United States v. Smith, Frank ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-1501, 98-1578, 98-1683, 98-1684,
98-2005, 98-2179, 98-2570
United States of America,
Plaintiff-Appellee,
v.
Frank Smith, Keith McCain, Russell Ellis,
Eric Wilson, Sherman Moore, Steven Pink
and Charles Poteete,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 509--Paul E. Plunkett, Judge.
Argued September 10, 1999--Decided August 17, 2000
Before Flaum, Chief Judge, and Manion and Diane P.
Wood, Circuit Judges.
Diane P. Wood, Circuit Judge. For many years, the
Gangster Disciples (GD) street gang operated a
massive drug distribution business in the Chicago
area. Eventually, the government caught up with
it, and in 1995 the grand jury returned
indictments against different members of the GD
gang. We considered the appeals of other GDs in
United States v. Jackson, 207 F.3d 910 (7th Cir.
2000), and in United States v. Irwin, 149 F.3d
565 (7th Cir. 1998). In the present case, we have
before us the appeals of seven more members from
their convictions and sentences for a variety of
drug, weapons, and money laundering offenses. We
affirm on all counts.
I
The phrase "street gang" hardly begins to
describe the breadth and complexity of the GD
organization, which began its operations in
Chicago in the early 1970s. Its chairman was
Larry Hoover, for years an inmate of the Vienna
Correctional Center in Vienna, Illinois, and now
an inmate of the maximum security federal prison
known as ADX Florence, in Florence, Colorado.
Next in command was Gregory Shell, who served as
Hoover’s go-between to GD leaders who were not in
prison. As of 1993, the GDs had approximately
6,000 members.
As we have explained elsewhere, see Jackson,
207 F.3d at 913, the GDs were organized along
both territorial and hierarchical lines. Below
Hoover and Shell and the board of directors were
the Governors, each of whom was responsible for
a specific geographic territory. The Governors
had Assistant Governors, and in addition each
Governor had several Regents working under him.
Each Regent in turn had several coordinators and
soldiers working for him and for whom he was
responsible. The number of coordinators and
soldiers was referred to as the "count."
Defendants Keith McCain ("Khadafi"), Sherman
Moore, Eric Wilson ("Fat Eric"), and Russell
Ellis ("Poncho") were all Governors; defendants
Steven Pink ("Chi Chi") and Charles Poteete were
Regents; and defendant Frank Smith ("L’il Frank")
collected drug money for Shell and sold cocaine
for the group. The GDs as a whole protected their
territory from incursions by rival gangs, using
violence where necessary. They sometimes used
minors, armed with guns provided by the GDs, to
provide security and protection for GD leaders
and drug dealers.
The GDs had an elaborate code of conduct and
set of rules for the internal management of the
organization. They enforced these codes through
punishments, known as "violations"; they
typically spoke of "violating person X." The
violations could be as lenient as fines or as
stringent as severe physical beatings, depending
on the infraction. Gang leaders decided which
punishment was appropriate for which misdeed.
The GDs sold drugs throughout Chicago and the
surrounding areas. They organized their sales
both by territory and through the coordinating
efforts of the Governors and the higher gang
leadership. The Governors supervised their own
territories, ensured that members did not
interfere with one another’s sales, and kept tabs
on rival drug sellers. In addition, the Governors
and Regents often served as drug suppliers for
their territories. The principal illegal
substance involved in the present case was
cocaine, and so we often refer simply to cocaine
for the sake of simplicity.
Hoover devised a number of ways by which the
street profits from cocaine sales worked their
way up to the higher levels of the GD
organization. First, he developed the system of
"nation work." This referred to the obligation of
members to devote one day a week to sales for the
GD organization. GD leaders provided members with
cocaine to sell on those days and required them
to return all receipts to the leaders. As
recorded on tapes from prison, see generally
Jackson, Hoover estimated that "nation work"
would be extremely lucrative, guessing that it
would bring in $300,000 per week. Next was the
"street tax," under which GDs were required to
pay $35 to $75 per week to their leaders on pain
of being "violated." The leaders, in turn, had to
pay "count" on a weekly basis, which was an
amount determined by the number of GDs in the
leader’s territory. In addition, Regents had to
pay $50 to $200 weekly to fund one of the GDs’
political organizations, the 21st Century Vote
project. Last, GD members were required to buy
tickets to concerts sponsored by another
ancillary organization, Save the Children.
The government’s investigation relied heavily on
tape recordings of conversations among high-
ranking GD members. We discussed in some detail
the recordings made of Hoover and his visitors at
Vienna in Jackson. In addition, the government
wiretapped June’s Shrimp on the Nine, a southside
restaurant purchased for Shell by a former gang
crimes police officer. GD members occasionally
used June’s Shrimp as a meeting place. Finally,
GD Governor Cedric Parks and GD Board Member
Darryl Johnson were wiretapped.
The government also used a document it
discovered in the files of Save the Children
(which was owned by Hoover’s female partner). The
document was a list describing the territorial
and hierarchical organization of the entire GD
operation, and it was known simply as "The List"
at the trial. Hoover had mentioned his desire to
develop such a document in some of the taped
conversations, which he wanted to use to keep
track of gang members and their payments to the
GDs. "The List" includes all of the defendants
here except Wilson.
Before turning to the many arguments raised in
this appeal, we review briefly (1) who the
players are, (2) what they were accused of doing,
and (3) what they were convicted for. We also set
forth the charges in the superseding indictment,
for ease of reference. (The charges in the
original indictment were dismissed on the
government’s motion.)
A. Indictment
Count 1: Operation of drug conspiracy, 21 U.S.C.
sec. 846.
Count 2: Operation of a continuing criminal
enterprise (CCE), 21 U.S.C. sec. 848(a).
Counts 3, 4: Using minors to further drug
conspiracy and to avoid detection, 21 U.S.C. sec.
861(a), 18 U.S.C. sec. 2.
Counts 5-8, 10, 11, 13-17, 28, 38, 39:
Possession and distribution of drugs by various
individuals, 21 U.S.C. sec. 841(a)(1), 18 U.S.C.
sec. 2.
Count 12: Attempted possession with intent to
distribute drugs by conspirators, 21 U.S.C. sec.
846, 18 U.S.C. sec. 2.
Counts 9, 18-27, 29-37: Using or causing use of
telephones to facilitate drug crimes, 21 U.S.C.
sec. 843(b), 18 U.S.C. sec. 2.
Count 40: Using a firearm during a drug
trafficking crime, 18 U.S.C. sec. 924(c), 18
U.S.C. sec. 2.
Count 41: Money laundering, 18 U.S.C. sec.
1956(a)(1) (B)(i).
B. Defendants, Accusations, and Convictions/1
Name Position Charges Convictions
McCain Governor, Counts 1-40 Counts 1-8,
South East 11-27, 29,
Chicago 31-36,39, 40
Moore Governor,
Near West
Chicago Counts 1-40 Counts 1-7
Ellis Regent Counts 1-40 Counts 1-8,
under Moore, 11-27, 29,
later 31-36,
Governor 39, 40
Wilson Governor Counts 1-41 Counts 1-8,
after Ellis 11-27, 29,
31-36, 39-41
Pink Co-Regent, Counts 1, 7, Counts 1, 7,
McCain 10, 14 14
territory
Poteete Regent, Counts 1, 5, 6 Counts 1, 5, 6
Moore
territory
Smith Collection Counts 1, 17 Counts 1, 17
agent
We have organized our discussion of this
complex set of appeals as follows. We consider
first the issues raised in the consolidated brief
filed on behalf of all defendants; next we
consider the individual issues that related to
convictions; and finally, we consider the
individual sentencing issues.
II
A. Common Issues
1. Section 848(b): Offense Element or
Sentencing Factor?
Defendants McCain, Moore, Ellis, and Wilson (the
Governor defendants) begin with an argument to
which the Supreme Court has given significant
attention in recent years. Count 2 of the
indictment charged all four with engaging in a
continuing criminal enterprise in violation of 21
U.S.C. sec. 848(a), which provides in pertinent
part as follows:
Any person who engages in a continuing criminal
enterprise shall be sentenced to a term of
imprisonment which may not be less than 20 years
and which may be up to life imprisonment, to a
[specified] fine . . . , and to the forfeiture
prescribed in section 853 of this title; except
that if any person engaged in such activity after
one or more prior convictions of him under this
section have become final, he shall be sentenced
to a term of imprisonment which may not be less
than 30 years and which may be up to life
imprisonment, . . . .
The term "continuing criminal enterprise" is
defined in sec. 848(c) to apply to a person who
commits a drug felony, and that felony is part of
a continuing series of such violations that "are
undertaken by such person in concert with five or
more other persons with respect to whom such
person occupies a position of organizer, a
supervisory position, or any other position of
management," and from which the person obtains
substantial income or resources.
The statute goes on to prescribe a mandatory
term of life imprisonment for a subset of those
caught by it. The harsher sentence applies if:
(1) such person is the principal administrator,
organizer, or leader of the enterprise or is one
of several such principal administrators,
organizers, or leaders; and
(2)(A) the violation referred to in subsection
(c)(1) of this section involved at least 300
times the quantity of a substance described in
subsection 841(b)(1)(B) of this title, or (B) the
enterprise, or any other enterprise in which the
defendant was the principal or one of several
principal administrators, organizers, or leaders,
received $10 million dollars in gross receipts
during any twelve-month period of its existence
for the manufacture, importation, or distribution
of a substance described in section 841(b)(1)(B)
of this title.
21 U.S.C. sec. 848(b).
The question the Governor defendants raise is
whether sec. 848(b) defines a separate offense,
or if it simply sets out factors that should be
used to enhance the sentence imposed for a
violation of sec. 848(a). At the time of the
trial, this court had never ruled definitively on
that question, although we had indicated that
sec. 848(b) "appear[ed] to be a sentencing
enhancement provision" in United States v.
Kramer, 955 F.2d 479, 484 n.4 (7th Cir. 1992).
After the trial, we decided in United States v.
Hardin, 209 F.3d 652 (7th Cir. 2000), that it was
a sentencing factor. Id. at 656-59. The Hardin
decision took into account the two pertinent
Supreme Court decisions that were available at
the time, Almendarez-Torres v. United States, 523
U.S. 224 (1998), and Jones v. United States, 526
U.S. 227 (1999). Since Hardin, however, the Court
has issued two more decisions that bear on the
subject: Castillo v. United States, 120 S. Ct.
2090 (2000); and Apprendi v. New Jersey, 120 S.
Ct. 2348 (2000). We therefore consider it
appropriate to revisit the question that was
resolved in Hardin, to make sure that nothing in
these more recent decisions requires a different
result.
As the Supreme Court noted in Apprendi, 120 S.
Ct. at 2360, the first time the distinction
between "sentencing factors" and elements of an
offense appeared in those terms in the Court’s
decisions was in McMillan v. Pennsylvania, 477
U.S. 79 (1986). McMillan involved the
constitutionality of Pennsylvania’s Mandatory
Minimum Sentencing Act, 42 Pa. Cons. Stat. sec.
9712 (1982). That statute provided that anyone
convicted of certain felonies was subject to a
mandatory minimum sentence of five years’
imprisonment if the sentencing judge found, by a
preponderance of the evidence, that the defendant
"visibly possessed a firearm" during the
commission of the offense. As the Court put it,
"[t]he Act operates to divest the judge of
discretion to impose any sentence of less than
five years for the underlying felony; it does not
authorize a sentence in excess of that otherwise
allowed for that offense." 477 U.S. at 81-82. The
Court found that Pennsylvania had merely taken
one factor traditionally considered by sentencing
judges--the instrumentality used to commit the
crime--and dictated the precise weight it was to
receive. Id. at 89-90. That act alone did not
transform what the state legislature plainly
regarded as a factor for sentencing into an
element of the offense that the Constitution
requires to be proved beyond a reasonable doubt
before a jury.
The next case in this line, Almendarez-Torres,
involved the question whether a provision of the
Immigration and Naturalization Act, 8 U.S.C. sec.
1326(b)(2), which authorized a prison term of up
to 20 years for an alien who has once been
deported, and who then re-enters the United
States without special permission, only in those
cases where the initial deportation was
subsequent to a conviction for commission of an
aggravated felony. Otherwise, the authorized
prison term was only two years. The Court held
that the factor of recidivism that underlay sec.
1326(b)(2) was a traditional sentencing factor
and thus (once again) did not have to be proved
beyond a reasonable doubt as an element of the
offense. It reached this result despite the fact
that, unlike McMillan, the additional factor had
the effect of increasing the total possible
sentence the defendant could receive. 523 U.S. at
243. Three considerations lay behind the Court’s
thinking: first, recidivism is traditionally
taken into account at the sentencing phase;
second, the sentencing factor in Almendarez-
Torres merely increased the maximum permissive
sentence instead of triggering a mandatory
minimum term, as in McMillan; and third, the
statute’s broad permissive range did not create
significantly greater unfairness than the due
process clause tolerates. Id. at 243-46.
In its very next Term, the Court had occasion
to begin defining the limits on the other side of
the sentencing factor/element of the offense
distinction. The case was Jones v. United States,
supra, which presented the question whether the
federal carjacking statute, 18 U.S.C. sec. 2119,
defined three distinct offenses or a single crime
with a choice of three maximum penalties, two of
which were dependent on proof of facts that did
not need to be present in the indictment or
decided by the jury. 526 U.S. at 229. The basic
statute provided a fine or imprisonment of not
more than 15 years for the offense of carjacking,
sec. 2119(1), but if serious bodily injury
resulted, the maximum time in prison was 25
years, sec. 2119(2), and if death resulted, the
maximum was life imprisonment, sec. 2119(3).
The indictment in Jones’s case made no
reference to the subsections of the statute, nor
did it charge either that the defendant had
inflicted serious bodily injury on the victim or
death. Only when the presentence report showed up
did the factor of serious bodily injury enter the
case. The lower courts held that the additional
facts that triggered sec. 2119(2) and (3) were
nonetheless sentencing factors, but the Supreme
Court reversed. It first rejected the idea that
"the ’look’ of the statute" was a reliable guide
to whether the additional facts were elements of
the offense or factors for sentencing. 526 U.S.
at 233. Next, the Court compared this statute to
others and observed that Congress had very
frequently (though not always) made serious
bodily injury an element of the offense. Id. at
235-36. Finally, invoking the doctrine under
which the Court avoids interpretations of
statutes that raise constitutional doubts, id. at
239, the Court concluded that serious questions
under both the Sixth Amendment and the due
process clause would be present if it adopted the
"sentencing factor" approach. Id. at 248. It
distinguished Almendarez-Torres because of the
"distinctive significance of recidivism" as a
sentencing factor, noting that "unlike virtually
any other consideration used to enlarge the
possible penalty for an offense, and certainly
unlike the factor before us in this case, a prior
conviction must itself have been established
through procedures satisfying fair notice,
reasonable doubt, and jury trial guarantees." Id.
at 249 (emphasis added).
Taking Jones and Almendarez-Torres together, it
was unclear how far the Court was prepared to go
in characterizing factors other than recidivism
as "sentencing factors" rather than elements. Two
cases decided during O.T. 1999 cast further light
on the subject. First was Castillo v. United
States, supra, which involved the question
whether 18 U.S.C. sec. 924(c), which prohibits
the use or carrying of a "firearm" in relation to
a crime of violence, and then imposes a
significantly more severe penalty if the weapon
is a "machinegun," defines one or two offenses.
The Court held that the statute used the term
"machinegun" (and like terms) to state an element
of a separate offense. 120 S. Ct. at 2091. As
such, the indictment had to identify the firearm
type and the jury had to find that element proven
beyond a reasonable doubt. Id. at 2092. The Court
reached its conclusion by looking at the
statute’s "language, structure, context,
history," and other factors throwing light on its
objectives. Id. It was important that the maximum
penalty for an ordinary weapon was five years,
but for a machinegun it was 30 years. On the
other hand, the Court specifically rejected the
notion that the fact that sec. 924 as a whole was
entitled "Penalties" was significant. Id. at
2093. The kind of traditional sentencing factor
to which Almendarez-Torres had referred, the
Court stated, "often involve[d] either
characteristics of the offender, such as
recidivism, or special features of the manner in
which a basic crime is carried out (e.g., that
the defendant abused a position of trust or
brandished a gun)." Id. at 2094.
The latest in this line is the Supreme Court’s
June 26, 2000, decision in Apprendi. There the
Court labeled Almendarez-Torres as "at best an
exceptional departure from the historic practice"
of entrusting to the jury "the determination of
a fact that, if found, exposes the criminal
defendant to a penalty exceeding the maximum he
would receive if punished according to the facts
reflected in the jury verdict alone." 120 S. Ct.
at 2361, 2359. It went on to hold as follows:
Other than the fact of a prior conviction, any
fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt.
Id. at 2362-63. The New Jersey hate crime statute
at issue in Apprendi increased the normal 5-10
year range of imprisonment for possession of a
firearm for an unlawful purpose to a 10-20 year
term, if the defendant acted with a purpose to
intimidate an individual or a group because of
that person’s race, color, gender, handicap,
religion, sexual orientation, or ethnicity. Id.
at 2351. The doubling of the penalty was enough
to make the "purpose to intimidate" an offense
element, not a sentencing factor.
With these cases in mind, we must decide
whether sec. 848(b) has the kind of "increased
punishment" effect that triggers the Apprendi
rule. This is a difficult inquiry. On the one
hand, sec. 848(a) authorizes a range of
imprisonment of 30 years to life, and sec. 848(b)
simply eliminates anything in that range below a
life sentence for the principal administrator,
organizer or leader when the required quantities
or value of drugs are involved. Thus, at the time
the Governor defendants went to trial, they knew
that they faced the risk of a life sentence. On
the other hand, as Justice Thomas wrote in his
concurring opinion in Apprendi, at a certain
level of generality one can surely say that a
fact that increases the prosecution’s entitlement
is an element, not a sentencing factor. Id. at
2379. Ex ante, the expected punishment the
defendant will receive is necessarily greater if
the range has been shrunk from 30 years to life,
to mandatory life: "The mandatory minimum
entitles the government to more than it would
otherwise be entitled (5 to 10 years, rather than
0 to 10 and the risk of a sentence below 5).
Thus, the fact triggering the mandatory minimum
is part of the punishment sought to be
inflicted." Id. (internal quotations and
citations omitted).
We must decide, therefore, whether the literal
fact that these defendants faced at least a risk
of a life term is enough to make sec. 848(b) a
sentencing statute under Apprendi. Such a
decision would, of course, amount to a rejection
of the theory of increased expected punishment
articulated by Justices Thomas and Scalia in
Apprendi--a theory that the other three justices
in the majority had no occasion to discuss, given
the nature of the New Jersey law actually before
them. In the end, however, it is our best guess
that the rest of the majority would not have gone
this far (and it seems clear that the four
dissenters would have no trouble finding a
sentencing factor under the circumstances now
before us). The language of the principal opinion
refers not to the defendant’s expected
punishment, but to the "prescribed statutory
maximum." Id. at 2363. That sounds to us like a
reference to the text of the statute, and there
is no doubt here that a life sentence was
possible under sec. 848(a), even if it was not a
certainty.
We agree entirely with Justice Thomas’s
observation that the predicted sentence would
often be lower, if the judge knew she could
select a sentence below life. Indeed, we have
often remanded cases for resentencing if a
district court makes an error in calculating
either offense level or criminal history under
the Sentencing Guidelines, and (for example) that
error has the effect of moving the defendant from
level 43 (mandatory life) to level 42 at any
criminal history category (360 months to life).
See United States v. Patterson, 215 F.3d 776, 786
(7th Cir. 2000); United States v. Guyton, 36 F.3d
655, 661 (7th Cir. 1991). The defendant is
entitled in those cases to a chance to persuade
the judge to select something less than life,
even though the risk of a new life sentence
remains. Nevertheless, the Court has reiterated
several times that it has not overruled McMillan,
and it seems to us that the rationale of McMillan
applies with equal force to sec. 848: "[The
statute] operates to divest the judge of
discretion to impose any sentence of less than
[life] for the underlying felony; it does not
authorize a sentence in excess of that otherwise
allowed for that offense." See 477 U.S. at 81-82.
We therefore reject the Governor defendants’
argument that the indictment should have charged
that they satisfied the criteria of sec. 848(b)
and that the jury should have found those facts
beyond a reasonable doubt, and we move on to the
other common issues.
2. Jury Instructions: Use of Minor Pinkerton
Liability
We review the instructions the district court
gave to the jury as a whole. "We reverse only if
the jury instructions, viewed as a whole,
misguide the jury to the litigant’s prejudice."
United States v. Rodriguez-Andrade, 62 F.3d 948,
953 (7th Cir. 1995). For example, reversal is
proper where the instructions inaccurately state
the law, see United States v. Madoch, 149 F.3d
596, 599 (7th Cir. 1998), cert. denied, 526 U.S.
1006 (1999), or fail to present a theory of
defense supported by the evidence, see United
States v. Minneman, 143 F.3d 274, 280 (7th Cir.
1998). With respect to the instruction regarding
the sec. 861 offenses, the defendants’ complaint
is that the instruction did not require the
government to prove that they knew that the
individual used was a minor. In fact, the court
told the jury that "the Government does not have
to prove that the defendant whom you are
considering knew that the person was under the
age of 18 when he was employed or used to further
the narcotics conspiracy."
This was a correct statement of the law, as we
have since held in United States v. Frazier, 213
F.3d 409, 419 (7th Cir. 2000). Other circuits had
so held before we addressed the issue, in cases
such as United States v. Chin, 981 F.2d 1275,
1280 (D.C. Cir. 1992); United States v. Williams,
922 F.2d 737, 738-39 (11th Cir. 1991); United
States v. Valencia-Roldan, 893 F.2d 1080, 1083
(9th Cir. 1990); and United States v. Carter, 854
F.2d 1102, 1108-09 (8th Cir. 1988). In Frazier,
we joined them, relying on the legislative
purpose to protect juveniles, the undesirability
of adopting a rule that would encourage drug
dealers to blind themselves to the ages of the
young people with whom they dealt, and the need
to place the burden of ascertaining age on the
drug dealer at the time of the transaction.
Frazier disposes of this argument entirely.
With respect to the Pinkerton instruction, which
relates to the convictions on Counts 3-9, 11-23,
25-27, 29-37, and 39-40, the defendants make a
somewhat odd argument. They assert that Pinkerton
v. United States, 328 U.S. 640 (1946), is no
longer good law in narcotics cases after the
Supreme Court’s decision in United States v.
Shabani, 513 U.S. 10 (1994), which held that
proof of agreement is enough to support a
conviction under 21 U.S.C. sec. 846, and that the
government does not need to go further and prove
that the defendant committed an overt act in
furtherance of the conspiracy. But the Court said
not a word about Pinkerton in Shabani, and for
understandable reasons. The two cases simply
dealt with different issues. Except for Count 12,
the counts to which the defendants refer charged
offenses under 21 U.S.C. sec. 841, not
conspiracies under sec. 846. Shabani is about how
much the government must prove to show a sec. 846
violation (and we note it does not prohibit the
government from proving overt acts--it just says
that the government does not bear that burden).
Pinkerton is about the ways in which acts of one
person may be attributed to another, when there
is a conspiracy.
This court has regularly applied Pinkerton to
drug conspiracies in post-Shabani cases. See,
e.g., United States v. Benjamin, 116 F.3d 1204,
1206 (7th Cir. 1997); United States v. Vega, 72
F.3d 507, 517 (7th Cir. 1995). There is nothing
wrong with the Pinkerton instruction given here,
which stated that:
A conspirator is responsible for the acts of any
other member of the conspiracy if he was a member
of the conspiracy when the act was committed, and
if the act was committed in furtherance of or as
a natural consequence of the conspiracy.
We add that there is no tension between Pinkerton
liability and the type of vertical territorial
organization that the GDs used for their drug
business. The question whether the actions of
others were reasonably foreseeable to the
particular defendants (or, as this instruction
put it, a natural consequence of the conspiracy
they joined) is a factual one. Those facts will
exist in some hub-and-spokes style conspiracies,
especially when the culpability of individuals
near the hub is at stake. They are the people who
can predict what their counterparts are doing,
even if they have no direct knowledge. We are not
prepared to hold that Pinkerton liability is
unavailable as a matter of law in this kind of
case. We therefore reject this line of argument
as well.
3. Richardson Error
After the trial in this case but before oral
argument, the Supreme Court decided in Richardson
v. United States, 526 U.S. 813 (1999), that a
jury in a CCE case must unanimously agree on at
least three specific acts that constitute the
series of violations called for by sec. 848. As
in Richardson itself, the district court here had
not given such an instruction to the jury. The
Governor defendants argue that this omission
requires reversal of their CCE convictions.
Before addressing that argument directly, we
must consider the proper standard of review. The
government argues that this kind of problem is
subject to harmless error analysis, under Neder
v. United States, 527 U.S. 1 (1999), while the
defendants predictably both resist that idea and
argue that the error here could not be considered
harmless. The language of Neder, however, leaves
little room for the defendants’ position. Neder
itself was a case in which the parties agreed
that the jury had been given erroneous
instructions, in that the issue of materiality
had not been submitted to the jury as it should
have been under United States v. Gaudin, 515 U.S.
506 (1995). Even so, the Supreme Court held that
the harmless error rule of Chapman v. California,
386 U.S. 18 (1967), applied.
The Chapman test, which the Court reconfirmed
in Neder, requires us to ask "whether it appears
’beyond a reasonable doubt that the error
complained of did not contribute to the verdict
obtained.’" 527 U.S. at 15, quoting from Chapman,
386 U.S. at 24. In this case, as in its companion
Jackson, supra, that test is satisfied. In
Jackson, other members of the GDs made the same
argument under Richardson, based on the same
failure of the district court to require the jury
to decide on the three predicate offenses. In
Jackson, we found harmless error because the jury
in fact found the defendants guilty of "many more
than three predicate offenses relating to the
drug conspiracy." 207 F.3d at 919. The same is
true here. McCain, Moore, Ellis, and Wilson were
the four defendants that Count 2 charged with
violating sec. 848, and the jury convicted all
four. It also convicted all four on Counts 3 and
4 (violations of sec. 861, use of minor in
connection with drug offenses) and on Counts 5-7
(violations of sec. 841). That assures us that
the jury unanimously found that each defendant
had committed at least three specific predicate
offenses, and that any error here in the
instructions was harmless. See also Hardin, 209
F.3d at 659 (finding harmless error in exactly
the same circumstances).
4. Sufficiency of Evidence for Life Sentences
This aspect of the Governors’ argument attacks
the district court’s findings at the sentencing
phase that established the necessary drug
quantities and dollar volumes required to trigger
sec. 848(b). As the text we set out earlier
indicates, sec. 848 applies when (1) the person
is the principal administrator or one of several
principals, and (2) the violation involved at
least 300 times the quantity of a substance
described in sec. 841(b)(1)(B), or (3) the
enterprise received $10 million in gross receipts
during any 12-month period of its existence for
the manufacture, importation, or distribution of
the forbidden substance. Elements (2) and (3) are
the ones at issue here.
Once again, the standard of review proves to be
critical. The district court’s calculations of
drug quantity and dollar volume were findings of
fact, and thus reviewable only for clear error.
United States v. Hach, 162 F.3d 937, 950 (7th
Cir. 1998), cert. denied, 526 U.S. 1103 (1999).
Even the defendants can do no more than say that
the evidence here was "thin," which is a weak
start on a difficult argument for them. In
specific terms, the government had to show that
the principal leaders of the CCE distributed 150
kilograms of cocaine powder or 1.5 kilograms of
crack cocaine, and that it received the required
revenues.
To do so, it relied on the surveillance tapes
in which Hoover was heard discussing the GD drug
sales and stating that the GDs as a whole were
selling $200,000 to $300,000 a day worth of
cocaine. It also relied on the testimony of
cooperating witness Akira Stigler that he sold
$7,000 to $10,000 of drugs per day in "Pink’s
Alley," and that each $10 bag contained about 0.1
gram of crack cocaine. The court, adopting the
government’s estimates, then extrapolated from
these figures and concluded that Hoover’s
estimate led to annual GD sales of up to $109.5
million. Of that, the GD organization itself
received its "nation work" cut of one day per
week, or a total of $10.4 to $15.6 million
annually. Assuming that powder cocaine sells for
$20,000 per kilogram (the number suggested in
trial testimony), the GDs had to sell 10 to 15
kilos a day to reach Hoover’s estimates. Trial
witnesses also estimated that a $10 bag of crack
contains anywhere from 0.1 to 0.2 gram; taking
the average of 0.15 gram, the organization would
have had to sell between 3 and 4.5 kilos of crack
each day to reach Hoover’s estimates. Looking at
only the one day per week of "nation sales,"
there would still be annual sales of 156 to 234
kilos of crack. Using "The List," the court took
all these figures and allocated them among the
defendants in the same proportion as each
defendant’s "count" under "The List." For
example, McCain had a "count" of 761; he
therefore was responsible for 12% of the GD
members, and thus 12% of the GD sales.
The defendants attack this methodology on
several grounds. First, they urge us to find that
Hoover’s statements were unreliable because they
were nothing but idle boasts. But this was a call
for the district court to make, and in light of
the rest of the evidence showing the tremendous
scope of the GD operations, we cannot say it was
clear error to take Hoover seriously. The same is
true about the court’s assessment of Stigler’s
credibility. The figures here are so huge that
the court would have had to been off by an order
of magnitude before any mistake would have made
a difference. We see no such error.
5.Other Issues
a. Batson Claims
The consolidated brief argues that the
defendants’ right to an impartial jury drawn from
a cross-section of the community was violated for
three reasons: (1) African-Americans are
underrepresented on the Illinois voter
registration rolls from which the Northern
District of Illinois draws its jurors; (2) the
government moved to empanel an anonymous jury,
and the court’s grant of that motion prejudiced
the defendants; and (3) the government used its
peremptory challenges in a racially
discriminatory way, in violation of Batson v.
Kentucky, 476 U.S. 79 (1986).
We find no merit to any of these arguments. We
have found before that there is nothing wrong
with the use of voter rolls to select a venire.
United States v. Cooke, 110 F.3d 1288, 1302 (7th
Cir. 1997). Furthermore, the 109-person venire in
this case included 15 African-Americans, or 13.8%
of the members. Counsel for Moore pointed out
that the voter rolls show that 18% of the
relevant population is African-American, but the
4.2% difference is hardly worth noting when one
considers the effect of random selection of
venires. The thrust of the defendants’ argument
on the anonymity of the jury was to support their
Batson argument. In any event, this is a decision
that lies within the district court’s discretion,
United States v. DiDomenico, 78 F.3d 294, 301-02
(7th Cir. 1996), and there is nothing here that
persuades us the district court abused its
discretion or impermissibly communicated to the
jury that the defendants were likely to be
personally dangerous to it. Cf. United States v.
Smith, 31 F.3d 469, 471-72 (7th Cir. 1994).
In all, the government exercised five peremptory
challenges during the jury selection process.
Three were against African-Americans, and the
other two were not. The final jury included two
African-Americans. Following the guidance from
Batson, the district court required the
government to articulate its reasons for striking
each of the African-American venire persons. See
United States v. Cooper, 19 F.3d 1154, 1160-61
(7th Cir. 1994). The government explained that
Juror No. 49 lived in the "territory" of some of
the defendants, her brother had been prosecuted
for drugs, and the government attorneys found her
manner "stand-offish." Juror No. 116, it said,
was a "social worker type," who it believed would
be too sympathetic toward the defendants. It was
troubled by Juror No. 129 because on the one hand
she disavowed all knowledge of Larry Hoover, but
on the other hand she acknowledged reading
magazines that had published several articles
about Hoover; in addition, her brother and
Poteete were both hair dressers. The district
court accepted these reasons and found that they
were nondiscriminatory. A finding on the question
of discriminatory intent is entitled to
deferential review. See, e.g., United States v.
Brisk, 171 F.3d 514, 523 (7th Cir.), cert.
denied, 120 S. Ct. 150 (1999); Mahaffey v. Page,
162 F.3d 481, 484 (7th Cir. 1998), cert. denied,
526 U.S. 1127 (1999). We find no such error here;
to the contrary, the government provided multiple
nondiscriminatory reasons for its strikes, and
the record contains no support for the
defendants’ various efforts to suggest that the
government was somehow systematically
disadvantaging the African-American panel
members.
b. Admission of "The List" into Evidence
The defendants all complain that the district
court should not have admitted "The List" into
evidence. We review that decision only for abuse
of discretion. United States v. Curry, 79 F.3d
1489, 1494-95 (7th Cir. 1996); United States v.
De Gudino, 722 F.2d 1351, 1355 (7th Cir. 1984).
"The List" was the document that IRS agents
seized from a file cabinet at Save the Children
Promotions. The folder containing "The List" was
marked "L./Sr," presumably to distinguish it
somehow from Hoover’s son, Larry Hoover, Jr. The
information on "The List" described the
hierarchical and territorial organization of the
GDs.
The defendants complain that it was not
properly admitted as a co-conspirator statement
under Fed. R. Evid. 801(d)(2)(E), because the
identity of the person who created it was
unknown. They also assert that it was not
properly authenticated under Fed. R. Evid. 901.
Neither argument holds water.
The details contained in "The List" were such
that it could only have been written by a member
of the GDs or by someone sufficiently involved
with the business to be intimately familiar with
it--in other words, by a co-conspirator. The
defendants are wrong to suggest that it is
necessary to know the precise identity of a co-
conspirator before statements can be admitted
under Rule 801(d)(2)(E). See, e.g., De Gudino,
722 F.2d at 1355-56. As for authentication, the
magistrate judge concluded that there was ample
proof of its authenticity: there were recordings
of Hoover and Shell discussing its creation, it
was discovered in the files of Hoover’s female
companion, the label on the file matched Hoover’s
name, and the contents clearly indicated that it
was a GD document. These are the kinds of factors
to which Illustration (b)(4) of Rule 901 refers.
The district court did not abuse its discretion
in admitting "The List."
c. Singleton Claim
We have by now on numerous occasions rejected
the argument that criminal convictions must be
reversed whenever the government has promised its
witnesses leniency in exchange for their
testimony. See United States v. Turner, 203 F.3d
1010, 1014 (7th Cir. 2000); United States v.
Curry, 187 F.3d 762, 765-66 (7th Cir. 1999),
cert. denied, 120 S. Ct. 834 (2000); United
States v. Condon, 170 F.3d 687, 688 (7th Cir.),
cert. denied, 526 U.S. 1126 (1999). It has no
merit here either, and we have nothing to add to
our earlier decisions on the point.
B. Individual Issues: Convictions
Before beginning our consideration of the
individual issues the different defendants have
raised, we note that defendants Poteete and Smith
did not file supplemental individual briefs,
choosing instead to rely on the points raised in
the joint brief. We therefore have the individual
claims of only five of the defendants to
consider.
1. Moore
a. Sufficiency of Indictment, sec. 861
We begin with Moore’s pro se challenge to the
language of the indictment charging him with
using minors to commit or avoid detection of a
drug felony, in violation of 21 U.S.C. sec. 861.
(Ellis moved pro se to join this argument; the
panel took that motion with the case, and we
hereby grant it.) The relevant parts of that
statute read as follows:
(a) Unlawful acts
It shall be unlawful for any person at least
eighteen years of age to knowingly and
intentionally--
(1) employ, hire, use, persuade, induce, entice,
or coerce, a person under eighteen years of age
to violate any provision of this subchapter or
subchapter II of this chapter;
(2) employ, hire, use, persuade, induce, entice,
or coerce, a person under eighteen years of age
to assist in avoiding detection or apprehension
for any offense of this subchapter or subchapter
II of this chapter by any Federal, State, or
local law enforcement official; . . .
(Emphasis added.) As Moore correctly points out,
Count 3 of the superseding indictment alleged
only that from 1987 through August 30, 1995, in
Chicago and elsewhere within the Northern
District of Illinois, defendants McCain, Moore,
Vincent Martin, Ellis, Tirenzy Wilson, and Eric
Wilson "employed, hired, used, induced and
enticed a person under eighteen years of age to
violate Title 21, United States Code, Section
846, as charged in Count One of this Indictment,"
in violation of 21 U.S.C. sec. 861(a)(1) and 18
U.S.C. sec. 2. It never mentions doing these acts
"knowingly and intentionally," as the statute
appears to require. The same flaw exists in Count
4, which charges a violation of sec. 861(a)(2)
(use of minor to avoid detection of drug crime).
Moore makes his attack on the sufficiency of
the indictment for the first time on appeal. On
the one hand, it is clear that he is entitled to
do so, for Fed. R. Crim. P. 12(b)(2) states that
a defendant may raise at any time an objection
that the indictment "fails to show jurisdiction
or to charge an offense," and such an objection
"shall be noticed by the court at any time during
the pendency of the proceedings." Here, Moore is
arguing that the indictment’s failure to allege
that he took these acts "knowingly and
intentionally" means that it fails to charge an
offense. On the other hand, the untimely nature
of Moore’s objection affects the standard of
review that we use. If an indictment has not been
challenged in the trial court, it is immune from
attack "unless it is so obviously defective as
not to charge the offense by any reasonable
construction." United States v. Wabaunsee, 528
F.2d 1, 2 (7th Cir. 1975), quoting United States
v. Vanderberg, 358 F.2d 6, 10 (7th Cir. 1966);
see also United States v. Johnson, 805 F.2d 753,
758 (7th Cir. 1986) (same).
While this indictment was far from perfect, and
it might have been vulnerable to a timely
objection, we conclude that it is not so
thoroughly defective that it must be set aside at
this late date. In so holding, we recognize that
"in order for an indictment to be valid it must
allege all of the elements which are necessary to
constitute a violation of the statute." Davis v.
United States, 253 F.2d 24, 25 (6th Cir. 1958),
quoted in Wabaunsee, 528 F.2d at 3. It is not
necessary to spell out each element, but each
element must be present in context. See United
States v. Olson, 846 F.2d 1103, 1115-16 (7th Cir.
1988).
Moore (and Ellis) rely on Wabaunsee in their
effort to urge the opposite result. Wabaunsee,
however, held only that a defect in an indictment
could not be cured by a mere citation to the
governing statute or by proper jury instructions.
We do not disagree with those propositions, but
we do not find them particularly useful here
either. The government responds by pointing to
United States v. Dixon, 596 F.2d 178 (7th Cir.
1979), in which the defendants were charged with
violating the statute that prohibits conveying a
weapon within a penal institution (in Dixon’s
case, a "shank," or sharpened table knife). In
that case, the statute did not contain an express
scienter requirement, but courts had inferred
that such a requirement existed. The indictment
tracked the language of the statute. This court
found the indictment sufficient for two reasons:
first, because it would be unlikely that a person
would unknowingly carry a weapon around in a
penal institution, and thus the acts charged
implicitly included a knowledge requirement (and
would have permitted the defendant to raise as a
defense the possibility that he was an unwitting
carrier); and second, because it was sufficient
for the indictment to trace the language of the
statute. Id. at 180-81.
Our case differs from Dixon at least on the
latter point, because Counts 3 and 4 most
definitely did not include the statutory words
"knowingly and intentionally." The first point,
however, is more useful. As we held in United
States v. Garcia-Geronimo, 663 F.2d 738 (7th Cir.
1981), "[i]n determining whether an essential
element of the crime has been omitted from the
indictment, courts will not insist that any
particular word or phrase be used." Id. at 742.
In Garcia-Geronimo, we held that the use of the
phrase "dispose of" under 18 U.S.C. sec. 1426(b)
meant "to direct or assign for an illegal use,"
and thus made criminal intent an element of the
offense. Id. at 743. The use of the term "dispose
of" in the indictment was thus sufficient for
charging intent, bearing in mind the fact that
the criminal intent element may be alleged in any
form that substantially states it. Id. at 742-43.
We agree with Moore that some of the actions
charged in Counts 3 and 4 might not necessarily
imply a knowing and intentional act. Perhaps one
might "employ," "hire," or "use" a person to
violate the controlled substance laws or to
assist in avoiding detection without criminal
intent (though we find it unnecessary to resolve
this question). But it seems to us impossible to
take the next step, which is to "induce" or
"entice" a person to take those actions, without
the necessary scienter. The ideas of purpose,
knowledge, and intent are inherent in those
words. We are therefore satisfied that this is
not one of those cases in which the indictment is
"so obviously defective as not to charge the
offense by any reasonable construction," and we
therefore reject Moore’s and Ellis’s argument
that Counts 3 and 4 (and others they say are
dependent on them) must be dismissed.
b. Sufficiency of Evidence: sec.sec. 848,
861
(1) CCE conviction, sec. 848. Moore next
argues that the evidence was insufficient to
support his convictions under the CCE statute,
sec. 848, and under the statute prohibiting the
use of a minor, sec. 861. We disagree with the
government that Moore (and Wilson) waived or
forfeited this argument; their motions under Fed.
R. Crim. P. 29(c) for judgment or acquittal or
new trial, while a bit on the general side, were
enough to preserve the argument. United States v.
South, 28 F.3d 619, 623 (7th Cir. 1994).
Specifically, Moore argues that (1) there was
no direct evidence that he was engaged personally
or indirectly as a supervisor in three or more
illicit transactions, and that his convictions
for the predicate offenses were based solely on
the liability theory recognized by Pinkerton,
supra; (2) the government proved only that three
of the Regents working under him were involved in
drug sales and transactions, and thus his
conviction may rest impermissibly on the
inclusion of innocent supervisees; and (3) the
court erred in refusing to instruct the jury on
Moore’s defense that he had withdrawn from the
conspiracy.
We see no merit in the latter two points. Moore
is wrong to assume that his CCE conviction could
rest only on his supervision of five of the eight
people the government named as his subordinates.
On this record, the jury easily could have found
that he acted in concert with numerous
individuals. Evidence in the record showed that
the GDs were a huge organization, that he was a
GD Governor, that GD Governors had several
hundred subordinates, and that many of those
subordinates were involved in drug trafficking.
That offers ample support for the jury’s verdict.
As for withdrawal, Moore underestimates the
instructions the court did give. Under those
instructions, the jury was told that it could
consider "evidence [of Moore’s demotion from
Governor] as it bears on [Moore’s] liability for
the acts of the conspiracy committed after that
time." The substantive counts on which the jury
convicted Moore (5, 6, and 7) all refer to
conduct from 1993, which was before Moore’s early
1994 demotion.
As we recently had occasion to reiterate, under
Pinkerton "a coconspirator may be held criminally
liable for the foreseeable overt acts of others
in furtherance of a conspiracy." United States v.
Frazier, 213 F.3d 409, 416 (7th Cir. 2000). The
theory rests essentially on agency concepts.
Before Pinkerton can be applied, it is of course
necessary to show that a conspiracy existed, that
the defendant joined the conspiracy, that the
other actor was also part of the conspiracy, and
that the overt act was both foreseeable and in
furtherance of the conspiracy. At that point,
however, like the Three Musketeers, it’s all for
one and one for all. It is possible that a low-
level street dealer might not be able to foresee
all of the actions of the ringleaders of the
conspiracy, and that people out on different
"spokes" of the conspiratorial wheel might
similarly be unaware of the role others are
playing. As applied to Moore, however, these
concerns do not arise. Pinkerton liability
applies in general to conspiracies and CCEs,
United States v. Graewe, 774 F.2d 106, 108 (6th
Cir. 1985), and the record showed countless overt
acts of other members of the GDs that were
foreseeable to Moore and that were in furtherance
of the enterprise.
(2) Use of minor convictions, sec. 861. As an
evidentiary matter, Moore argues that there was
no evidence that any of the defendants had
personally employed or used a minor to carry out
drug activities, that there was no evidence that
a minor worked in his territory, and that his
conviction was based solely on an impermissible
theory of global responsibility (i.e. that he was
guilty because he was a GD and because the GDs
often used minors to sell drugs). Even the
government points to no evidence indicating that
Moore personally used minors in the forbidden
ways. It argues instead that the GD drug
conspiracy did so regularly. Robert Crawford, for
example, joined the GDs when he was 12 years old
and was selling drugs by the time he was 16.
Vincent Martin, Moore’s assistant governor, used
minors to cover his drug spots. The GDs liked to
use minors for a variety of purposes (including
also providing security for the leaders) because
they knew or believed that minors would be
treated more leniently by law enforcement
authorities if they were caught. We agree with
the government that this is enough to show at
least vicarious liability for the use of the
minors. See United States v. Davis, 154 F.3d 772,
786 (8th Cir. 1998), cert. denied, 525 U.S. 1169(1999). The jury reasonably could infer that
Moore, as a high official in the organization,
knew about this use in general, that it was
reasonably foreseeable to him, and that it
assisted the enterprise.
c. Motion for Severance
Before the trial, Moore moved unsuccessfully to
have his trial severed from that of Poteete. We
review the denial of such a motion for abuse of
discretion. Zafiro v. United States, 506 U.S.
534, 541 (1993). Under Fed. R. Crim. P. 8(b),
multiple defendants may be tried together if they
participated in the same transactions
constituting the offense. On the other hand, Fed.
R. Crim. P. 14 provides that if a defendant will
be prejudiced by joinder of offenses or
defendants, the court may grant a severance.
Moore tried to show prejudice from the joinder of
his case with Poteete’s in two ways: first, he
claimed that Poteete’s defense was inconsistent
with Moore’s innocence, and second, the joint
trial meant that Moore would be unable to
confront Poteete, in violation of his Sixth
Amendment rights.
One of Moore’s defenses at trial was that he
withdrew from the conspiracy after he was
stripped of his rank of Governor for brutally
violating (i.e. punishing) Poteete, who was then
one of his Regents. As part of his defense, Moore
wanted to call Poteete to the stand to testify
that the violation never occurred. Poteete,
however, was defending himself on the ground that
Moore coerced him into joining the GD
organization, in part through the physical
beating. These circumstances do not show that the
district court abused its discretion. Indeed,
Moore’s defense is not really antagonistic to
Poteete’s. It was possible for the jury to
believe both that Moore coerced Poteete into
joining the GDs and that Moore later withdrew.
And in any event, even if there was some residual
inconsistency in the defenses, Zafiro holds that
"[m]utually antagonistic defenses are not
prejudicial per se." 506 U.S. at 538. Finally,
Moore has not shown that the denial of the
severance motion caused him to suffer actual
prejudice. He never showed that Poteete would
have testified at a separate trial (as he might
have done with an affidavit from Poteete), or
that he would have testified that Moore did not
beat him.
d. Use of Perjured Testimony
Moore argues that Stigler perjured himself about
the time when he was selling drugs for Pink. He
moved for a new trial on that basis, but the
district court denied his motion. We review this
decision for abuse of discretion. United States
v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995). The
alleged perjury was as follows. At the trial,
Stigler (a former GD member) testified about the
drug selling activities in a location known as
"Pink’s Alley," on 82nd Street in Chicago.
Stigler said that he began selling drugs there
two months after he and his family moved to 81st
Street and Ellis Avenue. At the trial, Stigler
said that the move took place at the beginning of
1993. Records from the Cook County Department of
Corrections, however, show that Stigler was
incarcerated there from November 30, 1992, to
February 19, 1993. A rap sheet from the Chicago
Police Department (CPD) further showed that
Stigler was arrested again on March 1, 1993, and
re-entered Cook County custody on March 3, 1993,
where he stayed until May 28th. Even then, he was
not released; instead he was turned over to the
Illinois Department of Corrections, in whose care
he remained until November 23, 1993.
These dates, Moore argues, show that Stigler
must have perjured himself when he testified that
he started selling drugs for Pink two months
after the beginning of 1993. His testimony
detailed exactly the way these sales occurred.
Moore argues in addition that the government must
have known about this perjury, because it had
access to the various rap sheets and
incarceration records that would have proven it.
We do not dispute the fact that Stigler’s
testimony may have been inaccurate, but that does
not necessarily make it perjured, and even if he
was lying, it does not necessarily show that the
government knew this. He could have mixed up his
dates, for example. The government notes that
when he was arrested in November 1992, he gave as
his address 82nd and Ellis, indicating that the
move may have been sooner than he estimated. In
addition, it is clear that he was twice arrested
selling drugs in or near "Pink’s Alley." (The
government has conceded that one of those arrests
was approximately two blocks away, not right at
the mouth of the alley, but we agree that this
discrepancy is inconsequential.) Finally, there
was enough independent evidence corroborating
Stigler’s testimony that the district court was
entitled to conclude either that it was not
perjured or, at the very least, the government
would have had no reason to think it was
perjured. That is enough, under Saadeh, to reject
this claim. See 61 F.3d at 523.
2. McCain
a. Motion to Suppress
Although the government argues that McCain
failed to object to the magistrate judge’s ruling
on his motion to suppress, our examination of the
record indicates that he did file an objection
(although the document itself is not here).
Rather than tarry on that point, we will consider
the merits of his challenge to the court’s denial
of the motion.
McCain was arrested on June 4, 1991, by
officers from the CPD. He claims that they lacked
probable cause to arrest him then, and thus that
his statements following that arrest should have
been suppressed. Testimony from a CPD officer
indicated that on June 4, he and other CPD
officers traveling in an unmarked squad car saw
a group of four men standing in a driveway near
a building. They knew the building was a gang
members’ gathering place, and they recognized one
of the men to be a gang member. They pulled into
the driveway, at which point McCain and three
other men dropped some ammunition to the ground
and tried to leave. All four were then arrested
for illegal possession of ammunition. The officer
testified that McCain was twice given his Miranda
warnings, once at the time of arrest and later at
the stationhouse. McCain contradicted this
statement, but the district court chose to credit
the officer’s statement. We see no reversible
error in this decision; it was up to the court to
decide whom to believe, and if the officer’s
account was true, there was plenty of probable
cause for the arrest.
Second, McCain complains that certain telephone
calls he made were improperly intercepted. The
court signed and issued a 30-day interception
order on July 6, 1994; that order was extended on
August 16, 1994, for another 30 days. The
extension was to end on September 14, 1994, at
12:25 p.m. The government agents shut down the
wiretap on September 15 at 12:00 p.m., and then
they applied for and received another 30-day
extension. The court signed that extension at
4:49 p.m., and the first call under it was
intercepted that day at 4:57 p.m. The calls about
which McCain is now complaining were intercepted
between 11:29 a.m. and 12:06 p.m. on October 15,
1994, the last day of this extension period.
His argument is meritless in light of the
language of the federal wiretap statute, which
provides that the "thirty-day period begins on
the earlier of the day on which the investigative
or law enforcement officer first begins to
conduct an interception under the order or ten
days after the order is entered. . . ." 18 U.S.C.
sec. 2518(5). According to the statute, the 30-
day period for the extension began to run on
September 15, 1994--the day of the first
interception. We think it most sensible to look
to Fed. R. Crim. P. 45(a) for guidance on the way
the statutory time period should be computed.
See, e.g., United States v. Sklaroff, 323 F.Supp.
296, 317 (S.D. Fla. 1971). Under that approach,
the first day of the 30-day period is not
included but the last is, and the order in this
case expired on October 15. Although one district
court has chosen not to apply Fed. R. Crim. P.
45(a) to the calculation of the 30-day period,
see United States v. Gangi, 33 F.Supp.2d 303, 309
(S.D. N.Y. 1999) (not applying Fed. R. Crim. P.
45(a) and including both first and last day in
calculation of 30-day period), the Third Circuit
interpreted the system in the same way we have
done. See United States v. Carson, 969 F.2d 1480,
1485 (3d Cir. 1992). We see no reason to create
a circuit conflict over this kind of mechanical
determination, especially when the general
methodology of the Rule is familiar (though we
note that we are not applying Rule 45 directly,
and thus that we are not necessarily
incorporating all of its details such as the way
to count weekends and holidays). The telephone
calls about which McCain is complaining were
intercepted within that time period, and so they
could be used in accordance with the statute.
Last, McCain argues that because the wiretap
was illegal, his arrest on October 15, 1994, was
also unsupported by probable cause (because the
arrest was based on information collected during
the wiretap). Because we have found no problem
with the wiretap, this argument falls with that
one.
b. Sufficiency of Evidence, sec. 848
McCain’s argument on this point, to the extent
that it differs from Moore’s, asserts only that
the jury should not have believed the trial
testimony of certain witnesses (Robert Crawford,
Christopher Robinson, and McKinley Hayden, in
particular). He also implies that it is
significant that he never personally visited
Larry Hoover at the Vienna Correctional Center.
The latter fact is irrelevant, and the former
argument asks us to re-do the jury’s job. That is
not our function. United States v. Johnson-Dix,
54 F.3d 1295, 1306 (7th Cir. 1995). There was
ample evidence to support McCain’s guilt under
sec. 848.
3.Ellis
a. Admission of Ellis’s Statements
Ellis’s motion to suppress concerned statements
he made while he was under arrest on December 7,
1994. A magistrate judge held a hearing on the
motion and recommended that the statements should
be admitted; the district court agreed after
reviewing the transcript of the hearing and the
report and recommendation. The dispute centers
around the question whether Ellis received proper
Miranda warnings when he was arrested on that
date at the time of his arrest and when he
arrived at the police station. Ellis concedes
that he received written warnings later, when he
was taken to the office of the United States
Attorney; there he signed a waiver and agreed to
become a cooperating witness (though he later
retracted that agreement).
This was a simple conflict in testimony that
the court resolved in favor of the police. The
officers testified that they administered oral
warnings, and Ellis denied that he did and
claimed that he asked to speak to an attorney and
was refused. Ellis also made a general allegation
of coercion. We agree with Ellis that some of the
reasons the magistrate judge offered for
believing the officers were not particularly
persuasive: the judge thought that the officers
would never have jeopardized such an important
investigation by being careless with Miranda, and
the judge also found it odd that Ellis waited a
year before executing his affidavit containing
the allegations of misconduct. The time lag is
easily explained, because Ellis was not arraigned
until November 21, 1995, and his affidavit
followed very shortly thereafter; the presumption
about police behavior we find troubling, but in
the end not enough to amount to reversible error.
The most important point was that the magistrate
chose to believe the testimony of the officers.
The district court had the full transcript of
that testimony before it, and it was able to
assess both accounts on its own. The magistrate
judge’s remark about the attention the officers
were probably paying to the investigation is not
enough to require reversal on this factual issue.
b. Sufficiency of Evidence: sec.sec. 848,
861
Ellis’s arguments on these points track those
of Moore, and we reject them for the same
reasons.
4.Wilson
a. Sufficiency of Evidence: sec.sec. 848,
861, 18 U.S.C. sec. 1956
Wilson’s arguments challenging the sufficiency
of the evidence to support his convictions under
the CCE statute, sec. 848, and under the minors
statute, sec. 861, also founder on the same
grounds as the same points did with Moore. Wilson
also claims that the evidence was insufficient to
support his conviction on Count 41 for money
laundering, in violation of 18 U.S.C. sec.
1956(a)(1)(B)(i). This subsection required the
government to prove that (1) the defendant knew
that the transaction involved the proceeds of
unlawful activities, and (2) that the transaction
was designed to conceal the unlawful nature of
the proceeds. See United States v. Jackson, 983
F.2d 757, 765 (7th Cir. 1993); see also United
States v. Griffin, 84 F.3d 912, 926-27 (7th Cir.
1996). The funds laundered need not be traceable
to a specific illegal transaction; it is enough
if the government shows that the transaction
involved some funds which were derived from some
illegal activity. See United States v. Jackson,
935 F.2d 832, 840 (7th Cir. 1991).
The government presented the following evidence
at trial: (1) a 1994 Chevrolet Astro Van was
purchased under the name of Wilson’s brother-in-
law; the brother-in-law paid $2,500 cash down and
financed the rest with a loan for $31,000 from
the First National Bank, using a loan application
with fraudulent information on it; (2) Wilson’s
brother-in-law lived in the same household with
the defendant; (3) Wilson often used the van; (4)
Wilson had over $12,000 in stereo equipment
installed in the van; and (5) payments on the car
loan and stereo equipment were all made with cash
or money orders.
The standard of review that applies to
sufficiency challenges to jury verdicts dooms
Wilson’s argument. We would have to find that no
rational jury could have seen the evidence as
this one did, taking all the evidence in the
light most favorable to the government and
drawing all permissible inferences in its favor.
United States v. Shorter, 54 F.3d 1248, 1254 (7th
Cir. 1995); United States v. FJ Vollmer & Co.,
Inc., 1 F.3d 1511, 1519 (7th Cir. 1993). At the
time Wilson was promoted to Governor in 1994, he
commented that he just wanted to make a quick
$100,000. This was right around the time when he
bought the van. Witnesses testified that Wilson
personally bought and sold drugs, so the jury
knew that he had illegal cash sloshing around
that could have been used. In addition, the false
information on the loan application permitted the
jury to infer that Wilson had something to hide
about the source of the funds he was going to use
for his payments.
No one would call this evidence overwhelming,
but that is not the standard the government must
meet once the jury has come to its decision. The
circumstantial evidence here could legitimately
have been interpreted by the jury to show money
laundering, and we therefore reject Wilson’s
challenge to his conviction on Count 41.
5.Pink
a. Use of Perjured Testimony
We have already considered this point in
connection with Moore’s challenge to the Stigler
testimony. Moore and Pink essentially briefed the
issue together, with most of the detail appearing
in Pink’s brief. For the reasons stated in our
discussion of Moore’s point, we find that Pink
cannot prevail on this issue either.
b. Ineffective Assistance of Counsel
Pink’s brief includes the argument that he
received constitutionally ineffective assistance
of trial counsel, because his lawyer did not
identify the inconsistency in the dates between
Stigler’s rap sheet and his trial testimony. Pink
alleges that this oversight fell below an
objective standard of reasonableness and was
prejudicial to him, as required by Strickland v.
Washington, 466 U.S. 668 (1984). He develops this
point, however, in a cursory two-page discussion
in his brief, most of which is devoted to a
description of what happened. We find this
insufficient to raise the point for direct review
and thus we decline to reach the issue. We note
as well that it is almost always undesirable to
try to raise effectiveness of counsel on direct
appeal, because the record normally needs the
kind of supplementation that can only occur in a
proceeding under 28 U.S.C. sec. 2255. See
McCleese v. United States, 75 F.3d 1174, 1178
(7th Cir. 1996).
III
Last, we address the remaining sentencing
issues raised by the individual defendants. (We
say "remaining" because the question whether sec.
848 sets forth sentencing factors or elements of
two offenses logically might belong here too.)
A. Moore
Moore reprises the perjured testimony argument
we have already discussed with respect to his
conviction in Part II.B.1.d., this time to
challenge his sentence. For the same reasons we
declined to find that Stigler’s testimony
infected the jury’s verdict, we find that it did
not infect the findings that formed the basis of
Moore’s sentence.
B. McCain
McCain raises two sentencing points specific to
his case. The first we can dispose of in a
sentence: he claims that U.S.S.G. sec. 2D1.1
violates his guarantee to equal protection
because of the 100:1 ratio it uses for crack
cocaine. This claim is meritless under our
decisions in United States v. Westbrook, 125 F.3d
996, 1010 n.16 (7th Cir. 1997), and United States
v. Booker, 73 F.3d 706, 710 (7th Cir. 1996) (per
curiam), to name just a few. The second concerns
the evidence that supported the drug quantities
that were attributed to him individually. He
complains that the court should not have given
him an offense level of 38 for Guidelines
purposes, because (1) Crawford’s testimony was
unreliable and contradicted some things he said
at Hoover’s trial, and (2) Hoover and Shell
controlled "Pink’s Alley," and thus the court
should not have attributed those sales to him.
The former was a credibility call, however, and
the latter overlooks the fact that "Pink’s Alley"
was within McCain’s territory. There was no
reversible error in McCain’s sentencing.
C. Ellis
We have already considered part of Ellis’s (and
the others’) arguments that the evidence was not
sufficient to support the mandatory life sentence
required by sec. 848(b). He also asserts that the
evidence showed neither that he was a principal
administrator, organizer or leader, nor that his
drug sales resulted in an offense level of 36-38.
There was ample evidence, however, to show that
he was a Governor, and we ruled in Jackson that
Governors count as principal actors even though
Hoover and the Board of Directors were above
them. See 207 F.3d at 919-20. The logic of
Jackson, even if not all of its details, applies
here as well to this part of sec. 848(b), and
Jackson directly governs his argument under
U.S.S.G. sec. 3B1.1.
As for the amount of drug sales, while we would
have preferred more detailed findings from the
district court explaining how it reached the
calculations it did (which gave Ellis a total
offense level of 43 on the substantive counts),
we are satisfied that the record as a whole
supports these findings. The relevant conduct
guideline, U.S.S.G. sec. 1B1.3(a)(1), requires
the court to take into account not only the
defendant’s personal conduct, but all other
quantities of contraband that were reasonably
foreseeable to him that were within the scope of
the joint criminal activity. Id., Application
Note 2. The district court knew this, it knew
what was reasonably foreseeable to the Governors,
and it knew how large the operations were. This
finding too can stand.
Last, Ellis says that the court should have
given him a criminal history category of I
instead of a II. At offense level 43, the
criminal history category makes no difference
anyway, because all history levels carry the same
Guideline sentence of life in prison. In
addition, Ellis’s argument is based on the fact
that one of his criminal history points was based
on an aggravated assault charge for which he
received six months’ supervision. He claims that
the record does not show that he pleaded guilty
to the charge, and thus that his supervision was
based on something less than an admission or
adjudication of guilt. We think he is probably
splitting hairs, because Illinois permits
supervision either on a formal plea of guilty or
a "stipulation by the defendant of the facts
supporting the charge," as well as upon a finding
of guilt. 730 ILCS 5/5-6-1(c). The stipulation
option appears to be at least as conclusive as a
plea of nolo contendere, however, and those pleas
are enough to show conviction of an offense for
purposes of U.S.S.G. sec. 4A1.2(a). In any event,
because the point made no difference to his
sentence, any error the court may have committed
was harmless.
D. Pink
Pink makes three arguments about his sentence,
in which he challenges (1) the enhancement he
received for use of a gun under U.S.S.G. sec.
2D1.1(b)(1); (2) the leadership enhancement he
received under U.S.S.G. sec. 3B1.1(b); and (3)
his criminal history calculation. Accepting his
first argument would require us to find that it
was not reasonably foreseeable to him that guns
were being used in the GD conspiracy. With all
respect, such a finding would be impossible to
make, even without taking into account the fact
that this is another issue we review only for
clear error. See United States v. Taylor, 111
F.3d 56, 59 (7th Cir. 1997). With respect to the
second argument, Pink asserts that the judge
should have made specific findings about which
participants were under his supervision. What the
court said instead, referring to "Pink’s Alley,"
was "That alley was running full blast with
people all over it and they were working for him,
and, however we get there, there’s ample evidence
to say five." The evidence supports the court’s
observation. Furthermore, sec. 3B1.1 also permits
the three-level increase if the defendant
"exercised management responsibility over the
property, assets, or activities of a criminal
organization." Id., Application Note 2. Pink
managed "Pink’s Alley" and thus qualified in this
way for the enhancement as well.
Last, Pink was assigned two criminal history
points for two separate 1984 state charges for
felony possession with intent to distribute
marijuana. Pink says that these convictions were
part of the same GD drug distribution conspiracy
at issue here. He notes that the GD conspiracy
allegedly began in the early 1970s, that the GDs
controlled the neighborhood where Pink committed
the earlier crimes, and that Pink was even then
in their "grasp." The government responds that
there is no evidence that Pink joined the GDs
before 1990 or so, that there is no evidence that
the earlier crimes took place in the same
geographical area as his crimes here, and that
the marijuana convictions were part of the same
plan as the GD conspiracy. The district court was
entitled to take the government’s view of the
evidence here. Indeed, Pink does not squarely
admit that he was a GD at the earlier time,
undoubtedly for good reason.
IV
In the end, therefore, we find no merit in any
of the arguments any of the defendants have
raised. This was a complex proceeding for all
concerned: the prosecutors, defense counsel, the
district court, and now us. We commend the
lawyers who were appointed to represent these
defendants for their vigorous efforts to do so.
For the reasons stated, however, we Affirm the
convictions and sentences of all seven
appellants.
/1 Counts 10, 28, and 38 were dismissed on the
government’s motion before trial. Convictions on
Count 1 were dismissed after the jury rendered
its verdict, as conspiracy is a lesser included
offense of the continuing criminal enterprise.