked
Rudy, “Sir, if you have cases out in Maywood, or poten-
tial cases, do you understand that by cooperating with
the government that those will go away?” Id. Rudy an-
swered, “No.” Id. at 1637. Defense counsel then
asked, “Do you expect the government to do anything
whatsoever to try to help you in that potential case in
Maywood?” Id. Rudy responded, “I refuse to answer,
your Honor. . . . I plead the Fifth.” Id. Defense counsel
said, “That’s the crux of this, Judge. . . . That’s it.” Id. The
district court stated, “It isn’t the crux. The witness has
testified about this matter. I don’t think we should
pursue it any longer.” Id. The voir dire ended.
The trial resumed, and Rudy testified on behalf of the
Government, describing his role in Mr. Simmons’s drug
operation and, more generally, the involvement of the
Mafia Insanes gang. See id. at 1645, 1669-71, 1679-81.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 37
Defense counsel did not cross-examine Rudy about the
Maywood murder investigation. However, defense
counsel attempted to impeach Rudy in other ways. For
example, defense counsel asked Rudy about his prior
arrests and about aliases that he had given to the
police during those arrests. See id. at 1706-08. Defense
counsel also asked Rudy about his prior drug abuse. See
id. at 1715-17. Defense counsel asked Rudy why he left
certain information out of his proffer statement given
to the DEA. See id. at 1721-22. Defense counsel also
asked Rudy about minor inconsistencies in his testi-
mony. See id. at 1763. Finally, defense counsel asked
Rudy about the plea agreement with the Government;
Rudy confirmed that, if he testified truthfully, the Gov-
ernment would dismiss certain charges pending against
him and recommend that he be sentenced at a level one-
third below the low end of his applicable Guidelines
range. See id. at 1723-26, 1732-37.
The trial continued, and other witnesses offered testi-
mony that further incriminated the defendants.
Messrs. Martin and Bell ultimately were convicted
and sentenced.
2.
Approximately a year after the Martin/Bell trial had
concluded, Mr. Terrell was tried separately, and the
Government again called Rudy as a cooperating witness.
The Government reminded the district court about the
substance of Rudy’s testimony in the Martin/Bell trial.
38 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
The Government asked for the same evidentiary ruling
barring cross-examination concerning the Maywood
murder investigation. The district court asked defense
counsel if she objected, to which she responded, “[T]he
only thing I would ask is for another voir dire so we
can talk to him and make sure he doesn’t think that
this murder that he confessed to is in any way associ-
ated with the deal he is getting from the government.”
Trial Tr. at 341, Jul. 12, 2007. The district court asked
the Government to begin, and the following voir dire
occurred:
[BY THE GOVERNMENT:]
Q. [Rudy], you were questioned by people from
the Maywood Police Department about a
shooting, weren’t you?
A. Yes, sir.
Q. You have got a cooperation deal in this case,
don’t you?
A. Yes, sir.
Q. Do you understand that cooperation deal to
have taken care of any possible situation you have
in Maywood?
A. No, sir.
Q. Do you know if the United States Attorney’s
Office or DEA or anybody reached out to
Maywood to, I guess for lack of a better term,
make that case go away?
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 39
A. No, sir.
Q. What is your cooperation agreement—what
charges do you understand your cooperation
agreement to take care of or resolve?
A. Contending this case here that I am on.
Q. Just this case?
A. Yes.
Q. Does it take care of any other possible charges?
A. No, not to my knowledge.
[THE GOVERNMENT:] I don’t have any further
questions, your Honor.
[THE COURT:] Any cross-examination . . . ?
[DEFENSE COUNSEL:] Thank you.
[BY DEFENSE COUNSEL:]
Q. Have you been charged with stuff in
Maywood?
A. I plead the Fifth on that.
Q. Do you know if any charges have been filed
against you?
A. Yes, sir—yes, ma’am.
Q. They have been filed against you?
A. The charges that I am up against now.
Q. In Maywood, out of that?
A. I plead the Fifth on that.
40 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
[DEFENSE COUNSEL:] Your Honor, I think he
waived it by answering their questions. And now
to invoke it for just this limited part—
[THE GOVERNMENT:] Judge, if I can just step in
for a moment.
[Rudy’s counsel] was here this morning. I abso-
lutely do not want to get into what [she and
Rudy] talked about . . . but it would be—I guess
I understand that this is not an area where he
is going to be willing to answer any questions on.
Maybe it makes sense to get [Rudy’s counsel]
here if this is going to be something that we need
to go into, but my sense is we have covered this
ground already. Nothing has changed since then.
[THE COURT:] Here is what I want to do. I am
going to bring the jury back right now, and what
we can do with respect to this issue is get [Rudy’s
counsel] over here, see whether that changes
anything with respect to whether or not he is
willing to answer the question about whether
charges have been filed. And if we need to reopen
his testimony for some reason, we can do that.
Id. at 342-44. Mr. Terrell’s defense counsel did not object
to that plan.
The trial resumed and Rudy testified about Mr. Terrell’s
role in the Mafia Insanes conspiracy. Defense counsel did
not cross-examine Rudy about the Maywood murder
investigation. However, defense counsel impeached
Rudy by asking him about prior inconsistent statements
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 41
that he had given to police and agents, see id. at 381-83, 386-
87, his prior charges, see id. at 387-90, and about his
plea agreement with the Government, see id. at 400-02.
Rudy’s testimony concluded, and he was excused.
Later in the trial, the district court returned to the
issue of Rudy’s testimony and summoned Rudy for an
additional voir dire. Rudy’s counsel appeared and the
following exchange occurred:
[BY THE GOVERNMENT:]
Q. I just have a few questions for the purpose of
follow-up.
[Rudy], we talked about your plea agreement
previously. Do you understand that coopera-
tion/plea agreement that you have to extinguish
or take care of any potential cases that might
arise in Maywood, Illinois?
A. No, sir.
Q. And so do you understand that you received
a benefit regarding anything that might have
happened in Maywood, Illinois from the United
States Attorney’s Officer in connection with
your plea agreement?
A. No, sir.
[THE GOVERNMENT:] No further questions,
Your Honor.
The Court: Cross-examination?
[DEFENSE COUNSEL:] Thank you.
....
42 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
[BY DEFENSE COUNSEL:]
Q. Now, the case that we’re talking about is a
case in Maywood involving a murder, correct?
A. Yes, yes, ma’am.
Q. And you were questioned about that murder
the day you were arrested on this case, right?
[RUDY’S COUNSEL:] Your Honor—
BY THE WITNESS:
A. Plead the Fifth.
[RUDY’S COUNSEL:] —I would object to this.
I think that [Rudy] has a right to exercise his
Fifth Amendment if we’re going to talk about the
statement.
THE COURT: Well, the question was: Were you
questioned about that Murder?
[DEFENSE COUNSEL:] Yeah, I’m not going to
get into—
THE COURT: Overruled. You may answer.
Were you questioned about that murder when
you were arrested back in ‘04 in this case?
BY THE WITNESS:
A. I was asked about it.
[BY DEFENSE COUNSEL:]
Q. Okay. And have you been—are there any
charges resulting from that murder against you
currently?
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 43
A. No, ma’am.
Q. Okay. So you—do you have any cases at all
pending anywhere else but the case that’s here
right now?
A. Traffic, traffic, ma’am.
Q. Okay. Now, are you aware if the federal gov-
ernment has spoken to any of the assistant state’s
attorneys out in Maywood regarding that case?
A. No, ma’am.
Q. Do you believe that you are going to be in-
dicted in that Maywood case?
A. No, ma’am.
Q. Do you believe that your cooperation in this
case, meaning your testimony against other
people in this case and in other federal cases, is
going to help you so you won’t be charged in
that Maywood case?
A. No, ma’am.
[DEFENSE COUNSEL:] Nothing further.
THE COURT: All right. Do we need to take any
further steps with this witness?
[DEFENSE COUNSEL:] I do not.
Trial Tr. at 566-69, Jul. 16, 2007. The voir dire con-
cluded, and Rudy was excused. The trial resumed, and
Mr. Terrell’s defense counsel did not raise the Rudy cross-
examination issue again. Mr. Terrell ultimately was
convicted.
44 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
Mr. Terrell filed a post-trial motion for acquittal, con-
tending that the district court’s earlier ruling circum-
scribed improperly his cross-examination of Rudy. See
R.1875. The motion stated that Mr. Terrell was pre-
vented from determining whether Rudy “may have had
[a subjective belief] regarding any promise the state
made to him regarding possible murder charges not
being brought in exchange for his testimony in this con-
spiracy trial.” Id. at 1. The motion continued, “In light
of the fact [that Rudy] was arrested on this conspiracy
charge and immediately brought to the Maywood Police
Department in reference to the murder charge, the sub-
stance of the conversation [he] had with the Maywood
police would be relevant as to the reasonableness of his
subjective belief.” Id. at 2. The motion did not allege
specifically that the district court’s ruling violated
Mr. Terrell’s constitutional rights.
Soon thereafter, Mr. Terrell substituted counsel, and
his new counsel filed an amended post-trial motion,
renewing the contention that the district court’s ruling
limiting the cross-examination of Rudy about the May-
wood murder investigation was erroneous. Specifi-
cally, Mr. Terrell contended, “By denying Mr. Terrell
the right to investigate this weakness in [Rudy’s] testi-
mony, the [district court] violated Mr. Terrell’s right
under the Confrontation Clause. U.S. Const. Amnd. V
[sic].” R.1890 at 3.
The Government opposed the motion, contending that
Mr. Terrell had waived his opportunity to challenge the
district court’s ruling. See R.2026 at 9. The Government
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 45
noted that, when it had sought the same evidentiary
ruling that the district court had made in the previous
Martin/Bell trial, Mr. Terrell’s trial counsel never ob-
jected and only requested that a voir dire occur. See id.
at 10. The Government stated that “defense counsel even
confirmed after the voir dire that the voir dire questioning
was all that counsel sought.” Id. at 11 (citing Trial Tr. at
569, Jul. 16, 2007). The Government further argued that,
in any event, Mr. Terrell’s complaint was meritless
because Rudy had denied any expectation of benefit
related to the Maywood murder investigation and that
Rudy’s alleged motive to lie was purely speculative. Id.
at 11-12. The Government also contended that “cross-
examination on this topic would [have] . . . cause[d] much
confusion and waste of time,” “precisely the sort of
confusion and waste that Federal Rule of Evidence 403
would prohibit.” Id. The Government noted that “[o]f
course, [the district court] did not even have to make
a specific Rule 403 determination during Terrell’s trial
because he waived the issue after the satisfactory voir
dire.” Id. at 12.
The district court denied the motion; it ruled that
Mr. Terrell’s right to confrontation had not been violated
by the ruling limiting cross-examination of Rudy. See
R.2130. The district court explained, “The right of con-
frontation does not require that a defendant be per-
mitted to explore any and all avenues of bias. Nor
was [Rudy’s] testimony the only (or even the most
important) evidence against the Defendant. The court
concludes that a new trial is not warranted due to this
evidentiary ruling.” Id. at 2 (internal citations omitted).
46 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
3.
Messrs. Martin, Bell and Terrell appeal the district
court’s rulings limiting their ability to cross-examine
Rudy about the Maywood murder investigation. They
contend that the Sixth Amendment guaranteed them
the right to cross-examine Rudy in front of the jury
about whether he was biased in favor of the prosecutors
because of his desire to secure their assistance with
the pending Maywood murder investigation. See Mar-
tin/Bell Appellant’s Br. 9-10; Terrell Appellant’s Br. 13.
The defendants suggest that they should have been per-
mitted to establish the following facts before the jury:
“1) that [Rudy] was suspected of murder in state
court; 2) that [Rudy] had not yet been prosecuted for
that murder; 3) that [Rudy] was first informed of that
murder investigation immediately following his arrest
by the federal government in this case; 4) that the fed-
eral authorities delivered [Rudy] to the state officials
for interrogation regarding that murder; 5) that [Rudy]
had made a statement to state authorities admitting
his involvement in the murder; and 6) that [Rudy] was
never prosecuted for the murder to which he confessed
after he began cooperating with federal authorities.”
Martin/Bell Appellant’s Br. 10. They explain that, “[b]ased
on these facts, a reasonable juror could infer that [Rudy]
was manufacturing incriminating testimony against
the defendant-appellants in order to minimize his culpa-
bility in the investigation and avoid prosecution for
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 47
the murder.” Id.; see also id. at 13-14, 17-19.2 3
Messrs. Martin, Bell and Terrell emphasize that Rudy’s
alleged bias arising from his expectation of a benefit
in the Maywood murder investigation was a “core”
concern of the Sixth Amendment because it represented
“an entire source of bias” that the jury never heard about.
Id. at 11-14. They point to Delaware v. Van Arsdall, 475 U.S.
673 (1986), and Davis v. Alaska, 415 U.S. 308 (1974), deci-
sions establishing that cross-examination regarding a
witness’s bias created by the threat of prosecution for
matters unrelated to the crime about which the witness
testifies is a core concern of the Sixth Amendment. See
Martin/Bell Appellant’s Br. 14. They contend that all
of Rudy’s testimony should have been stricken or
a mistrial declared because Rudy relied on the Fifth
Amendment when he was asked about the Maywood
murder investigation. Id. at 21-23. They believe that
Rudy’s bias was a core concern of the Sixth Amendment,
and, therefore, his Fifth Amendment right should not
have trumped the defendants’ Sixth Amendment rights.
The Government contends that the Sixth Amendment
does not guarantee an unfettered right to cross-examine
23
The defendants do not contend that the Government
violated its disclosure obligations by withholding any infor-
mation about the Maywood murder investigation. They base
their theory that Rudy was inclined to fabricate testimony
in favor of the Government entirely on the facts brought
out during the pretrial and trial proceedings and inferences
drawn from those facts.
48 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
and that the right may be limited by courts to avoid
causing prejudice, confusion or delay. Appellee’s Br. 31.
In the Government’s view, the Maywood murder investi-
gation was strictly a collateral matter because there was
no evidence showing that Rudy expected or hoped
for any benefit in the Maywood murder investigation.
Id. at 31-32. The Government notes that the defendants
had ample opportunity to and did establish Rudy’s
bias arising from his cooperation plea agreement and
that the defendants impeached Rudy by asking him
about his prior convictions and inconsistent state-
ments. Id. at 31-32, 34-35. Additionally, the Government
contends that Rudy’s invocation of his Fifth Amendment
right not to incriminate himself insulated the district
court’s ruling circumscribing questioning about the
Maywood murder investigation; the Government be-
lieves that such questioning involved a collateral matter
and therefore paled in comparison to Rudy’s important
Fifth Amendment right. Id. at 33, 36.2 4
24
Additionally, the Government renews its contention, which
it made to the district court, but which the district court did
not rule on, that Mr. Terrell “failed to object to Rudy’s testi-
mony and thus forfeited [his Sixth Amendment] claim.” Appel-
lee’s Br. 30 n.10. We disagree with the Government’s character-
ization of the record. Although Mr. Terrell’s counsel did not
specifically articulate a Sixth Amendment objection during
the trial, counsel evinced an intention to cross-examine Rudy
about the Maywood murder investigation in order to show
Rudy’s bias in favor of the Government. Furthermore,
(continued...)
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 49
4.
The Sixth Amendment to the Constitution of the
United States ensures that a defendant be given an op-
portunity for effective cross-examination. See Pennsyl-
vania v. Ritchie, 480 U.S. 39, 51-53 (1987); Delaware v. Van
Arsdall, 475 U.S. 673, 678-79 (1986). Nevertheless, trial
courts retain wide discretion to impose reasonable
limits on cross-examination in order to curb harass-
ment, prejudice, confusion of issues, threats to witness
safety and testimony that is repetitive and only
marginally relevant. Van Arsdall, 475 U.S. at 679; United
States v. Smith, 454 F.3d 707, 714 (7th Cir. 2006).
When a district court’s limitation of cross-examina-
tion directly implicates the values protected by the Con-
frontation Clause of the Sixth Amendment, we review
the district court’s ruling de novo; otherwise, we review
the district court’s limitation of cross-examination under
the more deferential abuse of discretion standard. See
Smith, 454 F.3d at 714. At issue here is the district court’s
limitation of the defendants’ cross-examination of Rudy
about his alleged pro-Government bias because of a desire
to curry favorable treatment in connection with the
Maywood murder investigation. “Bias is a term used
in the ‘common law of evidence’ to describe the rela-
24
(...continued)
Mr. Terrell’s post-trial motion amplified the constitutional
arguments in support of that issue. The objection was suffi-
ciently preserved. See United States v. Glover, 479 F.3d 511,
517 n.1 (7th Cir. 2007).
50 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
tionship between a party and a witness which might
lead the witness to slant, unconsciously or otherwise, his
testimony in favor of or against a party.” United States v.
Abel, 469 U.S. 45, 52 (1984). Cross-examination designed
to elicit witness bias directly implicates the Sixth Amend-
ment. See Abel, 469 U.S. at 49-52; Davis v. Alaska, 415
U.S. 308, 316-17 (1974); Alford v. United States, 282 U.S. 687,
691-92 (1931). Consequently, our review is de novo. If a
Sixth Amendment violation occurred, we shall set aside
the verdict unless the Government establishes that the
error was harmless beyond a reasonable doubt. See Van
Arsdall, 475 U.S. at 684; United States v. Nelson, 39 F.3d
705, 710 (7th Cir. 1994).
The exposure of a witness’s bias directly implicates
the Sixth Amendment. See Abel, 469 U.S. at 52 (“Proof of
bias is almost always relevant because the jury, as finder
of fact and weigher of credibility, has historically been
entitled to assess all evidence which might bear on the
accuracy and truth of a witness’ testimony.”). As we
noted in United States v. Recendiz, 557 F.3d 511, 530 (7th
Cir. 2009), “[a] core value [of the Sixth Amendment]
is the ability to expose a witness’s motivation for testi-
fying, his bias, or his possible incentives to lie.” Proof of
bias “is the ‘quintessentially appropriate topic for cross-
examination.’ ” United States v. Manske, 186 F.3d 770, 777
(7th Cir. 1999) (quoting Bachenski v. Malnati, 11 F.3d
1371, 1375 (7th Cir. 1993)).
We believe that the situation before us today clearly
implicates the defendants’ rights to meaningful cross-
examination with respect to witness bias. The Govern-
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 51
ment had made Rudy available to state prosecutors
for questioning about the Maywood murder. Rudy con-
ceded that he had given a statement to those prosecutors
with respect to that murder and that he never was
charged with that murder. He denied the existence of a
quid pro quo with the state or federal prosecutors. The
district court took the view that the Maywood murder
was “unrelated” to the issues on trial. See Trial Tr. at 1622,
Sept. 18, 2006 (“I’m not—I don’t think it’s appropriate
to ask about this, as I understand it, unrelated murder.”).
We respectfully take a different view from the one
taken by our colleague in the district court. Upon exam-
ination, the record makes clear that defense counsel
sufficiently articulated a link between Rudy’s involve-
ment in the pending state murder investigation and his
testimony in the federal action. The conceded facts
that Rudy was interrogated by state investigators soon
after he was arrested, that he gave a statement about
the murder of Curtis Rios and that he might have been
charged with the murder—a serious offense that carries
a severe punishment—could have been linked to
Rudy’s decision to cooperate with the Government in
this action. Cf. Lindh v. Murphy, 124 F.3d 899, 901 (7th Cir.
1997) (“[The witness] may have believed that testimony
helping the prosecution in this case, which achieved
notoriety throughout Wisconsin, would aid his [unre-
lated, pending criminal] cause, if only because it was
bound to come to the attention of the judge who
presided in the prosecution against him.”); United States
v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989) (“To
require evidence of an actual cooperation agreement
52 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
between [the Government] and [the allegedly biased
witness], as the district court in this case did, overlooks
the inherent and independent relevance of the mere fact
of a recently dismissed murder charge, a charge
which hung over the witness’ head like the sword of
Damocles . . . .” (emphasis in original)). We believe the
established facts were probative of Rudy’s possible bias.
He had been implicated in the murder, he had been
subject to the investigation, he had not been charged
and there was no indication that the investigation was
closed.
The mere fact that Rudy denied the existence of
an agreement not to prosecute him for the state murder
in return for his testimony against the defendants
does not end the matter. The defendants were entitled
to meaningful cross-examination on the question of bias
so that the jury could assess fully his testimony. As we
see it, the district court’s ruling placed counsel for the
defendants in a predicament not unlike the situation
facing counsel in Davis:
We cannot accept the Alaska Supreme Court’s
conclusion that the cross-examination that was
permitted defense counsel was adequate to de-
velop the issue of bias properly to the jury. While
counsel was permitted to ask [the witness] whether
he was biased, counsel was unable to make a
record from which to argue why [the witness]
might have been biased or otherwise lacked
that degree of impartiality expected of a witness
at trial. On the basis of the limited cross-examination
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 53
that was permitted, the jury might well have thought
that defense counsel was engaged in a speculative and
baseless line of attack on the credibility of an apparently
blameless witness[2 5 ] or, as the prosecutor’s objec-
tion put it, a ‘rehash’ of prior cross-examination.
On these facts it seems clear to us that to make
any such inquiry effective, defense counsel should
have been permitted to expose to the jury the
facts from which jurors, as the sole triers of fact
and credibility, could appropriately draw infer-
ences relating to the reliability of the witness.
Petitioner was thus denied the right of effective
cross-examination which would be constitu-
tional error of the first magnitude and no amount
of showing of want of prejudice would cure it.
415 U.S. at 318 (emphasis, other than the one accompany-
ing note 25, in original; internal quotation marks omitted).
Rudy’s alleged bias was more uncertain than the bias
alleged in Van Arsdall, and, perhaps, was even more
uncertain than the alleged bias in Davis. Nevertheless, it
was not so speculative as to make defense counsel’s
attempt to demonstrate it fall outside the guarantee of
the Sixth Amendment.
There are, of course, limits to the Sixth Amendment
guarantee of the opportunity to question a witness
about his bias. As the Supreme Court has stated:
“[T]he exposure of a witness’ motivation in tes-
tifying is a proper and important function of
25
This emphasis added.
54 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
the constitutionally protected right of cross-ex-
amination.” [Davis, 415 U.S. at 316-17]. It does not
follow, of course, that the Confrontation Clause
of the Sixth Amendment prevents a trial judge
from imposing any limits on defense counsel’s
inquiry into the potential bias of a prosecution
witness. On the contrary, trial judges retain wide
latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such
cross-examination based on concerns about,
among other things, harassment, prejudice, confu-
sion of the issues, the witness’ safety, or interroga-
tion that is repetitive or only marginally relevant.
And as we observed earlier this Term, “the Con-
frontation Clause guarantees an opportunity for
effective cross-examination, not cross-examina-
tion that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware
v. Fensterer, 474 U.S. 15, 20 (1985).
....
. . . We think that a criminal defendant states a
violation of the Confrontation Clause by showing
that he was prohibited from engaging in other-
wise appropriate cross-examination designed
to show a prototypical form of bias on the part
of the witness, and thereby “to expose to the jury
the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the
witness.” [Davis, 415 U.S. at 318].
Van Arsdall, 475 U.S. at 678-80 (citations modified; em-
phasis in original).
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 55
A bias theory may be so speculative that a court would
be entitled to preclude its admission under Rule 403.2 6
Here, however, although Rudy’s bias was denied
by the Government and Rudy himself, the defendants
articulated a reasonable argument to the contrary. The
timing, nature and status of the Maywood murder inves-
tigation was probative of bias and the defense had the
right to explore it fully and allow the jury to draw its
own conclusions.
That the defendants were permitted to examine other
matters relating to Rudy’s alleged bias, such as the
written plea agreement and Rudy’s prior convictions,
does not resolve the Sixth Amendment violation. Cf.
Davis, 415 U.S. at 318 (“We cannot accept the Alaska
Supreme Court’s conclusion that the cross-examination
that was permitted defense counsel was adequate to
develop the issue of bias properly to the jury.”). The
alleged bias arising out of the Maywood murder inves-
tigation was a separate and independent area of bias,
26
See United States v. Given, 164 F.3d 389, 392 (7th Cir. 1999)
(finding no error in a district court’s ruling precluding re-
recross-examination about a witness’s unrequited romantic
interest in the defendant because the issue was unsubstan-
tiated and had been unpursued by the defense); United
States v. Sinclair, 109 F.3d 1527, 1537-38 (10th Cir. 1997) (con-
cluding that the defendant’s theory of witness bias lacked
“factual support,” was “highly doubtful,” and, thus, fell
within the district court’s Rule 403 discretion to limit cross-
examination).
56 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
which the defendants sufficiently had distinguished
from the other areas of bias.
We must conclude that the questions that the
defendants were not permitted to ask were directly
relevant to the jury’s assessment of Rudy’s possible bias.
Accordingly, the restriction of the defendants’ cross-
examination of Rudy violated their rights under the
Sixth Amendment.
5.
We now examine whether the violations of Messrs.
Bell’s and Terrell’s Sixth Amendment confrontation
rights were harmless error. 2 7 Violations of the Sixth
Amendment’s Confrontation Clause are subject to harm-
less error review. See Van Arsdall, 475 U.S. at 684. “The
correct inquiry is whether, assuming that the damaging
potential of the cross-examination were fully realized,
a reviewing court might nonetheless say that the error
was harmless beyond a reasonable doubt.” Id. “Whether
an error is harmless beyond a reasonable doubt
27
Mr. Martin does not join in this argument. See Martin/Bell
Appellants’ Br. 24 (contending only that Rudy’s testimony was
necessary to convict Mr. Bell). Even if he had, we would find
that the wealth of evidence presented against Mr. Martin
renders the Sixth Amendment violation harmless. For example,
at least three high-ranking members of the Mafia Insanes
network, Donnell Simmons, Johnny Moore and Patrick Bray,
testified about the practice of paying Mr. Martin street taxes
collected from the Mafia Insanes controlled drug spots.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 57
depends upon factors such as the importance of the wit-
ness’s testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
corroborating or contradictory evidence and the overall
strength of the prosecution’s case.” Smith, 454 F.3d at 715.
Mr. Bell contends that Rudy’s testimony was the only
evidence the Government offered linking him to the
overarching Mafia Insanes conspiracy, as organized
primarily by Mr. Martin.2 8 Mr. Bell concedes that evidence
established that he was a ranking member of the Mafia
Insanes street gang. However, he contends that “being a
member of a gang is not the same as being a member of
a drug conspiracy.” Martin/Bell Appellants’ Br. 25. For
example, Mr. Bell argued to the jury that his payments
of sizeable amounts of cash to Mr. Martin were
personal loans among friends. Mr. Bell now contends
that Rudy’s testimony was the only evidence the Gov-
ernment offered establishing that those payments were
street taxes collected from the drug spots controlled by
the Mafia Insanes conspiracy.
The Government contends that Rudy’s testimony was
hardly necessary to establish that Mr. Bell joined the
charged conspiracy. The Government notes that the
jury heard Mr. Bell’s post-arrest statement:
28
See Martin/Bell Appellants’ Br. 24-25 (“[A]lthough [Mr. Bell]
was a drug dealer he was not a member of Mr. Martin’s organi-
zation and never had been in a conspiracy with Mr. Martin’s
organization to distribute narcotics.” (emphasis in original)).
58 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
I was affiliated with the Mafia Insane Vice Lords
and I ran one drug spot on North Avenue in
Chicago from 2000 until 2002 or 2003. I supervised
other drug workers when I was running the
drug spot on North Avenue. A Five Star Universal
Elite is a high-ranking member of the Mafia
Insane Vice Lords.
Trial Tr. at 157, Sept. 5, 2006.
Although Mr. Bell contends that this statement does
not contain an admission that he paid a street tax to the
king of the Mafia Insanes, other testimony directly ad-
dresses this point. Rudy’s general testimony about
the structure of the Mafia Insanes network, not at all
specific to Mr. Bell’s participation, was really of little or
no consequence to Mr. Bell’s conviction. The jury had
substantial evidence from which to understand the net-
work and to assess Mr. Bell’s involvement in the
charged conspiracy. The evidence overwhelmingly
showed that Mr. Bell agreed with other members of
the conspiracy to distribute narcotics. The violation of
Mr. Bell’s Sixth Amendment right to confront Rudy
was harmless beyond a reasonable doubt.
Mr. Terrell also claims that he was a drug dealer, but
not a member of the charged conspiracy. He contends
that the evidence at trial showed that he was not a
member of the Mafia Insanes gang, but rather another
gang called the Cicero Insane Vice Lords. Mr. Terrell
emphasizes that he did not pay street taxes to Mr. Martin.
He concedes that Donnell Simmons told the jury how
Mr. Terrell had supplied certain Mafia Insanes dealers
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 59
with drugs. However, Mr. Terrell contends that the
Simmons testimony could not have been believed with-
out corroboration from Rudy. He also contends that
merely supplying drugs to the Mafia Insanes gang
did not make him part of the charged conspiracy.
The Government points out that five witnesses testi-
fied about Mr. Terrell’s involvement in the charged con-
spiracy and that the jury heard wiretap recordings
of telephone calls between Mr. Terrell and other co-con-
spirators. It claims that these calls revealed that
Mr. Simmons, Mr. Terrell and another co-conspirator,
Mario Taylor, cooperated to avoid law enforcement
detection of their narcotics distribution efforts. It points
out that Christopher Clark, Mr. Terrell’s confederate,
testified that Mr. Terrell and Clark fronted large amounts
of narcotics to Mr. Simmons, Mr. Taylor and other de-
fendants charged in the conspiracy. The men used
code words in their dealings to avoid law enforcement
detection. Mr. Terrell personally knew that Mr. Simmons
was a high-ranking member of the Mafia Insanes
drug distribution network, and, thus, Mr. Terrell clearly
knew or intended that his sales would further the
overall narcotics distribution scheme.
After a thorough examination of the record, we are
convinced that Rudy’s testimony contributed little, if
any, new information for the jury’s consideration and
that its corroborative value to the Government’s
overall effort to convict Mr. Terrell was, at best, minimal.
We are convinced beyond a reasonable doubt that the
Confrontation Clause error was harmless.
60 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
C. Jury Instructions Challenge
1.
Mr. Terrell separately challenges the district court’s
refusal to give the jury a multiple conspiracies instruc-
tion. As we have noted earlier, “Mr. Terrell’s defense
theory was that although he may have dealt drugs per-
sonally, he was involved in an entirely different con-
spiracy than the conspiracy charged by the government
in Count One of the Indictment.” Terrell Appellant’s Br. 5.
The crux of Mr. Terrell’s position is that, although
he conspired to distribute narcotics with his associate,
Christopher Clark, he never conspired with the larger
conspiracy charged in the indictment. He contends that
his sales to Mr. Simmons and Mr. Taylor reveal merely
a buyer-seller relationship. During closing argument,
Mr. Terrell’s defense counsel emphasized the following
facts in his attempt to show that Mr. Terrell had joined
a conspiracy with Clark, but not with Mr. Simmons and
the other Mafia Insanes co-conspirators: (1) that Mr. Terrell
was not a member of the Mafia Insanes gang; (2) that
Mr. Terrell did not pay street taxes to the Mafia Insanes;
(3) that Mr. Terrell actually competed for customers
with the Mafia Insanes; and (4) that Mr. Terrell’s goal
was exclusively to make money for himself.
Mr. Terrell’s counsel proposed that the district court
give a multiple conspiracy jury instruction modeled on
the Sixth Circuit Pattern Jury Instructions 3.08 and 3.09.
See Trial Tr. at 959, Jul. 18, 2007. The Government ob-
jected to the instructions on the ground that no
evidence supported Mr. Terrell’s theory of multiple
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 61
conspiracies. The district court noted that the pattern
jury instructions referred to multiple defendants,
while Mr. Terrell had been tried alone. The court also
noted that Mr. Terrell had not modified the pattern jury
instructions to reflect accurately his particular theory of
multiple conspiracies. Mr. Terrell’s counsel accordingly
submitted a revised version of the proposed multiple
conspiracies instructions.2 9 Defense counsel then argued
29
Mr. Terrell’s revised proposed instruction 3.08 read as follows:
(1) The indictment charges that the defendants were all
members of one single conspiracy to commit the crime
of knowingly and intentionally to possess with intent
to distribute and to distribute controlled substances,
namely, in excess of 5 kilograms of mixtures con-
taining cocaine and in excess of 50 grams of mixtures
containing cocaine base (in the form of “crack” cocaine),
Schedule II Narcotic Drug Substances; and in excess
of 1 kilogram of mixtures containing heroin, and
marijuana, Schedule I controlled Substances, in viola-
tion of Title 21, United States Code, Section 841(a)(1).
(2) The defendant has argued that there were really
separate conspiracies, one between Jerome Terrell and
Christopher Clark to commit the crime of possession
with intent to distribute cocaine and cocaine base
and another one between the Mafia Insane Vice Lords
to commit the crime of Possession with intent to distrib-
ute cocaine, cocaine base, heroin and marijuana.
(3) To convict any one of the defendant [sic] of the
conspiracy charge, the government must convince
you beyond a reasonable doubt that the defendant
(continued...)
62 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
that the instructions were necessary because Mr. Terrell
was part of a smaller conspiracy than the one charged in
the indictment. See Trial Tr. at 972, Jul. 19, 2007 (“What
has the government shown was the agreement? Was it
this overarching agreement between [Mr. Terrell] and
the conspiracy, which is what is necessary, of course, or
was there a smaller conspiracy going on where there
was agreement perhaps with Christopher Clark and
Donnell Simmons?”).
The district court indicated confusion about whether
Mr. Terrell was arguing that he was innocent of joining
the charged conspiracy or whether he admitted to
joining the conspiracy, but only a small part of it. The
Government also reiterated its objections to the pro-
29
(...continued)
was a member of the conspiracy charged in the indict-
ment. If the government fails to prove this, then you
must find that defendant not guilty of the conspiracy
charge, even if you find that he was a member of
some other conspiracy. Proof that a defendant was a
member of some other conspiracy is not enough to
convict.
(4) But proof that defendant was a member of some
other conspiracy would not prevent you from returning
a guilty verdict, if the government also proved that
he was a member of the conspiracy charged in the
indictment.
See R.1875 at 2-3. Mr. Terrell’s proposed instruction 3.09
was materially identical to the Sixth Circuit pattern jury
instruction 3.09. Id. at 3-4.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 63
posed instructions as unsupported by the evidence. Id. at
974. A colloquy followed between the court and counsel:
THE COURT: Let me ask another question.
If Mr. Terrell conspired with Mr. Clark to
commit the crime of possession with intent to
distribute, which is what the defendant is effec-
tively conceding in paragraph 2, and Mr. Clark
was a part of the conspiracy that’s charged in the
indictment, and some of Mr. Terrell’s activities
with Mr. Clark were also part of Mr. Clark’s ac-
tivities with respect to the conspiracy as a
whole, why isn’t that sufficient to establish that
Mr. Terrell is a member of the conspiracy?
[THE GOVERNMENT]: We think it is.
THE COURT: Remember, one of the principles
that is just well recognized is that the defendant
doesn’t have to know all the members of the
conspiracy. He doesn’t have to know what all
the other ones were up to or when and how they
were doing it as long as he agreed with one or
more other members to participate in the alleged
wrongdoing. It seems to me that that’s what
the charge establishes here.
[DEFENSE COUNSEL]: They have to further the
overall cause, your Honor. They have to further
the overall cause of the conspiracy. I think that’s
the bottom line in any conspiracy trial. One, that
there was a conspiracy; and, number two, that
this person joined it with the intent of furthering
64 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
that conspiracy. So you need an agreement, and
that’s what the courts have been saying is that
you have to look at the agreement.
Was he in agreement with this entire conspiracy,
or was he in agreement with Christopher Clark?
Now, if he was in agreement with Christopher
Clark, what this instruction is telling the jury is
that, look, that’s not enough. He just has an agree-
ment with Christopher Clark. It doesn’t mean he
has an agreement with everybody else in this
conspiracy.
THE COURT: All right. Here is an instruction to
which there was no objection: “The government
need not prove that the defendant knew all of the
coconspirators or knew each detail of the conspir-
acy or that the defendant played more than a
minor role. The defendant need not have partici-
pated in all of the events of the charged con-
spiracy to be a member of that conspiracy.”
[THE GOVERNMENT]: Judge, if I can just say one
thing.
I think you have hit the nail on the head. If the
government proves that the two individuals,
Mr. Clark and Mr. Terrell, who are both men-
tioned in paragraph 1 of the indictment, agreed
with each other, I think that’s the end of the
story. I think that based on that, this instruction
is a misstatement of the law.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 65
We think we have proved more than that mini-
mum agreement between Mr. Terrell and Mr.
Clark. We think we have shown several agree-
ments. This is a very large conspiracy by num-
erous factions of the Vice Lords, and there is a
great deal of evidence in this case that there were
agreements beyond the Clark/Terrell agreement.
But the Clark/Terrell agreement does the trick as
far as the government is concerned as far as just
the existence of the conspiracy. It may not show
or it may be more doubtful whether it shows the
quantities and all the things that I think we can
prove with all the other evidence we have pre-
sented. But as far as establishing a conspiracy,
I think this instruction that’s offered, this Sixth
Circuit instruction, confuses the issue.
THE COURT: I am going to sustain the govern-
ment’s objection to the multiple conspiracies
instruction.
Id. at 975-78.
Mr. Terrell next moved for the inclusion of the
Seventh Circuit pattern buyer-seller relationship instruc-
tion, which the district court agreed was appropriate.
Id. at 980-81.
The jury convicted Mr. Terrell on the conspiracy
count, among others. In his Rule 33 post-trial motion,
Mr. Terrell contended that the district court had erred
by refusing his proposed multiple conspiracies instruc-
tions. The district court denied the motion, explaining:
66 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
Terrell effectively concedes that the evidence was
sufficient to establish that he was guilty of con-
spiring with others to distribute narcotics: The
government presented the testimony of Donnell
Simmons, the supervisor of a “drug spot” to
whom Terrell supplied quantities of powder and
crack cocaine. Christopher Clark, who served as a
courier for the drugs that Terrell supplied and
cash that Simmons returned, also testified. The
evidence included recorded conversations in
which Clark told Simmons that he was waiting
for a cocaine supply from Terrell, as well as a call
in which Simmons advised Terrell about a device
that would enable Terrell to determine if “some-
body’s wearing a wire,” and another one in
which Simmons warned Terrell about police
surveillance over Terrell’s own drug spot. Terrell
and his courier, Clark, also interacted with
Mario Taylor and with three drug sellers
working under Mario Taylor’s supervision, using
shorthand expressions in a manner that amply
reflects Terrell, Clark, and Mario Taylor’s shared
understanding of the practice of providing or
obtaining particular quantities of cocaine for
cash. At Defendant’s request, the court did give
the jury a “buyer-seller” instruction. He now
contends that, had the court also given a “multiple
conspiracies” instruction, the jury would not
have held him accountable for such a large quan-
tity of drugs. But this argument ignores the evi-
dence that Terrell himself was involved in traf-
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 67
ficking prodigiously large quantities of cocaine;
that he had a standardized way of doing busi-
ness with others over a substantial time period;
and that he maintained a financial interest in
the drug business conducted by others.
R.2130. Mr. Terrell appeals the district court’s ruling.
2.
Mr. Terrell contends that the district court denied his
right to a fair trial by refusing the proposed multiple
conspiracies instruction. He argues that the trial evi-
dence showed that “[t]he goal of the conspiracy charged
by the government in Count One was the financial better-
ment of Mr. Martin’s drug operation,” but that “[t]he goal
of [the conspiracy Mr. Terrell admitted to participating
in with Mr. Clark] was the betterment of Mr. Terrell’s
financial interests and the interests of those working with
him.” Terrell Appellant’s Br. 10; see also Terrell Reply Br. 4.
He emphasizes that his proposed instructions “did not
instruct the jury that it should acquit Mr. Terrell if he
conspired with a subset of the charged conspiracy,” and
he concedes that such an instruction would have been
erroneous as a matter of law. Terrell Reply Br. 1. He
contends that sufficient evidence supported his theory
of multiple conspiracies. See Terrell Appellant’s Br. at 10-
11 (suggesting that he was not a member of the Mafia
Insanes street gang, that he did not pay street taxes to
the leadership of that gang and that he was in a con-
spiracy that actually competed with the Mafia Insanes).
He admits that the evidence showed that he sold drugs
68 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
to members of the charged conspiracy, but maintains
that those sales were not in furtherance of the conspiracy,
but rather were typical of a buyer-seller relationship. Id.
3.
We generally review for abuse of discretion a district
court’s refusal to provide a requested jury instruction.
See United States v. Campos, 541 F.3d 735, 744 (7th Cir.
2008). However, “[w]e review the district court’s refusal
to instruct the jury on a theory of defense de novo.”
United States v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005).
“A defendant is entitled to an instruction on his theory
of defense only if ‘(1) the instruction provides a correct
statement of the law; (2) the theory of defense is sup-
ported by the evidence; (3) the theory of the defense
is not part of the government’s charge; and (4) the
failure to include the instruction would deprive the
defendant of a fair trial.’ ” Campos, 541 F.3d at 744 (quoting
United States v. Millet, 510 F.3d 668, 675 (7th Cir. 2007)).
“If the instructions treated the conspiracy issue fairly
and adequately, we will not disturb them.” United States
v. Severson, 3 F.3d 1005, 1011 (7th Cir. 1993).
To be guilty of conspiring, one must agree with
another person, with the necessary criminal intent, to
achieve a certain criminal objective. See United States v.
Thornton, 197 F.3d 241, 254 (7th Cir. 1999). “The crime of
conspiracy focuses on agreements, not groups.” United
States v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991).
Thus, the Government must prove that “the defendant
joined the agreement alleged, not the group.” Id. “The
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 69
agreement is all-important in conspiracy, for one must
look to the nature of the agreement to decide several
critical issues, such as whether the requisite mental
state is also present, whether the requisite plurality is
present, and whether there is more than one conspir-
acy. As courts have so often said, the agreement is the
essence or gist of the crime of conspiracy.” 2 Wayne R.
LaFave, Substantive Criminal Law § 12.2(a) (2d ed. 2010)
(internal quotation marks and footnotes omitted); see
also United States v. Varelli, 407 F.2d 735, 742 (7th Cir. 1969)
(“In essence, the question is what is the nature of the
agreement.”). “Even when it is clear that every defendant
is a conspirator, it may be extremely important to deter-
mine precisely what the object dimension and party
dimension of the agreement are, for that in turn will
decide the critical question of whether more than one
conspiracy exists.” Lafave, Substantive Criminal Law,
supra, § 12.3(b). “Multiple conspiracies exist when there
are separate agreements to effectuate distinct purposes.”
Thornton, 197 F.3d at 254.
Here, Mr. Terrell was tried alone.3 0 The jury instructions
30
Determining whether multiple conspiracies existed is par-
ticularly important when several defendants are tried together.
If the defendants joined multiple and distinct conspiracies,
trying the defendants jointly risks allowing the jury to trans-
fer “guilt from one to another across the line separating
[the] conspiracies, subconsciously or otherwise.” Kotteakos v.
United States, 328 U.S. 750, 774 (1946). In such cases, a multiple
conspiracies instruction may be warranted. Id. at 769-72; see
also United States v. Schmucker-Bula, 609 F.2d 399, 403 (7th Cir.
(continued...)
70 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
issued by the district court explained adequately that
Mr. Terrell should be acquitted if the evidence failed
30
(...continued)
1980) (“It is true, as the defendant argues, that courts should
be vigilant against the transfer of guilt ‘from one to another
across the line separating conspiracies . . . .’ Kotteakos v.
United States, 328 U.S. 750, 774 (1946). It is also true, how-
ever, that the existence of multiple conspiracies is a ques-
tion of fact, and the role of the court is generally limited to in-
structing the jury when the possibility of a variance between
the evidence and the conspiracy charged in the indictment
arises. See United States v. Papia, 560 F.2d 827, 838 (7th Cir.
1977); United States v. Varelli, 407 F.2d 735, 746 (7th Cir. 1969).
The trial court properly instructed the jury that proof of sev-
eral conspiracies is insufficient to permit conviction unless
one of the conspiracies proved is the one charged in the in-
dictment.” (parallel citations omitted)).
This problem usually is not present when a defendant is
tried alone. In such a case, a multiple conspiracies instruction
well may be unnecessary. See United States v. Anguiano, 873
F.2d 1314, 1318 (9th Cir. 1989) (“[A] multiple conspiracies
instruction is generally designed for trials involving multiple
defendants engaged in multiple conspiracies, not for trials of
lone defendants who are worried that the jury may not
agree upon the same set of facts.”); see also United States v.
Richardson, 532 F.3d 1279, 1290-91 (11th Cir. 2008); United States
v. Corey, 566 F.2d 429, 431 n.3 (2d Cir. 1977). Therefore, as long
as the district court instructs the jury on the nature of the
conspiracy charge, emphasizing that the Government must
prove that the defendant intentionally agreed to advance the
aim of the conspiracy, there is usually no need for a
multiple conspiracies instruction when a defendant is tried
alone.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 71
to establish the existence of the charged conspiracy or
that Mr. Terrell did not agree to join it. Furthermore, the
evidence in this case did not warrant the issuance of
a multiple conspiracies instruction. A multiple con-
spiracies instruction is unnecessary when the evidence
reveals the existence of only one conspiracy. See United
States v. Longstreet, 567 F.3d 911, 921 (7th Cir. 2009);
Jenkins, 419 F.3d at 618; see also Thornton, 197 F.3d at 255;
United States v. Mims, 92 F.3d 461, 467-68 (7th Cir.), reh’g
granted on other grounds 101 F.3d 494 (7th Cir. 1996);
United States v. Shorter, 54 F.3d 1248, 1256 (7th Cir. 1995).
The nonexistence of multiple conspiracies may be so
obvious that the jury need not be instructed on that
issue. See Severson, 3 F.3d at 1010.
Here, upon examination of the record, we believe
the evidence adduced during Mr. Terrell’s trial re-
vealed only one, interdependent conspiracy to distribute
narcotics. We emphasize that the purpose of the con-
spiracy charged in Count One of the indictment
was simply to distribute narcotics. Mr. Terrell fails to
articulate a different or distinct purpose for the con-
spiracy he admits to have joined with Christopher
Clark. Mr. Terrell’s characterization of an alternative
conspiracy, consisting of an agreement with Clark to
further Mr. Terrell’s financial interests, as opposed to
the financial interests of the Mafia Insanes gang, is
nothing more than a description of a subset of the con-
spiracy charged in the indictment. “One can join a con-
spiracy to make money, even though others join it for
different reasons. The question is whether the parties
have agreed to advance a common goal.” United States
72 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
v. Duff, 76 F.3d 122, 127 (7th Cir. 1996).3 1 Although
we have trouble conceiving of a reason motivating the
co-conspirators in this case to join the conspiracy, other
than to advance their individual financial interests,
that issue is beside the point; each co-conspirator’s finan-
cial motivation for joining the conspiracy is essentially
irrelevant.
What is clear, and of paramount relevance, is that
each co-conspirator agreed to advance the conspiracy’s
goal of distributing narcotics. The evidence revealed that
Mr. Terrell fronted wholesale quantities of narcotics to
the members of the conspiracy and took steps, such as
cooperating with Mr. Simmons to avoid police detec-
tion, to further the conspiracy’s objectives. Because
Mr. Terrell and Christopher Clark were both charged
as co-conspirators in Count One of the indictment,
Mr. Terrell’s concession that he conspired to distribute
narcotics with Clark, along with the evidence that
Mr. Terrell fronted narcotics to other co-conspirators
with knowledge that the narcotics would be distributed,
31
The facts that Mr. Terrell did not pay street taxes to and was
not a member of the Mafia Insanes does not establish the
existence of multiple conspiracies. The crucial fact is that all
the co-conspirators agreed to distribute narcotics in the west
side of Chicago during the relevant time period.
Of course, isolated instances of cooperation between com-
peting drug distribution networks may not support the ex-
istence of one, overarching conspiracy. Cf. United States v.
Townsend, 924 F.2d 1385, 1393 (7th Cir. 1991) (discussing
United States v. Fiorito, 499 F.2d 106, 109 (7th Cir. 1974)).
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 73
essentially precludes a theory of multiple conspiracies.
The Government “may elect to proceed on a subset
of the allegations in the indictment, proving a conspiracy
smaller than the one alleged, so long as the subset is
also illegal.” United States v. Wilson, 134 F.3d 855, 865
(7th Cir. 1998) (internal quotation marks and citation
omitted); see also Campos, 541 F.3d at 745; United States
v. Payne, 226 F.3d 792, 795 (7th Cir. 2000). Although
there was some evidence that Mr. Terrell competed
with his co-conspirators for customers from time-to-
time, there was other evidence that he frequently co-
operated with members of the conspiracy and agreed to
further the conspiracy’s objective. The jury rejected
Mr. Terrell’s buyer-seller theory and based its verdict
on the substantial evidence showing that Mr. Terrell
agreed to join the conspiracy to distribute narcotics. Cf.
United States v. Sir Kue Chin, 534 F.2d 1032, 1035 (2d Cir.
1976) (“The essence of the crime is an agreement, and
there is no more reason to say that a supplier of narcotics
is necessarily engaged in two conspiracies because he
has two sources of supply than there would be because
he had two purchasers.”).
Finally, we note that Mr. Terrell’s buyer-seller theory
was valid and an essential component of his defense.
That theory depended on a characterization of the evi-
dence showing that Mr. Terrell never agreed to join
the conspiracy in the first place. The district court’s
instructions on that subject were satisfactory.
Mr. Terrell was not entitled to the multiple conspiracies
instruction because the theory of defense was not sup-
74 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
ported by the evidence. The theory of the defense was
essentially a subset of the Government’s charge and the
failure to include the instruction did not deprive
Mr. Terrell of a fair trial. The instruction given by the
district court put the case before the jury in a straight-
forward and comprehensive manner.
D.
Sentencing Enhancement Challenge
Mr. Bell also challenges the inclusion of the U.S.S.G.
§ 2D1.1(b)(1) enhancement in the district court’s guide-
lines calculation. That enhancement applies when the
defendant possessed a dangerous weapon during the
course of the commission of the drug offense.
The government bears the burden of first proving
by a preponderance of the evidence that the de-
fendant possessed the weapon. The defendant
need not have actual possession of the weapon;
constructive possession is sufficient. If the gov-
ernment carries its burden, then the defendant
must show that it was clearly improbable that
the weapon was connected to the drug offense.
United States v. Are, 590 F.3d 499, 526 (7th Cir. 2009)
(internal quotation marks and citations omitted). Co-con-
spirators’ foreseeable possession of dangerous weap-
ons may be attributable to a defendant so as to trigger
application of the enhancement. See United States v. Emer-
son, 501 F.3d 804, 815 (7th Cir. 2007). We review factual
findings under U.S.S.G. § 2D1.1(b)(1) for clear error. See
Are, 590 F.3d at 526.
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 75
During Mr. Bell’s sentencing hearing, the Government
argued for application of the enhancement because fire-
arms ammunition and drugs were recovered from
Mr. Bell’s residence at the time of his arrest and because,
in telephone calls between Mr. Bell and co-conspirators
recorded during the course of the conspiracy, Mr. Bell
asked to borrow a “thumper” for protection and bragged
about carrying a “thumper” to avoid capture by the
police. See R.1902, Ex. A. A co-conspirator testified that
a “thumper” referred to a pistol. See Trial Tr. at 475-76,
Sept. 6, 2006. The district court ruled that the Govern-
ment had met its burden because the circumstantial
evidence supported a finding that Mr. Bell had pos-
sessed a dangerous weapon during the course of the
conspiracy. The district court also noted that countless
pieces of evidence adduced at trial supported the infer-
ence that co-conspirators’ possession of dangerous weap-
ons was foreseeable. The district court discounted co-
conspirator testimony to the effect that he never gave
Mr. Bell a firearm.
Mr. Bell contends that the district court’s factual
finding was erroneous. He submits that the district
court should have believed the co-conspirator’s testi-
mony and that the recorded telephone calls were too
ambiguous to have supported the finding. We disagree.
The finding clearly was supported by the evidence. The
district court weighed appropriately the evidence and
explained sufficiently its finding. The Government met
its burden and the enhancement was applied correctly
in Mr. Bell’s guidelines calculation.
76 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
E.
Other Sentencing Challenges
Messrs. Martin, Bell, Taylor and Braboy raise a host
of additional challenges to their sentences. Messrs. Taylor
and Braboy contend that the district court erred by
failing to consider and articulate its consideration of
certain 18 U.S.C. § 3553(a) factors when it imposed their
sentences. We review sentences for reasonableness
under an abuse-of-discretion standard. See Gall v. United
States, 552 U.S. 38, 51 (2007). Sentences within an appro-
priately calculated guidelines range are presumptively
reasonable. Id.; see also United States v. Wallace, 531 F.3d
504, 507 (7th Cir. 2008). When considering the 18 U.S.C.
§ 3553(a) factors, the district court need not “write
a comprehensive essay applying the full panoply of
penological theories and considerations, which is to
say everything invoked or evoked by section 3553(a).”
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); see
also United States v. Jumah, 599 F.3d 799, 813-14 (7th Cir.
2010); United States v. Laufle, 433 F.3d 981, 987 (7th Cir.
2006).
Messrs. Taylor and Braboy contend that the district
court failed to take into account their history and charac-
teristics, specifically their troubled childhoods and their
ages at the time of sentencing. However, during the
sentencing hearing, the district court stated that it
had considered Mr. Taylor’s “entire record” and noted
that Mr. Taylor had “made a significant change in [his]
life,” reflecting that the district court had compared
Mr. Taylor’s lifestyle and personal characteristics exhib-
Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 77
ited before his arrest with his post-arrest conduct. Tr.
at 26, Dec. 10, 2007. During Mr. Braboy’s sentencing
hearing, the district court referenced several specific
arguments asserted in his sentencing memorandum,
including Mr. Braboy’s newfound maturity, and stated
that “I know that given the family background, . . . the
temptation to just get involved in criminal conduct is
enormous.” Tr. at 41-42, Dec. 4, 2007. These statements
reveal that the district court gave due consideration to
the § 3553(a) factors raised by the defendants. The de-
fendants concede that the district court appropriately
calculated their guidelines ranges. The within-guidelines
sentences that the district court imposed were reasonable.
Next, Messrs. Martin and Bell contend that the district
court erred by not considering whether the sentencing
disparity between crack and powder cocaine yields a
sentence greater than necessary to achieve 18 U.S.C.
§ 3553(a)’s purpose. Kimbrough v. United States, 552 U.S.
85 (2007). The Government agrees that a limited remand
to consider this issue is appropriate. Accordingly, we
order a limited remand so that the district court may
follow the procedures described in United States v.
Taylor, 520 F.3d 746, 748-49 (7th Cir. 2008), to address
the effect of both the 2007 Amendment to U.S.S.G. § 2D1.1
and Kimbrough v. United States, 552 U.S. 85 (2007), on
Messrs. Martin’s and Bell’s sentences. After resolving
any motion for a reduced sentence under 18 U.S.C.
§ 3582(c)(2) based on the Amendment, the court should
indicate whether it is inclined to reduce further
78 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265
Messrs. Martin’s or Bell’s sentences under Kimbrough.3 2
Additionally, although Messrs. Braboy and Taylor did not
raise the Kimbrough issue in their appellate arguments,
we note that they were sentenced prior to the issuance
of Kimbrough, and, thus, are entitled to a remand pursuant
to the procedures we described in United States v.
Taylor, 520 F.3d 746, 748-49 (7th Cir. 2008). Mr. Terrell
was sentenced after the enactment of the 2007 Amend-
ment and Kimbrough, and, thus, he could have raised
those issues before the district court if the court had not
addressed adequately those issues. Accordingly, the
record does not support a remand for resentencing for
Mr. Terrell.
Conclusion
For the foregoing reasons, we affirm the district court’s
pretrial and trial rulings. We order limited remands for
reconsideration of Messrs. Martin’s, Bell’s, Braboy’s and
Taylor’s sentences.
A FFIRMED in part;
R EMANDED in part
32
We already have severed Mr. Simmons’s appeal, No. 07-2039
and Jermaine Banks’s appeal, No. 07-1444, and remanded
with identical instructions on this issue.
8-24-10