United States v. Kyle Pagan , 865 F.3d 566 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 15-2933, 16-1496 & 16-3149
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DESHAUN BROWN, also known as
SQUEAK, KYLE PAGAN and GREGORY
HAWTHORNE,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 772 — Elaine E. Bucklo, Judge.
ARGUED MAY 18, 2017 — DECIDED JULY 28, 2017
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
BAUER, Circuit Judge. On September 26, 2013, Deshaun
Brown, Gregory Hawthorne, and Kyle Pagan, along with 21
other defendants, were indicted on federal charges of racke-
teering conspiracy, narcotics offenses, and firearms offenses.
2 Nos. 15-2933, 16-1496 & 16-3149
These charges stemmed from the defendants’ involvement in
an open-air drug market, known as the Keystone Drug Market,
located on Keystone Avenue near the intersection of Thomas
Street, in Chicago, Illinois. On November 13, 2014, after a
seven-day trial, a jury convicted Brown, Hawthorne, and
Pagan on conspiracy and narcotics-trafficking charges. All
three appealed, each raising different challenges.
I. BACKGROUND
The street gang known as the Imperial Insane Vice Lords,
or the “Double-Is,” controlled the Keystone Drug Market.
Beginning around 1996, Joseph Faulkner, a high-ranking
member of the Double-Is, ran the Keystone Drug Market’s
operations. Pagan and Hawthorne were also members of the
Double-Is, and began selling narcotics for Faulkner in 2000 and
2005, respectively. Brown was a member of a different street
gang, known as the Mafia Insane Vice Lords. Despite his
different affiliation, Brown purchased narcotics from Faulkner
and other members of the Double-Is and sold them on Key-
stone Avenue beginning in 2007.
In 2011, after Faulkner was arrested, Nathaniel Hoskins,
another member of the Double-Is, took over control of the
Keystone Drug Market, which he continued to manage until
his arrest in 2013. Hawthorne and Pagan continued to sell
narcotics on Keystone Avenue under Hoskins. When Hoskins
took over, Brown was selling crack cocaine on Keystone
Avenue, but was not directly affiliated with the Double-Is’
drug trade. Once he took control, however, Hoskins began
requiring Brown to pay a tax, either in money or drugs, in
Nos. 15-2933, 16-1496 & 16-3149 3
exchange for allowing Brown to sell drugs on Keystone
Avenue.
Sometime in late 2010, the Chicago Police Department and
the Drug Enforcement Agency began investigating the Dou-
ble-Is and the Keystone Drug Market. That investigation
included various wiretaps and controlled purchases of nar-
cotics, and led to the indictment of 24 individuals on Septem-
ber 26, 2013.
The indictment charged Brown with one count of conspir-
acy to possess with intent to distribute, and to distribute,
heroin, cocaine base, and marijuana, in violation of 21 U.S.C.
§ 846; and two counts of distributing cocaine base, in violation
of 21 U.S.C. § 841(a)(1). The indictment charged Hawthorne
with the same count of conspiracy; one count of possessing
with intent to distribute heroin, in violation of 21 U.S.C.
§ 841(a)(1); and one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). It charged Pagan
with the same conspiracy count and four counts of distributing
heroin in violation of 21 U.S.C. § 841(a)(1).
Brown pleaded guilty to the distribution charges. Brown,
Hawthorne, and Pagan proceeded to trial on the remaining
charges. On November 13, 2014, after a seven-day trial, the jury
convicted Hawthorne and Pagan of their possession and
distribution charges, and convicted all three of the conspiracy
charge. The jury did not reach a verdict on Hawthorne’s
firearm charge. All three filed timely notices of appeal.
4 Nos. 15-2933, 16-1496 & 16-3149
II. DISCUSSION
Brown appeals his conviction, arguing that there was
insufficient evidence to sustain the verdict on the conspiracy
charge. He also argues that the district court erred in denying
two of his requested jury instructions. Hawthorne appeals the
district court’s denial of his motion for a new trial based on the
government’s failure to timely disclose information regarding
its witness, Charles Vaughn. Pagan appeals his sentence,
arguing that the court miscalculated his criminal history level.
We address each argument in turn.
A. Sufficiency of the Evidence as to Brown’s Conspiracy
Conviction
Brown contends that the government failed to produce
sufficient evidence at trial to prove beyond a reasonable doubt
that he intentionally joined the drug distribution conspiracy
operating at the Keystone Drug Market between 1996 and
2013. “When reviewing a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the prosecution and ask whether any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Moshiri, 858 F.3d 1077, 1081
(7th Cir. 2017) (citation and quotation marks omitted). We do
not make credibility determinations or reweigh the evidence,
and “[i]f there is a reasonable basis in the record for the verdict,
it must stand.” Id. (citations omitted). The defendant’s burden
on a sufficiency challenge is “nearly insurmountable.” United
States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009) (citation
omitted).
Nos. 15-2933, 16-1496 & 16-3149 5
“A conspiracy exists when two or more people agree to
commit an unlawful act, and the defendant knowingly and
intentionally joins that agreement.” Id. There must be “sub-
stantial evidence that the defendant knew of the illegal
objective of the conspiracy and agreed to participate.” Id. at
918–19 (citation and quotation marks omitted).
We can quickly dispense with Brown’s initial and cursory
argument that, because he was not a member of the Double-Is,
he could not have joined in their narcotics distribution conspir-
acy. All that is required for a conspiracy conviction is proof
that the defendant joined in an agreement to commit an
unlawful act, not that he joined in a particular group. Id. at 919.
Thus, Brown’s membership in a different street gang is of no
consequence.
Brown does not dispute that he sold drugs on Keystone
Avenue, nor does he challenge the existence of the charged
conspiracy. His main argument, however, is that the govern-
ment’s evidence proved only that Hoskins forced him to pay
a “street tax” in order to sell those drugs, which, he argues, is
insufficient to prove his intentional participation in the
conspiracy. He contends that his relationship with Hoskins was
akin to the type of buyer-seller relationship that we have found
insufficient to establish a conspiracy in other cases. See, e.g.,
United States v. Brown, 726 F.3d 993, 1001 (7th Cir. 2013)
(“People in a buyer-seller relationship have not agreed to
advance further distribution of drugs; people in conspiracies
have.”).
That argument is unavailing, however, because the govern-
ment’s evidence demonstrated a relationship of mutual
6 Nos. 15-2933, 16-1496 & 16-3149
financial interest between Brown and Hoskins, unlike a simple
buyer-seller relationship. See United States v. Contreras, 249 F.3d
595, 600 (7th Cir. 2001) (describing a buyer-seller relationship
as one “between dealers who have no interest in the success of
each other’s enterprise”). There was ample evidence from
which the jury could have determined that Brown and Hoskins
“agreed to advance further distribution of drugs,” and thus,
joined in a conspiracy. Brown, 726 F.3d at 1001.
Brown and Hoskins made an agreement whereby Hoskins
would allow Brown to continue to sell crack cocaine on
Keystone Avenue, and Brown would pay Hoskins with either
drugs or cash. Brown does not dispute that he agreed to pay
Hoskins, nor that he continued to sell narcotics after making
the agreement. We have previously held that an agreement to
pay rent for the right to sell drugs in a particular area is
sufficient to establish a drug conspiracy. Longstreet, 567 F.3d at
919–20. This is true whether the participants in the agreement
are competitors or acting in concert to sell the same drugs. Id.
We see no distinction in the agreement here. Brown knowingly
agreed to pay Hoskins for the ability to distribute drugs on
Keystone Avenue. That agreement demonstrates something
more than a simple buyer-seller relationship and, thus,
provided a sufficient basis for the jury to convict Brown of
conspiracy.
In addition to that agreement, however, the government
produced other evidence on which the jury could have relied
to reach its verdict. Darrell Pitts, a member of the Double-Is
and a cooperating witness, testified that Brown told him that
he worked for Faulkner selling heroin at the Keystone Drug
Market. Pitts also testified that Pagan told him that Brown and
Nos. 15-2933, 16-1496 & 16-3149 7
others were “paid off every pack that gets sold” at the Key-
stone Drug Market. Pitts’ testimony was consistent with the
statements Brown made to the officer who arrested him. That
officer testified that Brown said that he sold heroin that he
received from Faulkner for approximately six months in 2007.
Brown also told the officer that, in 2009, he began selling crack
cocaine that he received from Charles Vaughn, another
member of the Double-Is and a cooperating witness. Brown
stated that he always sold these drugs on Keystone Avenue.
Finally, Chicago Police officers testified that they twice
purchased crack cocaine from Brown while working under-
cover on Keystone Avenue in June 2011. On both occasions,
Brown was working in tandem with one other person to make
the exchanges with the officers. All of this evidence, taken
together and viewed in the light most favorable to the govern-
ment, provided a sufficient basis for the jury to conclude that
Brown knowingly participated in the charged narcotics
conspiracy.
B. Brown’s Proposed Jury Instructions
Brown also challenges the district court’s refusal to give
two proposed jury instructions. The first related to the proof
required for a conspiracy conviction. The second sought to
define “street tax,” the term Brown used for his arrangement
with Hoskins.
A defendant is entitled to an instruction on his theory of
defense if: (1) the instruction is a correct statement of the law;
(2) the evidence supports the theory of defense; (3) the defense
is not part of the government’s charge; and (4) the failure to
give the instruction would deprive the defendant of a fair trial.
8 Nos. 15-2933, 16-1496 & 16-3149
United States v. Hall, 608 F.3d 340, 342 (7th Cir. 2010). “Simi-
larly, a district court may refuse a proposed jury instruction if
the other instructions convey the same message as the pro-
posed instruction.” United States v. Sinclair, 74 F.3d 753, 761
(7th Cir. 1993). We review de novo the court’s refusal to give a
proffered instruction. Hall, 608 F.3d at 343.
At the close of evidence, the district court gave Seventh
Circuit Pattern Jury Instruction 5.10 on membership in a
conspiracy. Brown requested that the court give the following
additional instruction:
To prove that a defendant was a member of a
conspiracy, the Government must demonstrate
a participatory link between the conspiracy and
the defendant. Proof of the participatory link
requires substantial evidence that the defendant
both knew of the conspiracy and that he in-
tended to join and associate himself with the
conspiracy’s criminal design and purpose. This
requires proof the defendant did more than
merely know the conspiracy existed, approved
of the conspiracy, associated himself with the
conspiracy or was present during some conspir-
atorial activities. In determining whether each
defendant became a member of the conspiracy,
you may consider only the acts and statements
of that particular defendant.
The district court refused to give this instruction, finding
that it was duplicative of the Pattern Instruction. We agree.
The only material difference between Brown’s instruction and
Nos. 15-2933, 16-1496 & 16-3149 9
the Pattern Instruction is the use of the phrase “participatory
link.” The Pattern Instruction adequately conveys the same
message, stating that the defendant must have “been aware of
the illegal goal of the conspiracy and knowingly joined the
conspiracy.” Pattern Criminal Jury Instructions of the Seventh
Circuit (2012 ed.) § 5.10; see also United States v. Campbell, 985
F.2d 341, 344–45 (7th Cir. 1993) (explaining that a “participa-
tory link” for purposes of a conspiracy conviction requires
evidence that “the defendant knew of the conspiracy and that
he intended to join and associate himself with its criminal
design and purpose”). The Pattern Instruction accurately stated
the government’s burden of proof on the conspiracy charge,
and Brown’s instruction would have been at least repetitive, if
not also confusing to the jury.
Brown also requested that the court give the following
instruction:
A “street tax” is a slang phrase describing extor-
tion payments made by victims. A victim of
extortion is any person or business forced to
make payments under the threat of physical
injury, violence or other illegal conduct, to allow
them to remain in business. It does not matter
that the business the person is engaged in is
considered a lawful or unlawful enterprise.
Individuals involved in the unlawful business of
prostitution, bookmaking, illegal gambling
and/or auto theft, have been recognized victims
of extortion from organized crime gangs.
10 Nos. 15-2933, 16-1496 & 16-3149
The court rejected this instruction, noting that Brown had
not produced any evidence to support his reliance on a defense
of duress or coercion. We agree. Brown did not argue, and
there was no evidence to indicate, that he was forced to sell
drugs for Hoskins under the threat of immediate violence.
Moreover, his reliance on a defense of duress or coercion
would have failed as a matter of law because he was free to
reject Hoskins’ proposal and simply stop selling drugs on
Keystone Avenue. See United States v. McGee, 408 F.3d 966, 983
(7th Cir. 2005) (citing United States v. Bailey, 444 U.S. 394, 410
(1980)). The instruction is also an incorrect statement of the law
to the extent it suggests that the jury could not convict Brown
of conspiracy if it found his payments to Hoskins met the
definition of a “street tax.” As we demonstrated above, the jury
was entitled to find that Brown’s agreement to pay Hoskins in
exchange for the ability to sell drugs was evidence of his
participation in the charged conspiracy. See Longstreet, 567 F.3d
at 919–20.
The proposed instruction is also problematic because it
does not provide any guidance for the jury on the potential
effect of finding that the arrangement between Hoskins and
Brown met this particular definition of “street tax.” It simply
provides a definition of the term in the context of extortion
payments. Accordingly, the court did not err in rejecting
Brown’s “street tax” instruction.
C. Hawthorne’s Motion for a New Trial on Brady
Grounds
After the trial concluded, the government sent a letter to all
defendants informing them that the prosecutors who tried the
Nos. 15-2933, 16-1496 & 16-3149 11
case had just learned of an interview that a cooperating witness
in a different case gave to an Assistant United States Attorney
in 2009. In that interview, the witness said that he knew that
Charles Vaughn had participated in a murder in 2005 and was
involved in another gang-related shooting sometime after that.
After learning this information, Hawthorne filed a motion for
a new trial, arguing that the late disclosure entitled him to a
new trial under Brady v. Maryland, 373 U.S. 83 (1963). The
district court denied the motion, finding that the new informa-
tion did not create a reasonable probability of a different result
in Hawthorne’s trial. Hawthorne’s only argument on appeal is
that the district court erred in denying his motion.
A Brady violation exists if the defendant establishes that the
government suppressed evidence, which was favorable to the
defendant and material to an issue at trial. United States v.
Stallworth, 656 F.3d 721, 731 (7th Cir. 2011). “Such evidence is
material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Youngblood v. West
Virginia, 547 U.S. 867, 870 (2006) (citation and quotation marks
omitted). “We review the denial of a motion for a new trial
based upon an alleged Brady violation for an abuse of discre-
tion.” Stallworth, 656 F.3d at 731.
Although the prosecutors assigned to this trial did not
know of the interview before trial, the government concedes
that the evidence was suppressed because it was in the govern-
ment’s collective knowledge. The district court did not decide
whether the evidence was favorable to Hawthorne and instead
focused its analysis on materiality. Because we agree with the
12 Nos. 15-2933, 16-1496 & 16-3149
district court’s conclusion on that issue, we can assume,
without deciding, that evidence of a government witness’s
involvement in a prior murder would have been favorable to
Hawthorne for impeachment purposes.
As an initial matter, Hawthorne argues that the district
court applied the wrong standard in its Brady analysis. He
contends that the court incorrectly framed the inquiry by
asking whether the undisclosed evidence would have changed
the result of the trial, rather than whether there was a reason-
able probability of a different result. A review of the record,
however, defeats that contention. The court ruled orally on
Hawthorne’s motion and before providing its analysis, stated
the following: “The standard is, as you people noted, would it
create a reasonable probability. It would have had to have
created a reasonable probability that the result of the proceed-
ing would have been different. … Another way of stating it,
does it undermine confidence in the outcome of the trial?” That
is an accurate statement of the relevant inquiry in this case. See
Youngblood, 547 U.S. at 870.
Hawthorne argues, as he did in the district court, that the
new evidence was material because it would have caused the
jury to question Vaughn’s credibility and motives. It is true
that Brady requires the government to disclose impeachment
evidence, Youngblood, 547 U.S. at 869, but, we have also
recognized that, “ordinarily, newly discovered impeachment
evidence will not warrant a new trial under Brady” because it
will not be considered material, United States v. Salem, 578 F.3d
682, 688 (7th Cir. 2009). However, new impeachment evidence
Nos. 15-2933, 16-1496 & 16-3149 13
may be material where the government’s case rests entirely on
one witness’s testimony and credibility. Id.
That is simply not the case here. Vaughn provided no
testimony regarding Hawthorne’s possession with intent to
distribute charge, which was specific to events that took place
on March 6, 2013. As to Hawthorne’s involvement in the
conspiracy, Vaughn’s testimony was minimal. He testified that
Faulkner was running the Keystone Drug Market beginning in
1995 or 1996, but also stated that he did not see Hawthorne
around the Market at that time. Vaughn testified that Haw-
thorne became a member of the Double-Is in later years, but
also stated that he never personally saw Hawthorne make a
drug sale on Keystone Avenue. Finally, he testified that
Hawthorne told him about one particular crack cocaine
transaction that Hawthorne made with another member of the
Double-Is.
Based on the other evidence presented against Hawthorne,
it is clear that the government did not rest its case on Vaughn’s
testimony, such that the new impeachment evidence could be
considered material. Darrell Pitts testified that Pagan told him
that Pagan and Hawthorne sold heroin for Faulkner while
Faulkner was running the Keystone Drug Market. Pitts also
testified that he saw Hawthorne making hand-to-hand drugs
sales on Keystone on at least five occasions around 2011. A
Chicago Police Officer testified that, while undercover in 2008,
he purchased heroin from Hawthorne near the intersection of
Thomas and Keystone. The Chicago Police detective who
interviewed Hawthorne after his arrest in 2013 testified that
Hawthorne said that he was a member of the Double-Is and
that he began selling heroin for Faulkner in 2000. Hawthorne
14 Nos. 15-2933, 16-1496 & 16-3149
also told the officer that Faulkner’s operation was selling
between ten and twenty “jabs” of heroin per day. In light of
that evidence, there is no reasonable probability that the
outcome of Hawthorne’s trial would differ, even if the jury
found that Vaughn lacked credibility. Therefore, the court did
not abuse its discretion by finding that the undisclosed
evidence was not material.
D. Pagan’s Sentence
Pagan’s only argument on appeal is that the district court
miscalculated his criminal history score and, therefore, applied
the wrong Guidelines range. The Probation Office’s pre-
sentence investigation report recommended five criminal
history points based on the following calculation: one point for
a juvenile conviction of possession of cannabis; one point for
possession of an unregistered firearm; one point for a misde-
meanor traffic offense; and two points for committing the
current offense while under a criminal justice sentence related
to the traffic offense. At the sentencing hearing, the district
court adopted the PSR’s recommendation with the agreement
of both parties. That placed Pagan in criminal history category
III and, when combined with an offense level of 37, resulted in
a Guidelines range of 262 to 327 months’ imprisonment.
Pagan did not object to his criminal history calculation in
the district court. Both parties contend that Pagan forfeited,
rather than waived, this argument. In similar cases, we have
held that an objection to a criminal history calculation is
forfeited when the defendant failed to raise it below. See, e.g.,
United States v. Gill, 824 F.3d 653, 660 (7th Cir. 2016). Therefore,
we will treat the argument as forfeited and review for plain
Nos. 15-2933, 16-1496 & 16-3149 15
error. Id. Under the plain error standard, we will reverse the
district court’s sentencing determination only where: (1) there
is an error; (2) the error is clear or obvious; (3) the error
affected the defendant’s substantial rights; and (4) the error
seriously impugns the fairness, integrity, or public reputation
of the proceedings. Id. at 661 (citation omitted).
Pagan argues, and the government agrees, that the court
should not have assessed criminal history points for his
cannabis and traffic offenses. The state court dockets for
Pagan’s two convictions were obtained after the sentencing
hearing. As to the cannabis conviction, the court documents
showed that a sentence was never imposed, and therefore, no
criminal history points should have been assigned. See U.S.S.G.
§ 4A1.1. As to the traffic conviction, the PSR indicated an
18-month probation term, but the state court documents
showed only a 12-month probation term. Because that proba-
tion term was not for more than one year, Pagan should not
have received a criminal history point for his traffic conviction.
See id. § 4A1.2(c)(1). Additionally, because he should not have
received the criminal history point for the traffic offense, he
should not have received the additional two points for commit-
ting the instant offense while under a criminal justice sentence.
See id. § 4A1.1(d).
We conclude that the district court erred in assessing Pagan
five criminal history points based on the incorrect information
in the PSR. We have consistently held that “[a] district court’s
adoption of erroneous information in a PSR that results in an
incorrect Guidelines range, however correct such information
appears, constitutes plain error on review.” United States v.
16 Nos. 15-2933, 16-1496 & 16-3149
Jenkins, 772 F.3d 1092, 1098 (7th Cir. 2014) (collecting cases).
Accordingly, we find that the court committed plain error here.
III. CONCLUSION
For the foregoing reasons, Brown’s conviction is affirmed,
the district court’s order denying Hawthorne’s motion for a
new trial is affirmed, and Pagan’s sentence is vacated and his
case is remanded for resentencing.