United States v. Mansoori, Bahman

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 99-1492, 99-3533, 99-3569
99-3570, 99-3623
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BAHMAN MANSOORI, MARK COX,
MOHAMMAD MANSOORI,
KENNETH CHOICE, and TERRY YOUNG,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 63—George W. Lindberg, Judge.
____________
ARGUED NOVEMBER 8, 2000—DECIDED AUGUST 29, 2002
____________
Before BAUER, ROVNER, and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. Appellants Kenneth Choice,
Mark Cox, Bahman Mansoori, Mohammad Mansoori, and
Terry Young were collectively convicted of conspiracy to
possess with intent to distribute cocaine, cocaine base and
heroin. Cox and Young were also convicted of possession of
cocaine with the intent to distribute; Mohammad Mansoori
was convicted of engaging in monetary transactions in-
volving funds derived from criminal activity; and Young
2 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
was convicted of money laundering. We affirm the appel-
lants’ convictions but, based on certain errors at sentencing,
vacate their sentences and remand for re-sentencing in
conformity with this opinion.
I.
On October 31, 1996, a drug transaction many months in
the planning finally came to pass. Several members of the
Chicago street gang, Traveling Vice Lords (“TVL”), who
were engaged in narcotics trafficking had organized a drug
deal that, unbeknownst to them, would be captured on
recorded telephone conversations obtained through court-
authorized wiretaps. On that date, TVL leader Terry Young
had arranged for TVL member Timothy White to purchase
a kilogram of cocaine for resale from Mark Clemons.
Young’s right-hand man, Kenneth Choice, was assigned to
transfer the cocaine from White to another TVL member,
Terry Bronson, who would keep it until Mark Cox came to
pick it up for resale on the street. Once Bronson was in
possession of the cocaine, the police began to follow his car.
A chase ensued that finally ended with Bronson crashing
his car into a garage and fleeing the scene of the accident
without the cocaine, which the police officers seized. Arrests
of the individuals who had participated in the narcotics
trafficking ensued.
The evidence at trial revealed that each of the appellants
participated in a conspiracy to distribute narcotics in a
different capacity. Mohammad Mansoori was not a member
of TVL, but along with his brother, Bahman, distributed
drugs and guns to Young. Young, Cox, and Choice were all
members of TVL. They used the gang to plan highly or-
ganized drug transactions that culminated in street-level
sales of cocaine and heroin at locations controlled by the
gang. Young, a high-ranking TVL member, was in charge of
the drug sales. Young obtained drugs and guns from
Mohammad and Bahman Mansoori and then distributed
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 3
both (the drugs for resale, and the firearms for protection)
among various members of the gang. He assigned other
gang members to certain locations where they carried out
their sales. Choice worked directly for Young within the
gang, picking up and delivering drugs for various TVL
members. Cox also worked directly under Young, managing
a large area of drug distribution locations.
Both Mohammad Mansoori and Young purchased prop-
erty with earnings from the drug enterprise. Mansoori
made several large cash payments to contractors for a house
he was having built in Highland Park. He had confessed to
an accountant and an IRS agent that he did not receive any
money from his legitimate enterprises. The police had also
stopped Mansoori and seized about $11,000 in cash made
from a suspected drug transaction. Young had purchased a
house through a nominee purchaser, Lovell Nabors. Al-
though Nabors signed a lease with purchase option for the
house, he used Young’s money to make the purchase and
understood that the house was actually Young’s. An IRS
agent testified that he did not think that Young could have
purchased the property with his legitimate sources of
income.
The jury convicted appellants of all charges, and this
appeal arises from the convictions and the lengthy sen-
tences that the district court imposed pursuant to those
convictions.
II.
A. Wiretap Order
On four occasions in late 1996 and early 1997, then-Chief
Judge Marvin Aspen of the Northern District of Illinois
entered orders authorizing the government to monitor
various telephone numbers which, the government believed,
the defendants were using to conduct their narcotics busi-
ness. The orders indicated that the conversations inter-
4 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
cepted from these telephone numbers were expected to
reveal:
(1) the identities of individuals possessing with intent
to distribute and distributing controlled substances;
(2) the locations where the controlled substances were
distributed and stored;
(3) the methods by which the controlled substances
were distributed and drug proceeds are distributed;
(4) the dates, times and manner of the transportation,
receipt, storage, distribution and delivery of the
controlled substances and proceeds;
(5) the nature and scope of the conspiracy; and
(6) the identities and roles of unidentified conspirators.
Appellants’ Joint Appendix (“App.”) 228-29, 237-38, 245-46,
254. Each order also compelled the government to minimize
(i.e., limit) the interception of conversations that did not
relate to the government’s investigation.
Monitoring of wire conversations must terminate im-
mediately when it is determined that the conversation
is unrelated to communications subject to interception
under Chapter 119, Title 18, United States Code. In-
terception must be suspended immediately when it is
determined through voice identification, physical sur-
veillance, or otherwise, that none of the named inter-
ceptees or any of their confederates, when identified,
are participants in the conversation unless it is de-
termined during the portion of the conversation al-
ready overheard that the conversation is criminal in
nature. . . .
App. 232, 241, 248-49, 257; see 18 U.S.C. § 2518(5). Con-
versely, however, the orders also permitted the individual
monitoring to spot check any minimized conversation to
ensure that the participants had not turned their discus-
sion to illicit matters within the scope of the investigation.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 5
(“If the conversation is minimized, the monitoring individ-
ual shall spot check to ensure that the conversation has not
turned to criminal matters.”). App. 232, 241, 249, 257-58.
Pursuant to these orders, the government intercepted
more than 3,500 telephone conversations. In order to
determine whether a given conversation fell within the
scope of the intercept order or instead concerned matters
unrelated to the investigation, the government would ini-
tially intercept the conversation for a period of two minutes.
If the monitoring individual determined that the conversa-
tion was beyond the scope of authorized surveillance, the
interception would cease at the end of the two-minute
period in compliance with the minimization requirement of
the wiretap orders.1 However, if that conversation lasted for
more than another minute or so, the monitoring individual
would re-intercept the conversation and perform a follow-up
spot check to confirm that the conversation had not pro-
gressed into the scope of authorized surveillance. In
practice, this meant that all telephone calls under two
minutes in length were intercepted (whether relevant to the
investigation or not) and that one or more two-minute
segments of longer conversations were also intercepted,
even when those conversations were irrelevant to the in-
vestigation. A summary prepared by the government in-
dicates that of all the calls intercepted: 565 conversations
were identified as criminal in nature and so were not
minimized; 1,791 conversations were not pertinent to the
investigation but were not minimized because they lasted
no more than two minutes; and another 366 were not
pertinent and exceeded two minutes in length, and of these
1
During minimization periods, the monitoring agent would stop
recording the conversation and turn the sound off in the intercep-
tion device.
6 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
nearly all (362) were minimized. R. 267 at 21.2
In advance of trial, the defendants moved to suppress all
of the intercepted conversations, contending that the gov-
ernment had not complied with the minimization require-
ment and, as a result, had unnecessarily and inappropri-
ately eavesdropped on a number of conversations that were
beyond the scope of its investigation. Judge Lindberg denied
the motion. Although the judge agreed that the government
had intercepted a number of conversations, or portions of
conversations, that were beyond the scope of the wiretap
orders, he did not believe that the government’s agents had
listened to more of the conversations than necessary in
order to determine that they were irrelevant:
[I]t is understandable that a fair amount of material
not pertinent to the investigation wound up being
intercepted in this investigation. Many of the conversa-
tions were under two minutes in length, and so did not
require minimization. The individuals conversing often
did so in an ambiguous, guarded, and possibly coded
manner so that more of the conversations had to be
intercepted to later sort out what in fact they were
talking about. The Government had evidence that
defendant Terry Young was the head of a major drug
ring justifying more extensive interception. And the
authorizing judge was supervising the electronic sur-
veillance in an ongoing manner, receiving reports on it
at ten day intervals.
R. 335 at 2. At trial, the government introduced approxi-
mately 300 of the tape recordings into evidence. Because
these recordings captured the defendants discussing nar-
2
These subtotals do not include certain intercepted communica-
tions, including calls that were placed to pagers, calls in which the
intended recipient was not reached, and conversations that took
place in Farsi.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 7
cotics transactions, they proved to be some of the most
direct and damning evidence in the prosecution’s arsenal.
On appeal, the defendants initially argue that the wiretap
orders, by virtue of the provision allowing periodic spot
checks of any minimized conversation “to ensure that the
conversation has not turned to criminal matters,” violated
their statutory and constitutional rights. Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. § 2510 et seq., includes a mandate that “[e]very
[intercept] order and extension thereof shall contain a
provision that the authorization to intercept . . . shall be
conducted in such a way as to minimize the interception of
communications not otherwise subject to interception under
this chapter . . . .” 18 U.S.C. § 2518(5). Although the in-
tercept orders in this case included a minimization require-
ment, the defendants believe that this provision of the
orders was rendered virtually meaningless as a result of the
orders’ additional provision that “the monitoring individual
shall spot check to ensure that the conversation has not
turned to criminal matters.” App. 232, 241, 249, 257-58
(emphasis added). They find the spot-check provision
problematic in two respects: (1) the provision imposed no
limits on the frequency or duration of spot checks; and (2)
because the provision referred broadly to “criminal matters”
rather than to the specific criminal activities for which
Judge Aspen had authorized interception, the orders
permitted the government to check each and every mini-
mized conversation for any discussion of criminal activity,
even criminal activity that was unrelated to the govern-
ment’s investigation.
Because the defendants did not make this particular
challenge below, our review is for plain error alone, see
United States v. Williams, 272 F.3d 845, 854-55 (7th Cir.
2001), cert. denied, 122 S. Ct. 1339 (2002), and we find no
such error in the terms of the order. Express limits on the
frequency and duration of spot checks may well be impracti-
cal, as neither the government nor the authorizing court
8 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
can know in advance how easy it will be for the monitoring
agent to discern whether any given intercepted conversa-
tion concerns a subject within the scope of the investigation
or not. A conversation may be short and to the point or long
and meandering; and a conversation may begin on a non-
pertinent topic but switch to a pertinent subject in short
order. Use of code language, which as the district judge
recognized is common among narcotics traffickers, can
make quick assessments of the pertinence of a conversation
difficult. So we cannot say that Judge Aspen erred when he
refrained from placing a one-size-fits-all limitation on either
the frequency or duration of follow-up spot checks or that
Judge Lindberg plainly erred when he declined to suppress
the results of the surveillance for want of such a limitation.
Nor do we think that the provision’s generalized reference
to “criminal matters” plainly rendered the spot-check
provision overbroad. When read in context with the other
terms of the wiretap orders, that language did not give the
government license to monitor all minimized conversations
for any mention of criminal activity, whether related to the
investigation or not. The orders specifically identified the
type of evidence that the authorized intercepts were
intended to capture. App. 228-29, 237-38, 245-46, 254.
Furthermore, the orders required the government to stop
monitoring a conversation “immediately” if the conversation
turned out not to constitute “communications subject to
interception under [Title III.]” App. 232, 241, 248, 257. The
orders also acknowledged that Title III allowed for the
interception and disclosure only of “those communications
relevant to the pending investigation . . . .” App. 232, 241,
248, 257. Indeed, the government’s instructions to its
monitoring agents noted that “[w]e do not have authoriza-
tion to overhear evidence concerning the commission or
planning of crimes other than those [specified previously in
the instructions] as illegal activities.” R. 267 Ex. A at 7; see
also id. at 3-4 (specifying illegal activities as to which
interception permitted). Notwithstanding the language of
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 9
the spot-check provision, then, the overall terms of the
orders made reasonably clear that the government was
permitted to check intercepted conversations solely for
discussions pertinent to the government’s investigation, the
nature and scope of which the face of the orders made clear.
Any impermissible overbreadth in the spot-check provisions
of the orders was not plain.
The defendants’ second challenge focuses on the adequacy
of the government’s efforts to comply with the minimization
requirement. What the minimization requirement means,
essentially, is that once the monitoring agent has had a
reasonable opportunity to assess the nature of an inter-
cepted communication, he or she must stop monitoring that
communication if it does not appear relevant to the govern-
ment’s investigation. In this case, the government’s instruc-
tions to the monitoring agents indicated that they could
listen to all calls involving one of the individuals named in
the instructions “for a reasonable time, usually not in ex-
cess of two minutes, to determine whether the conversation
concerns criminal activities.” Id. at 5.3 In practice, the
agents monitored the entirety of all calls under two minutes
in length (some 1,791 calls, 103 of which were in Farsi).
Moreover, calls in excess of two minutes that were deemed
non-pertinent after the initial two-minute assessment were,
per the instructions, periodically reassessed (again for up
to two minutes at a time) at intervals of at least one min-
ute. Id. at 5-6. So, theoretically, an agent could listen to the
first two minutes of a conversation, decide it was non-
pertinent, turn off the listening and recording devices for a
minute, then turn them back on and listen to the conversa-
tion for another two minutes, and so on—and in this way
3
The instructions authorized agents to listen to a conversation
for a period longer than two minutes if the nature of the conversa-
tion was not entirely clear but was possibly related to the subject
of the investigation. See R. 267 Ex. A at 5.
10 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
monitor as much as two-thirds of a non-pertinent conversa-
tion.4 The defendants argue that because the government’s
agents listened to each call for a period of two minutes to
determine initially whether or not the conversation fell
within the scope of the wiretap orders, and because they
performed periodic, two-minute spot-checks on minimized
calls, there was no real minimization in practice.
A court assessing the sufficiency of the government’s
efforts in this regard must ultimately decide whether the
steps that agents have taken to minimize the interception
of communications unrelated to the investigation were
objectively reasonable given the circumstances confronting
the agents. See Scott v. United States, 436 U.S. 128, 137, 98
S. Ct. 1717, 1723 (1978). Although the adequacy of the
government’s minimization efforts necessarily depends on
the facts of each case, relevant considerations include the
kind and scope of criminal enterprise that the government
was investigating, the thoroughness of the government’s
efforts to ensure that nonpertinent calls will be minimized,
the extent to which the government could have foreseen
that certain types of conversations would be innocuous and
thus subject to minimization, use of code, and the extent to
which the authorizing judge oversaw the interception
efforts. United States v. Quintana, 508 F.2d 867, 874-75 (7th
Cir. 1975); see also United States v. Charles, 213 F.3d 10, 22
(1st Cir.), cert. denied, 531 U.S. 915, 121 S. Ct. 272 (2000);
United States v. Bankston, 182 F.3d 296, 307 (5th Cir. 1999),
judgment rev’d on other grounds by Cleveland v. United
States, 531 U.S. 12, 121 S. Ct. 365 (2000); United States v.
Williams, 109 F.3d 502, 507 (8th Cir.), cert. denied, 522 U.S.
4The instructions did indicate that if conversations between the
subject and one or more other individuals were invariably in-
nocent, then subsequent conversations involving those conversa-
tions should no longer be monitored or recorded even on a spot
basis. See R. 267 Ex. A at 6 ¶ 10.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 11
917, 118 S. Ct. 303 (1997). “[W]here an investigation in-
volves a drug ring of unknown proportion, as in this case,
‘the need to allow latitude to eavesdroppers is close to its
zenith.’ ” Charles, 213 F.3d at 22, quoting United States v.
Hoffman, 832 F.2d 1299, 1308 (1st Cir. 1987). We review the
district court’s minimization assessment for clear error.
United States v. Moody, 977 F.2d 1425, 1433 (11th Cir.
1992), cert. denied, 507 U.S. 1052, 113 S. Ct. 1948 (1993);
Bankston, 182 F.3d at 306.
We are not inclined to view the government’s overall
approach to minimization in this case as insufficient. The
government was investigating what the district judge
described as a “major drug ring.” R. 335 at 2. Narcotics
traffickers are often aware that their conversations might
be overheard or intercepted, and so may choose their words
carefully. In this case, Judge Lindberg found that “[t]he in-
dividuals conversing often did so in an ambiguous, guarded,
and possibly coded manner . . . .” Id. Consequently, the
individuals monitoring such conversations cannot be ex-
pected to make snap judgments as to whether the subject of
the conversation is within the scope of the intercept order.
See Quintana, 508 F.2d at 874 (“It is all well and good to
say, after the fact, that certain conversations were irrele-
vant and [monitoring] should have been terminated.
However, the monitoring agents are not gifted with pre-
science and cannot be expected to know in advance what
direction the conversation will take.”) (internal quotation
marks and citations omitted). A number of other courts
have found that two to three minutes is a reasonable period
of time within which to make an initial judgment as to the
pertinence of a conversation. See United States v. Ozar, 50
F.3d 1440, 1448 (8th Cir.), cert. denied, 516 U.S. 871, 116 S.
Ct. 193 (1995); United States v. Homick, 964 F.2d 899, 903
(9th Cir. 1992); United States v. Willis, 890 F.2d 1099, 1102
(10th Cir. 1989); United States v. Losing, 560 F.2d 906, 909
n.1 (8th Cir.), cert. denied, 434 U.S. 969, 98 S. Ct. 516(1977); United States v. Armocida, 515 F.2d 29, 45 (3d Cir.),
12 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
cert. denied, 423 U.S. 858, 96 S. Ct. 111 (1975); see also
Bynum v. United States, 423 U.S. 952, 954, 96 S. Ct. 357,
358 (1975) (Brennan, J., dissenting from denial of certiorari)
(noting that brief calls—apparently those of less than three
minutes in duration—will generally not be subject to
minimization). Moreover, because conversations among
traffickers, as among others, may bounce among a variety
of topics, periodic spot-checking of minimized conversations
is not unreasonable either. See Ozar, 50 F.3d at 1448. Thus,
the general parameters under which the government con-
ducted the monitoring here were not inherently suspect.
Moreover, we note that the government in the course of its
electronic surveillance submitted periodic reports to Judge
Aspen, a circumstance that suggests it conducted the sur-
veillance in good faith. See Quintana, 508 F.2d at 875.
But whether, in practice, the government’s actual mini-
mization efforts were sufficient is not a point that we need
to resolve, ultimately. The adequacy of the government’s
minimization efforts typically cannot be determined in a
generalized fashion. See Scott, 436 U.S. at 140-41, 98 S. Ct.
at 1724-25. Yet the defendants have framed their challenge
in very broad terms. They appear to suggest, for example,
that it was unreasonable for monitoring agents to listen to
all calls for an initial two-minute period, apparently on the
assumption that a speedier assessment as to the pertinence
of the calls was possible in at least some instances. And,
indeed, perhaps some of the intercepted conversations did
lend themselves to simple and quick categorization as
pertinent or non-pertinent, while others required a full two
minutes or more to assess. See id. at 140-43, 98 S. Ct. at
1724-26; cf. Quintana, 508 F.2d at 874 (if a pattern of
innocent conversations emerges, agents should cease mon-
itoring such conversations; but such patterns will not
always be identifiable). The point is, however, that we
cannot know whether this is true without examining at
least a sampling of the intercepted calls. Likewise, whether
the agents performed spot checks at intervals that were too
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 13
frequent, and whether they listened for too long when they
made those checks, is not a question that can be answered
responsibly in the abstract. If, after a review of the inter-
cepts, the defendants believed that the government’s eaves-
dropping was too intrusive and that a greater degree of
minimization was warranted, then it was incumbent upon
them to identify at least a sample of intercepted calls that
proves their point. This they have not done. If the defen-
dants were to prevail on their challenge, the appropriate
relief likely would be to suppress any conversation or
conversations that were inappropriately monitored. See 18
U.S.C. § 2518(10)(a)(iii); Charles, 213 F.3d at 22 (partial
suppression of those conversations intercepted improperly
is the usual remedy for inadequate minimization efforts;
wholesale suppression of all intercepted conversations is
reserved for the “particularly horrendous case”), quoting
Hoffman, 832 F.2d at 1309; Ozar, 50 F.3d at 1448; see also
United States v. Baltas, 236 F.3d 27, 32 (1st Cir.), cert.
denied, 532 U.S. 1030, 121 S. Ct. 1982 (2001); United States
v. Dorfman, 542 F. Supp. 345, 394-95 (N.D. Ill. 1982),
judgment aff’d sub nom. United States v. Williams, 737 F.2d
594 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct.
1354, 1355 (1985). Judge Lindberg pointed out that the
defendants had not identified any particular conversation
that should have been minimized but was not or that
should have been minimized to a greater degree than it
was. R. 335 at 2. Even on appeal, the defendants do not
identify any such conversation. Nor do the defendants
identify any concrete harms resulting from the admission of
conversations which, in their view, should have been
suppressed for want of appropriate minimization. Conse-
quently, we have been deprived of the requisite basis for
assessing the government’s minimization efforts. For that
reason, we need not, in the end, reach the merits of the
minimization argument.
14 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
B. Anonymous Jury
On the government’s motion, and over the defendants’
objections, the district court decided not to disclose the
names or the home and work addresses of prospective and
empaneled jurors to the parties, the public, or the media—a
step that resulted in an anonymous jury. Judge Lindberg
had initially denied the government’s request for juror
anonymity, remarking that he did not “see any need for it.”
R. 750, 1/12/98 Transcript (“Tr.”) 27. After entertaining
further argument on the matter, however, the judge acceded
to the request. He cited the following circumstances in
support of his ruling: (1) the defendants were involved in
organized, violent street crime that had “elements of what
is traditionally called organized crime,” (2) with access to
some 200 firearms, the defendants had the “capacity to
harm jurors,” (3) allegedly, some of the witnesses and their
families had been threatened, (4) the defendants were
subject to lengthy terms of incarceration and stiff monetary
penalties if convicted, and (5) there would likely be press
coverage—“perhaps not extensive, but significant, public-
ity”—regarding the case. Id. at 116-17. “So it’s not the fact
that it’s a drug case or a firearms case,” the judge ex-
plained, “but it is the fact that there appears to be orga-
nized activity on the part of the defendants and their
associates and families that warrants the prophylaxis
of juror anonymity.” Id. at 117-18. Shortly before jury
selection commenced, Judge Lindberg disavowed any
reliance upon threats against witnesses and their fam-
ilies, explaining that his principal concerns about the
prospect of interference with jurors were based on his
experience with another trial involving the Gangster
Disciples, a gang unrelated to the Traveling Vice Lords.
R. 754-1, 1/20/98 Tr. at 6. This left the organized-crime
aspect of the case as the sole basis for the court’s decision
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 15
in favor of juror anonymity.5
In the midst of jury selection, defendant Young’s counsel
asked the court to give the members of the venire an
instruction indicating that their names and addresses were
being withheld for reasons other than their own safety, so
as to allay any suspicions among prospective jurors that
their anonymity might otherwise arouse and to thereby
minimize the potential prejudice to the defendants. See
United States v. Crockett, 979 F.2d 1204, 1216-17 (7th Cir.
1992), cert. denied, 507 U.S. 998, 113 S. Ct. 1617 (1993).
The court agreed to give an instruction to the effect that the
jurors’ identifying information was being withheld in order
to prevent the media from contacting them. R. 754-3,
1/22/98 Tr. 380. However, when the full venire was assem-
bled for final questioning, the judge neglected to give the
instruction, and the parties did not remind him to do so.
The defendants argue now, as they did below, that the
circumstances confronting the court did not warrant an
anonymous jury and that the court therefore abused its
discretion in empaneling such a jury. Noting that the dis-
trict court also failed to deliver an appropriate ameliorative
instruction, they contend that the defense was so prejudiced
by the anonymity as to necessitate a new trial. Although we
agree that the court abused its discretion in empaneling an
anonymous jury, see United States v. DiDomenico, 78 F.3d
294, 301 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S. Ct.
507 (1996) (decision to empanel anonymous jury reviewed
for abuse of discretion), in view of the district court’s careful
voir dire of prospective jurors and the overwhelming
5
In support of its request for an anonymous jury, the government
asserted that Young previously had “cloned” a pager belonging to
a Chicago gang crimes specialist in an effort to determine whether
the officer was investigating him and to ascertain the identities of
the officer’s informants. App. 266. Judge Lindberg never relied
upon this allegation as the basis for an anonymous jury.
16 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
evidence of the defendants’ guilt, we find the error harm-
less.
Empaneling an anonymous jury is an extreme measure
that is warranted only where “ ‘there is strong reason to
believe the jury needs protection.’ ” Crockett, 979 F.2d at
1215, quoting United States v. Paccione, 949 F.2d 1183,
1192 (2nd Cir. 1991), cert. denied, 505 U.S. 1220, 112 S. Ct.
3029 (1992). “An anonymous jury raises the specter that the
defendant is a dangerous person from whom the jurors
must be protected, thereby implicating the defendant’s
constitutional right to a presumption of innocence.” United
States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994), cert.
denied, 515 U.S. 1132, 115 S. Ct. 2558 (1995); see also
United States v. Sanchez, 74 F.3d 562, 564 (5th Cir. 1996);
United States v. Edmond, 52 F.3d 1080, 1090 (D.C. Cir.)
(per curiam), cert. denied, 516 U.S. 998, 116 S. Ct. 539(1995); United States v. Scarfo, 850 F.2d 1015, 1023-26 (3rd
Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263 (1988);
United States v. Thomas, 757 F.2d 1359, 1363-65 (2nd Cir.
1985), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 67 (1985),
and cert. denied, 479 U.S. 818, 107 S. Ct. 78 (1986). Juror
anonymity also deprives the defendant of information that
might help him to make appropriate challenges—in particu-
lar, peremptory challenges—during jury selection. DiDom-
enico, 78 F.3d at 301; Edmond, 52 F.3d at 1090.
Yet, neither the right to a presumption of innocence nor
the right to exercise peremptory challenges is a consti-
tutional absolute; each, at times, must yield to the
legitimate demands of trial administration and court-
room security so long as steps are taken to ensure that
the defendant receives a fair trial.
Id. A court weighing the need for an anonymous jury must
therefore balance the defendant’s interest in preserving the
presumption of innocence and in conducting a useful voir
dire against the jurors’ interest in their own security and
the public’s interest in having a jury assess the defendant’s
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 17
guilt or innocence impartially. United States v. Amuso, 21
F.3d 1251, 1264 (2nd Cir.), cert. denied, 513 U.S. 932, 115 S.
Ct. 326 (1994); accord Edmond, 52 F.3d at 1090. Factors
bearing on the propriety of an anonymous jury include the
defendant’s involvement in organized crime; his participa-
tion in a group with the capacity to harm jurors; whether he
previously has attempted to interfere with the judicial
process; the severity of the punishment that the defendant
would face if convicted; and whether publicity regarding the
case presents the prospect that the jurors’ names could
become public and expose them to intimidation or harass-
ment. Sanchez, 74 F.3d at 564, quoting United States v.
Krout, 66 F.3d 1420, 1427 (5th Cir. 1995), cert. denied, 516
U.S. 1136, 116 S. Ct. 963 (1996); United States v. Darden,
70 F.3d 1507, 1532-33 (8th Cir. 1995), cert. denied, 517 U.S.
1149, 116 S. Ct. 1449 (1996), and cert. denied, 518 U.S.
1026, 116 S. Ct. 2567 (1996); Edmond, 52 F.3d at 1091;
Ross, 33 F.3d at 1520.
We do not believe that the circumstances in this case
warranted an anonymous jury. Although the case did
involve elements of organized crime, “something more” than
the organized-crime label is required in order to justify
juror anonymity. As we explained in Crockett:
“[S]omething more” can be a demonstrable history or
likelihood of obstruction of justice on the part of the
defendant or others acting on his behalf or a showing
that trial evidence will depict a pattern of violence by
the defendant[ ] and his associates such as would cause
a juror to reasonably fear for his own safety.
979 F.2d at 1216, quoting United States v. Vario, 943 F.2d
236, 241 (2nd Cir. 1991), cert. denied, 502 U.S. 1036, 112 S.
Ct. 882 (1992). In this case, the district court made no
finding that the defendants had a history of intimidating
witnesses or otherwise obstructing justice or that they were
likely to do so in connection with this trial. Cf. DiDomenico,
78 F.3d at 301-02 (defendants were connected to organized
18 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
crime syndicate that had history of bribery and intimida-
tion); Edmond, 52 F.3d at 1091-92 (one of defendants in
narcotics conspiracy prosecution was also charged with
murder, other defendants were implicated in that murder
as well, and there was some evidence of planned and at-
tempted witness intimidation); Crockett, 979 F.2d at 1216(evidence indicated that one potential witness had been
murdered and that attempts had been made to influence or
intimidate other witnesses). True, the defendants may have
had the ability to intimidate jurors through associates who
were not incarcerated, but that is true of many defendants.
What demonstrates the need for jury protection is not
simply the means of intimidation, but some evidence in-
dicating that intimidation is likely. See, e.g., Darden, 70
F.3d at 1532-33; Ross, 33 F.3d at 1520-21; Vario, 943 F.2d
at 240, 241. No such evidence is present here. Nor is there
evidence that the defendants had engaged in a pattern of
violence unusual enough to cause jurors to fear for their
safety. Compare, e.g., Amuso, 21 F.3d at 1264-65 (indict-
ment alleged that defendant was responsible for crimes of
extreme violence, including murders of government wit-
nesses). Although the narcotics conspiracy in this case
embraced a large-scale, gang-related operation with ready
access to firearms, this is regrettably not uncommon in the
drug trade. See, e.g., United States v. Jones, 214 F.3d 836,
838 (7th Cir. 2000) (“guns are common in the drug trade”).
The government has pointed to no evidence of violence of
such a degree as to make this case unusual. The publicity
surrounding the case was by no means extensive. Similarly,
the fact that the defendants faced lengthy prison terms if
convicted is hardly unusual—this is almost always true
when a defendant has dealt in large quantities of narcotics.
In short, that the defendants had the ability and incentive
to threaten jurors, without additional evidence indicating
that they were likely to act on that ability and incentive,
was not enough to justify the unusual step of juror anonym-
ity.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 19
After a complete review of the record, however, we con-
clude that the error was harmless. We recognize that the
Fifth Circuit has suggested that an erroneous decision to
empanel an anonymous jury is not harmless where almost
none of the pertinent factors supported that decision, but in
so opining, that court left open the possibility that a harm-
less error analysis might be appropriate in a closer case.
Sanchez, 74 F.3d at 565. Notwithstanding our disagreement
with the district court’s decision, we believe this to be a
closer case than our colleagues on the Fifth Circuit con-
fronted in Sanchez. The conspiracy charged in this case did
take on elements of organized crime; the defendants and
their unindicted co-conspirators did use weapons and
violence in furtherance of the conspiracy; the defendants
faced very long prison terms upon conviction; and there had
been some pre-trial publicity regarding the case. Although
these circumstances were not, by themselves, sufficient to
justify an anonymous jury, they demonstrate that the
record was by no means devoid of a basis for concern for the
security of the jurors. At the same time, Judge Lindberg
conducted an extremely thorough voir dire of prospective
jurors in this case over the course of three and one-half
days. Juror anonymity is most concretely felt during the
selection of the jury, when the withholding of identifying
information makes it more difficult for the defense (and for
that matter the prosecution) to make intelligent decisions
as to which prospective jurors should be challenged or
stricken peremptorily. See DiDomenico, 78 F.3d at 301;
Crockett, 979 F.2d at 1216. A conscientious voir dire com-
pensates for this disadvantage by rooting out biases against
the defendant or as to the issues presented in the case. Id.
at 1216; see also Edmond, 52 F.3d at 1092-93; Ross, 33 F.3d
at 1520. The defendants have identified no aspect in which
the district court’s voir dire was wanting, and our own
review of the trial transcript satisfies us that the voir dire
was “searching and thorough.” Crockett, 979 F.2d at 1216.
In this way, the defendants’ right to an unbiased jury was
20 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
protected. Moreover, the court’s instructions to the jury
during both voir dire and the trial emphasized that the
defendants were presumed innocent and that the govern-
ment bore the burden of proving them guilty beyond a
reasonable doubt. See Crockett, 979F.2d at 1216; R. 350 at
5 ¶ 10; R. 351 at 5 ¶ 10; R. 352 at 5 ¶ 10; Tr. 15, 16, 5323.6
Potential prejudice would have been further alleviated
by an appropriate cautionary instruction regarding the
anonymity of the jury. See, e.g., Crockett, 979 F.2d at 1216-
17. However, despite Judge Lindberg’s expressed willing-
ness to give such an instruction, neither Young nor any of
the other defendants reminded him to do so. Consequently,
the defendants cannot properly complain about that omis-
sion now. See Varhol v. National R.R. Passenger Corp., 909
F.2d 1557, 1567-68 (7th Cir. 1990) (en banc) (per curiam);
Palmquist v. Selvik, 111 F.3d 1332, 1343 (7th Cir. 1997). In
view of the careful voir dire, together with what we believe
to be the overwhelming evidence of defendants’ guilt, we
can discern no concrete way in which the anonymous jury
deprived the defendants of a fair trial.
C. Admission of Officer Cronin’s Testimony
Over the objections of the defense, the district court per-
mitted Chicago Police Officer Michael Cronin, a gang spe-
6
Paragraph 10(j) of the questionnaire to which each of the pro-
spective jurors was asked to respond under oath contained the
following admonition:
Under the American system of justice every defendant is pre-
sumed innocent throughout the trial. Moreover, defendants
are not required to prove anything and are entitled to put the
government to its proof. Every defendant has an absolute
right not to testify and the exercise of this right cannot be
held against a defendant.
R. 350 at 5 ¶ 10; R. 351 at 5 ¶ 10; R. 352 at 5 ¶ 10 (emphasis in
original).
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 21
cialist, to give opinion testimony regarding the history,
leadership, and operations of the Traveling Vice Lords.
Cronin testified that the TVLs controlled narcotics distribu-
tion on the west side of Chicago by means of a series of
distribution loci known as “drug spots.” Tr. 1574.7 Cronin
went on to identify a number of locations that were, in his
opinion, controlled by the TVLs, to describe how a “drug
spot” operates, and to recount disputes between various
factions of the Vice Lords over drug turf. Tr. 1575-82.
Cronin was also involved in the investigation that culmi-
nated in this prosecution; and he testified as a fact witness
regarding surveillance in which he had participated, arrests
he had made, various items of evidence that had been
recovered, and to a statement that Cox made following his
arrest. Tr. 1585-1628.
Although the defendants do not dispute Cronin’s quali-
fications as a gang expert, they maintain that his testi-
mony as to the TVLs’ involvement in narcotics distribution
amounted to inadmissible hearsay that was prejudicial in
the sense that it related to a central issue in the case.
Whereas the defendants posited that their narcotics ac-
tivities reflected multiple, unrelated conspiracies, it was the
government’s theory that the defendants were involved in
a unitary conspiracy that used the TVL organization to
distribute cocaine and heroin. That theory was reflected in
the superseding indictment, e.g., R. 133 at 2-3, as well as
the prosecution’s opening and closing statements, Tr. 19-20,
4982. In the defense view, Cronin’s testimony as to the
operation of the TVL drug distribution network went
beyond the bounds of appropriate expert testimony, because
rather than helping the jury “to understand the evidence or
7
“A drug spot will be a certain area, usually a street corner, in
the middle of the block, where [gang members involved in nar-
cotics trafficking] control the street operation, where—where
individual packets [of drugs] are sold.” Tr. 1574.
22 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
to determine a fact in issue,” Fed. R. Evid. 702, “it simply
told them that if the defendants were associated with the
TVL, they were part of a unitary conspiracy.” Defendants’
Joint Opening Br. at 36.
The defendants argue alternatively that even if Cronin’s
testimony qualified for admission under Rule 702, its po-
tential for prejudicing the defense exceeded its probative
value and therefore it should have been excluded pursuant
to Federal Rule of Evidence 403. Non-expert, eyewitness
testimony regarding the nature and operation of the TVL
distribution network was perfectly comprehensible, the
defendants insist, and so there was no need for expert
testimony to help the jury understand this evidence. At the
same time, they argue, the prejudicial effect of Cronin’s
testimony was “immense.” Defendants’ Joint Opening Br. at
39. Given his dual role as both a fact and an opinion
witness, the defense postulates that the jury may have
failed to appreciate when Cronin was testifying to facts
based on his personal knowledge and when he was merely
offering his opinion, and consequently may have given his
opinions undue weight. This danger was particularly acute,
the defendants reason, in view of the fact that the only
eyewitness testimony concerning TVL operations came from
former drug dealers who had an obvious incentive to
cooperate with the government. Thus, the jury may have
improperly looked to Cronin’s opinions as “facts” which
corroborated the testimony of these less-than-upstanding
witnesses. Although the district court gave a standard
instruction admonishing the jury that it was not obliged to
accept the opinion testimony of experts, Tr. 5328-29, the
defendants point out that the instruction did not specifically
advise the jury that Cronin’s testimony regarding the
operation of the TVL narcotics distribution apparatus
constituted opinion, rather than fact, testimony.
We find no abuse of discretion in the district court’s de-
cision to permit Cronin to testify as an expert. The average
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 23
juror is unlikely to be familiar with the operations of
narcotics traffickers or of street gangs. See, e.g., United
States v. Anderson, 61 F.3d 1290, 1297 (7th Cir.) (drug traf-
ficking), cert. denied, 516 U.S. 1000, 116 S. Ct. 543 (1995);
United States v. Johnson, 28 F.3d 1487, 1496-98 & nn. 9, 10
(8th Cir. 1994) (drug trafficking and gangs), cert. denied, 513
U.S. 1098, 115 S. Ct. 768 (1995), and cert. denied, 513 U.S.
1195, 115 S. Ct. 1263 (1995). Cronin’s testimony supplied
the jury with useful background concerning the history and
structure of the TVLs, as well as with their involvement in
narcotics activities.
At the same time, Cronin’s testimony did not invite the
jury to conclude that membership in the TVLs equated with
participation in the charged conspiracy, as the defendants
suggest. We can finding nothing in Cronin’s testimony
which suggested that all TVL members were involved in
criminal activity generally or narcotics trafficking in par-
ticular. On the contrary, Cronin agreed on cross-examina-
tion that “membership in the Vice Lord Nation is not a
crime,” Tr. 1561, and that membership in a street gang
“does not necessarily indicate that you are involved in
illegal activities,” Tr. 1643. See also Tr. 1733. In the same
vein, the district court instructed the jury that “[I]t is not
illegal to be a member of or associated with the Traveling
Vice Lords.” Tr. 5325.
Nor do we think it likely that Cronin’s dual role as expert
and fact witness would have led the jury to be confused as
to which aspects of his testimony were opinions and which
were factual in nature. Although we have acknowledged
that there is a greater danger of undue prejudice to the
defendants when a witness testifies as both an expert and
a fact witness, United States v. Doe, 149 F.3d 634, 637 (7th
Cir.), cert. denied, 525 U.S. 914, 119 S. Ct. 260 (1998), we
have also indicated that a police officer may permissibly
testify in both capacities, United States v. Lightfoot, 224
F.3d 586, 588-89 (7th Cir. 2000), cert. denied, 532 U.S. 976,
24 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
121 S. Ct. 1611 (2001). The potential for prejudice in this
circumstance can be addressed by means of appropriate
cautionary instructions and by examination of the witness
that is structured in such a way as to make clear when the
witness is testifying to facts and when he is offering his
opinion as an expert. See United States v. Lipscomb, 14 F.3d
1236, 1242 (7th Cir. 1994); United States v. Foster, 939 F.2d
445, 453 (7th Cir. 1991). In this case, the government
structured its direct examination of Cronin in such a way as
to separate his opinions as an expert from his factual
observations as an occurrence witness, compare Tr. 1569-84
with Tr. 1586-1628; and both the objections that the defense
posed at the transition from opinion to fact as well as the
remarks that the district judge made in response to those
objections served to highlight the distinction, see Tr. 1586-
88. Cronin was also extensively voir dired by the defense as
to the basis for his opinions, see Tr. 1529-32, 1542-64, which
again made clear to the jury the distinction between the two
aspects of his testimony. Finally, the court reminded the
jurors that “the fact an expert has given an opinion does not
mean that it is binding upon you or that your are obligated
to accept the expert’s opinion as to the facts.” Tr. 5329.
Under these circumstances, we see no real possibility that
the jury may have been led to mistakenly credit Cronin’s
opinions as facts.
D. Jury Instruction—Conviction or Acquittal
After outlining the two principal elements of the conspir-
acy charge for the jury, the district court gave the following
pattern instruction:
If you find from your consideration of all the evidence
that both of these propositions [have] been proved
beyond a reasonable doubt with regard to the defendant
you are then considering, then you should find that
defendant guilty.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 25
If, on the other hand, you find from your consider-
ation of all of the evidence that either of these proposi-
tions has not been proved beyond a reasonable doubt as
to the defendant you are then considering, then you
should find that defendant not guilty.
Tr. 5331. The court repeated this same instruction with
respect to each count of the indictment. Tr. 5334, 5336-37,
5338-39.
The defendants argue that the language of this instruc-
tion was flawed to the extent that it advised the jury that
it “should” rather than “must” acquit a defendant if it found
that the government had not proved the elements of the
crime charged beyond a reasonable doubt. “Should,” in the
defendants’ view, is a permissive term, suggesting that the
jury had discretion whether or not to find a defendant not
guilty even if the government had not met its burden of
proof. Of course, if it is reasonably likely that the jury
understood the instructions to permit conviction on some-
thing less than proof beyond a reasonable doubt, it consti-
tuted reversible error. See Victor v. Nebraska, 511 U.S. 1, 6,
114 S. Ct. 1239, 1243 (1994). However, the defendants did
not object to the instruction in the district court, so we may
reverse only if the flaw in the instruction, if any, amounts
to plain error. E.g., United States v. Inglese, 282 F.3d 528,
536-37 (7th Cir. 2002).
Our opinion in United States v . Kerley, 838 F.2d 932 (7th
Cir. 1988), makes clear that the language at issue was not
plainly erroneous. In that case as in this one, the defendant
argued that the use of the term “should” gave the jury
license to convict the defendant even if the government had
not established his guilt beyond a reasonable doubt. We
flatly rejected that argument:
Least of the alleged trial errors is the judge’s having
instructed the jury that they “should” rather than
“must” acquit Kerley in the event the government had
26 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
failed to prove his guilt beyond a reasonable doubt.
“Must” is preferable; but it is hardly plausible that the
jury supposed that while they “should” acquit Kerley if
he was not guilty beyond a reasonable doubt, they
didn’t have to acquit him if they didn’t want to. Juries
know better than that. We add that the judge also said
that the jury “should,” not “must,” convict Kerley if they
found that he was guilty beyond a reasonable doubt. In
context, “should” was imperative—not hortatory—
throughout the instruction.
Id. at 940. Although the defendants suggest that the Su-
preme Court’s opinions in Sullivan v. Louisiana, 508 U.S.
275, 113 S. Ct. 2078 (1993), and Victor have undermined
our decision in Kerley, we disagree. The instruction at issue
here did not mis-describe the burden of proof, as was the
case in Sullivan, see 508 U.S. at 277-78, 113 S. Ct. at 2080-
81. The jury was properly informed that the government
was obliged to prove the defendants guilty beyond a rea-
sonable doubt. Tr. 5323. Moreover, the Court in Victor
described the constitutional question raised by flawed
language regarding the burden of proof as “whether there
is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient
to meet the Winship [reasonable doubt] standard. 527 U.S.
at 6, 114 S. Ct. at 1243; see In re Winship, 397 U.S. 358, 90
S. Ct. 1068 (1970). That is the very question we answered
in Kerley vis à vis use of the term “should”—and we found
it implausible that the jury believed acquittal was optional
if the government failed to meet its burden of proof. 838
F.2d at 940; see also United States v. Ray, 238 F.3d 828,
834-35 (7th Cir.), cert. denied, 532 U.S. 1045, 121 S. Ct. 2014(2001). Accordingly, we find no plain error in the language
of this instruction.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 27
E. Multiple Conspiracies Instruction
As we have noted, it was the defense theory in this case
that the defendants had not joined a unitary conspiracy but
at most had participated in a number of smaller, unrelated
conspiracies. The district court delivered the following
instruction on the subject of multiple conspiracies:
The indictment charges that the defendants partici-
pated in a single conspiracy to distribute illegal narcot-
ics.
Proof that there were multiple conspiracies is not
necessarily proof of a single conspiracy, nor is it neces-
sarily inconsistent with the existence of a single con-
spiracy.
If you do not find beyond a reasonable doubt that a
particular defendant was a member of any conspiracy,
you should find that defendant not guilty of Count 1
[the conspiracy charge].
If you find beyond a reasonable doubt that there was
one overall conspiracy as alleged in Count 1, and that
a particular defendant was a member of that conspir-
acy, then you should find that defendant guilty of
Count 1.
If you find beyond a reasonable doubt that there were
two or more conspiracies, and that a particular defen-
dant was a member of or aided and abetted one or more
conspiracies, you may find that defendant guilty of
Count 1, if you further find beyond a reasonable doubt
that this proven conspiracy was included within the
conspiracy alleged in Count 1.
If, on the other hand, the proven conspiracy is not
included within the conspiracy alleged in Count 1, you
should find the defendant not guilty of Count 1.
Tr. 5332-33. The defendants argue that this instruction
deprived them of their Fifth Amendment right to due
28 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
process, and to their Sixth Amendment right to trial by
jury, because although it required each juror to find that a
defendant had participated either in the conspiracy alleged
in the indictment or a lesser conspiracy included within the
charged conspiracy, it did not state that the members of the
jury must agree on which conspiracy the defendant had
joined.
As the defendants acknowledge, however, we approved a
virtually identical instruction in United States v. Wilson,
134 F.3d 855, 865 (7th Cir.), cert. denied, 525 U.S. 894, 119
S. Ct. 216 (1998). We noted:
[The instruction] informed the jury that, if it found that
a defendant was a member of a conspiracy that consti-
tuted a sub-part of the conspiracy charged in the
indictment, then it should find that defendant guilty.
The jury’s finding of guilt therefore concluded that the
[defendants] were members of a conspiracy and that, at
a minimum, this conspiracy was part of the single
conspiracy alleged by the Government.
Id. at 865. That the jurors were not informed they must
agree on exactly which conspiracy the defendant agreed to
join does not present a constitutional problem. Even if the
jurors were of different minds as to the precise parameters
of the conspiracy, the instruction required them all to agree
that the defendant joined a conspiracy that was within the
ambit of the conspiracy alleged in the indictment. In short,
with respect to the essential elements of the crime (the
existence of a conspiracy, and the defendant’s agreement to
join it), the instruction appropriately required unanimity.
See Richardson v. United States, 526 U.S. 813, 817, 119 S.
Ct. 1707, 1710 (1999).
Moreover, even if the instruction were defective as the
defendants suggest, the error was harmless. The evidence
overwhelmingly demonstrated that the defendants partici-
pated in a unitary conspiracy to traffic in narcotics, pursu-
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 29
ant to which Bahman and Mohammad Mansoori supplied
the drugs to Young, who in turn, with the assistance of Cox
and Choice, distributed them through a network of drug
spots.
F. Failure to Submit Drug Quantity to Jury
The district court sentenced defendants Young, Mo-
hammad Mansoori, Cox, and Choice to terms of life impris-
onment based on its finding that they conspired to distrib-
ute more than 150 kilograms of cocaine. See, e.g., R. 745-3,
Young Sentencing Tr. 35-37; R. 730, Cox Sentencing Tr. 21,
23-24; R. 748, Choice Sentencing Tr. 17-18. The various
subsections of 21 U.S.C. § 841(b)(1) set forth a number of
different minimum and maximum sentences depending on
the amount of drugs involved, and subsection (A) specifies
a maximum prison term of life for narcotics offenses in-
volving five or more kilograms of cocaine or one or more
kilograms of heroin. However, pursuant to the Supreme
Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), the indictment must allege, and a
jury must unanimously find, that the offense involves that
threshold amount before the court may sentence a defen-
dant to the life term authorized by section 841(b)(1)(A). See,
e.g., United States v. Smith, 241 F.3d 546, 547 (7th Cir.),
cert. denied, 122 S. Ct. 267 (2001). In the absence of a jury
finding, the default statutory maximum for cases in which
no particular quantity of narcotics is proven—the twenty-
year maximum provided for in section 841(b)(1)(C)—
applies.8 In this case, the jury was not asked to decide
whether the conspiracy involved any particular drug
amount; on the contrary, the court instructed the jury that
“[t]he Government does not have to prove the amount of
8
The district court sentenced Bahman Mansoori to a term of 170
months, which is of course below the default maximum of twenty
years. Accordingly, his sentence is unaffected by Apprendi.
30 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
controlled substances alleged in the indictment,” Tr. 5335,
but rather it need only determine that the offenses charged
in Count 1 (the conspiracy charge) and Count 2 (a substan-
tive charge of distribution against defendants Young and
Choice) involved “a measurable amount” of narcotics, id.Accordingly, the district court, which sentenced the defen-
dants before the Supreme Court decided Apprendi, erred in
imposing any sentence in excess of the default maximum of
twenty years. As this issue was not raised below, however,
the mistake must qualify as “plain” before the defendants
are entitled to relief. United States v. Nance, 236 F.3d 820,
823-24 (7th Cir. 2000), cert. denied, 122 S. Ct. 79 (2001).
Because we do not believe that the sentencing error
affected the fairness, integrity, or public reputation of the
proceedings below, see United States v. Johnson, 520 U.S.
461, 467, 117 S. Ct. 1544, 1549 (1997), we conclude that the
error does not constitute “plain” error. Having reviewed the
record, we are convinced that upon a properly worded
indictment, a properly instructed jury would have found the
defendants guilty of distributing the requisite threshold
quantities of narcotics. See Nance, 236 F.3d at 825-26. The
jury convicted the defendants on the conspiracy charge, and
the record leaves no doubt that the conspiracy involved the
distribution of far more than five kilograms of cocaine
and/or one kilogram of heroin. Indeed, the trial evidence
readily confirms the trial court’s finding that the defen-
dants who received life terms were responsible for the
distribution of at least 150 kilograms of cocaine. For ex-
ample, co-conspirator Billy Carter testified that in 1994 he
and Young had retrieved a twenty- to thirty-kilogram quan-
tity of cocaine from Mohammad Mansoori—whom Carter
knew as “Moe”—, which cocaine was then passed along in
five- or ten-kilogram quantities to other TVL members,
including defendants Cox and Choice. Tr. 690-97. Carter
said that he retrieved comparable quantities of cocaine
from Mansoori more than five times in 1994 and 1995. Tr.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 31
1052-53. Carter further testified that he alone was distrib-
uting three to five kilograms of cocaine per week in 1992,
and five to ten kilograms weekly in 1993 and 1994—which
yields a total of several hundred kilograms. Tr. 1119-22.9 In
a similar vein, Leslie Teague testified that he and co-
conspirator Andre Donaldson obtained about five kilograms
of cocaine per week from Young during the first few months
of 1994 for distribution in the Quad Cities area of Illinois.
Tr. 2090. (Carter testified that he and Choice delivered ten
kilograms of cocaine to Teague on one occasion in 1993 or
1994. Tr. 696-99.) The evidence concerning heroin distribu-
tion similarly confirms that the conspirators were dealing
in large quantities. TVL member Anthony Buchanan, for
example, who shared a drug spot with Carter, testified that
he obtained quantities of between 100 and 800 grams of
heroin from Mohammad Mansoori and his “runner” John
Hunt once or twice weekly in 1996. Tr. 1844-50. Carter
testified that he was distributing 100 grams of heroin per
day in that same year. Tr. 1117-18. Terry Bronson testified
that Choice had him deliver 2.4-gram “packs” of heroin
(twenty-four bags, each containing 0.1 gram of heroin) to
the Henry Horner Homes on a daily basis from February to
October 1996 (yielding a total of more than 500 grams). Tr.
342-43. Thus, the evidence before the jury consistently and
overwhelmingly demonstrated that the defendants were
distributing cocaine and heroin on a very large scale. In
view of that evidence, there can be no doubt that the jury
would have found that the offense involved the threshold
amount of five kilograms of cocaine and/or one kilogram of
heroin as necessary to authorize prison terms of life for
defendants Young, Mohammad Mansoori, Cox, and Choice.
See Nance, 236 F.3d at 826.
9
Carter, however, after pleading guilty and cooperating with the
government, was sentenced on a cocaine quantity of only 50 to 150
kilograms. See Tr. 1123-24.
32 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
G. Erroneous Life Sentences on Count Two
Count Two of the superseding indictment charged Young
and Choice (among others) with the distribution of one
kilogram of cocaine in the October 31, 1996 transaction
described at the outset of this opinion. R. 133 at 5. Pursu-
ant to 21 U.S.C. § 841(b)(1)(B)(ii), the maximum prison
term that could ever be imposed on this count was forty
years because the underlying conduct involved more than
500 grams of cocaine but less than five kilograms. The
district court, however, erroneously sentenced Young and
Choice to life terms on this count. The government concedes
the error. Gov. Br. 56 & n.28. Accordingly, we shall remand
the case to the district court for re-sentencing on this count.
Because the jury was not asked to determine whether the
defendants were responsible for distributing anything more
than a “measurable amount” of cocaine, Tr. 5335, in accord
with Apprendi the district court on remand may not impose
a sentence in excess of twenty years on Count 2. See 21
U.S.C. § 841(b)(1)C). It may well be true, as the Govern-
ment contends, that the jury inevitably would have found
Young and Choice responsible for distributing a kilogram of
cocaine, thus triggering the forty-year maximum, had it
only been asked to do so. That point would only be relevant,
however, if we were deciding whether a forty-year term,
imposed without the quantity finding that Apprendi re-
quires, amounted to harmless error. In this case, because
the district court imposed a life term on Count 2 (a term
that would be erroneous regardless of whether the jury had
found the defendants named in this count responsible for a
kilogram quantity of cocaine), re-sentencing is mandated.
When it imposes the new sentence, the district court will of
course be obliged to honor Apprendi. Because the jury did
not render a quantity finding, as Apprendi requires, the
maximum term that the district court may impose on
remand is the default maximum term of twenty years
specified in section 841(b)(1)(C).
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 33
H. Erroneous Special Assessments
The district court imposed special assessments of $100 as
to Mohammad Mansoori on Counts 3 through 13 and Young
on Count 14. Because these monetary offenses were com-
mitted prior to April 24, 1996 (see R. 133 at 6, 8), when the
applicable special assessment was raised from $50 to $100,
only a $50 special assessment could be imposed. E.g.,
United States v. Gricco, 277 F.3d 339, 363-64 (3rd Cir. 2002);
United States v. Prather, 205 F.3d 1265, 1272 (11th Cir.),
cert. denied, 531 U.S. 879, 121 S. Ct. 188 (2000). Accord-
ingly, we shall also remand for re-sentencing in this regard
as well.
I. Admissibility of Cox’s Post-Arrest Statement
After a federal grand jury indicted Cox and his co-defen-
dants, a federal warrant was issued for his arrest. At 10
p.m. on a Saturday evening, Chicago police officers arrested
Cox on that warrant. Chicago police officer and gang
specialist Michael Cronin (who had participated in the
investigation that culminated in Cox’s arrest) interviewed
Cox later that evening and obtained a waiver of Cox’s
Miranda rights. Tr. 1607-13. Cox eventually admitted to
Cronin that he was a high-ranking TVL member who was
involved in the distribution of cocaine on Chicago’s west
side. Tr. 1609-12. The Chicago Police Department has
special rules and procedures that apply when an individual
is arrested pursuant to a warrant issued by another jur-
isdiction. See Tr. 1612-13. Apparently because Cox’s arrest
took place on the weekend, it took some time to comply
with these rules, and Cox was not turned over to federal
authorities until the following Monday morning, at 7:00
a.m. Cox arrived at the Dirksen Federal Building in
Chicago at approximately 7:30 a.m. Apparently, when the
government inquired into the possibility of bringing Cox
before a judicial officer, Judge Lindberg’s chambers in-
34 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
structed the government to bring him before Judge Lind-
berg that afternoon at 1:30. At approximately 8:30 a.m.,
Officer Robert Grapenthein (another Chicago police offer
and gang specialist who had been detailed to the FBI gang
task force and who had participated in the investigation of
this case) played for Cox some of the incriminating tapes
produced by the government’s surveillance and then pro-
ceeded to interview him. Cox again waived his Miranda
rights and again confessed his involvement with the TVL
and with narcotics distribution. Tr. 1446-53, 1456-58. Not
until 1:30 p.m. that afternoon, some 39 hours after his
arrest, did Cox appear before a judicial officer (Judge Lind-
berg) for arraignment. R. 259.
Because Cox made his second confession more than thirty
hours after his arrest and before the government brought
him before a judicial officer, Cox moved to suppress the
confession. In relevant part, Federal Rule of Criminal Pro-
cedure 9(c)(1), which deals with the execution of federal
warrants, requires that an individual arrested on a warrant
be taken before a judicial officer promptly:
The officer executing the warrant shall bring the ar-
rested person without unnecessary delay before the
nearest available federal magistrate judge or, in the
event that a federal magistrate judge is not reasonably
available, before a state or local judicial officer autho-
rized by 18 U.S.C. § 3041.
(Rule 5(a) sets forth a similar requirement for an arrest
pursuant to a warrant issued upon a complaint.) In
McNabb v. United States, 318 U.S. 332, 344-47, 63 S. Ct.
608, 614-16 (1943), and again in Mallory v. United States,
354 U.S. 449, 455-56, 77 S. Ct. 1356, 1360 (1957), the Su-
preme Court held that unreasonable pre-interview delays
in arraigning the defendants (two days in McNabb, seven
hours in Mallory) rendered the confessions made on the
heels of and as a result of those delays inadmissible at trial.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 35
In the wake of Mallory, Congress established a six-hour
“safe harbor” for post-arrest statements:
In any criminal prosecution by the United States . . . a
confession made or given by a person who is a defen-
dant therein, while such person was under arrest or
other detention in the custody of any law enforcement
officer or law enforcement agency, shall not be inadmis-
sible solely because of delay in bringing such person
before a magistrate judge or other officer empowered to
commit persons charged with offenses against the laws
of the United States . . . if such confession is found by
the trial judge to have been made voluntarily and if the
weight to be given the confession is left to the jury and
if such confession was made or given by such person
within six hours immediately following his arrest or
other detention . . . .
18 U.S.C. § 3501(c). A voluntary confession that occurs
within this six-hour “safe harbor” is therefore admissible
notwithstanding a delay in bringing the defendant before a
judicial officer. This provision embraces Cox’s first confes-
sion (to Cronin) but not his second (to Grapenthein), which
occurred more than thirty hours after his arrest but before
he was arraigned. A voluntary confession that occurs after
the six-hour safe-harbor period may be inadmissible pur-
suant to McNabb, Mallory, and their progeny. Exclusion is
not automatic but discretionary, turning on “a congeries of
factors, including such elements as the deterrent purpose of
the exclusionary rule, the importance of judicial integrity,
and the likelihood that admission of evidence would
encourage violations of the Fourth Amendment.” United
States v. Gaines, 555 F.2d 618, 623-24 (7th Cir. 1977); see
also United States v. Spruill, 296 F.3d 580, 590 (7th Cir.
2002).
The district court denied Cox’s motion to suppress for two
reasons. First, the court reasoned that because Cox had
been in federal custody for less than six hours at the time
36 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
he gave his statement to Grapenthein, his confession fell
within the safe harbor notwithstanding the period of time
he spent in the custody of the Chicago police before he was
handed over to federal officials. R. 332. Second, the court
found that Cox had not been detained in state custody as
long he was in order to help federal officials to obtain a
confession from him. Id.; cf. Gaines, 555 F.2d at 625 (if
defendant had shown that federal agents colluded with local
police to keep in custody in order to obtain a confession
from him, suppression would be required).
The first of these reasons was erroneous as a matter of
law. As the government rightly points out, the six-hour
clock begins to run for purposes of section 3501(c) when the
individual is arrested or otherwise detained for a violation
of federal law, not when he is taken into federal custody.
United States v. Alvarez-Sanchez, 511 U.S. 350, 358, 114 S.
Ct. 1599, 1604 (1994); compare United States v. Rowe, 92
F.3d 928, 932-33 (9th Cir. 1996) (defendant initially taken
into custody on state charge), cert. denied, 519 U.S. 1100,
117 S. Ct. 785 (1997). Although it was the Chicago police
who arrested Cox, they did so pursuant to a federal arrest
warrant. Consequently, the statutory clock began to run on
Saturday evening, when Cox was arrested, not on Monday
morning, when he was transferred to federal custody. As
the clock had been running for approximately thirty-six
hours by the time Cox confessed his culpability to Grapen-
thein, his confession is not protected by the statutory safe
harbor.
We must, consequently, consider the reasons for the ad-
ditional delay (that is, beyond the six-hour safe-harbor
period) in bringing Cox before a judicial officer and whether
that delay was reasonable, along with the other factors
cited by Gaines. The government notes that the bulk of the
delay was due to the fact that Cox was arrested on a
Saturday evening by the Chicago police, whose rules re-
garding arrests on warrants issued by other jurisdictions
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 37
required additional processing time before he was released
into federal custody. Once Cox was turned over to federal
officials, the government notes, it inquired about bringing
him before a judicial officer and was instructed by Judge
Lindberg to present him for arraignment at 1:30 p.m.
Further, there are no allegations that Cox was in any way
subject to the kind of “third degree” interrogation tactics
that concerned the Supreme Court in McNabb. Finally, in
view of the district court’s finding that the delay in arraign-
ing Cox was not due to a desire to secure his confession, the
government argues that exclusion of his statement to
Grapenthein would not serve the deterrent purposes of the
exclusionary rule.
Although we accept the district court’s finding that there
was no coordinated effort between state and federal officials
designed to keep him in state custody for a prolonged period
in order to facilitate his confession,10 we are nonetheless
troubled by the decision to interview him for a second time
well outside of the safe-harbor period and before he was
finally arraigned. By the time Grapenthein interviewed Cox
on Monday morning, the government was aware that Cox
had been in custody for more than thirty hours, that he had
not yet seen a judicial officer, and that he would not be
arraigned until that afternoon. Nonetheless, the govern-
ment evidently made a deliberate decision to interview Cox
10
As Cox points out, the district court did not hold an evidentiary
hearing in order to explore the circumstances surrounding his
arrest and detention, the interrogations by Cronin and Grapen-
thein, and, in particular, the reasons for the delay in bringing Cox
before a judicial officer. Still, Cox has not challenged the reasons
that the government has articulated for the delay in his arraign-
ment, nor has he alleged that there are facts other than the delay
(e.g., coercive interview tactics) which bear on the admissibility of
his confession. Consequently, we have no reason to question the
district court’s finding that the delay was not motivated by a
desire to extract a confession from Cox.
38 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
at that time, rather than wait until he had been arraigned.
Perhaps the government, but for the district court’s decision
to have Cox arraigned that afternoon, would have brought
him before a duty magistrate that morning (certainly there
was one available) and interviewed him following the
arraignment. But once instructed by the district court to
present Cox that afternoon, and in the absence of any
apparent exigency necessitating an immediate interview,
the advisable course would have been to put the interview
on hold until Cox had been arraigned. The prompt-appear-
ance requirement serves to protect the defendant’s rights
and to interpose a check on law enforcement zeal by
ensuring the timely intervention of a judicial officer who
can confirm that the defendant has been advised of his
rights, that he has been detained on probable cause, and so
on. See McNabb, 318 U.S. at 343-44, 63 S. Ct. at 614-15.
That purpose was not served by the decision to interview
Cox at a point when there had already been a substantial
delay in bringing him before a judicial officer and his be-
latedly scheduled appearance was but a few hours hence.
We impute no actual motives to the government that were
malevolent; but objectively the decision to proceed with the
interview on Monday morning was unreasonable, and in the
absence of a more developed record as to the circumstances
surrounding that decision, it gives rise to an impression
that the government was attempting to take advantage of
the delay in arraigning Cox. Under these circumstances, the
decision to elicit a second statement from Cox appears
improper. At the same time, exclusion of this statement
would serve efficaciously the deterrent purposes of the
exclusionary rule by encouraging the government to bring
an arrested individual before a magistrate or judge more
promptly. See generally Arizona v. Evans, 514 U.S. 1, 10-11,
115 S. Ct. 1185, 1191 (1995); United States v. Leon, 468
U.S. 897, 918-20 & n.20, 104 S. Ct. 3405, 3418-19 & n.20
(1984); see also, e.g., McNabb, 318 U.S. at 344-45, 63 S. Ct.
at 615; United States v. Wilbon, 911 F. Supp. 1420 (D. N.M.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 39
1995). Based on the record before us, we therefore find that
the admission of Cox’s second confession (to Grapenthein)
was erroneous; that confession should have been sup-
pressed.
Under the circumstances, however, we find the error to be
harmless. As we have noted, Cox confessed his involvement
in narcotics distribution not only to Grapenthein, but to
Cronin, who interviewed him on Saturday evening shortly
after his arrest, within the six-hour safe harbor. Cox’s first
confession was recounted by Cronin at trial, and Cox does
not contest the admissibility of that confession. The first
confession overlapped in material respects with the second.
Compare Tr. 1443-58 with Tr. 1607-13, 1637-41. Indeed, in
objecting to Cronin’s testimony regarding the first confes-
sion (as it turned out, Cronin testified after Grapenthein
did), Cox’s counsel argued that Cronin’s testimony was
unnecessary to the government’s case in view of the overlap.
Tr. 1516-17. Accordingly, the second confession, although
inadmissible for the reasons we have discussed, did not
unduly prejudice Cox. See Boles v. Foltz, 816 F.2d 1132,
1135-36 (6th Cir.) (even if it was error to admit second
confession elicited improperly after defendant had re-
quested attorney, error was harmless because, inter alia,
second confession was cumulative of first), cert. denied, 484
U.S. 857, 108 S. Ct. 167 (1987).
J. Cox’s Post-Arrest Statement and Young’s Confrontation
Rights
Among other things, Cox’s post-arrest confession to
Grapenthein indicated that he was assigned responsibility
for cocaine sales in a particular area of Chicago by “mem-
bers within the Traveling Vice Lords that were above him.”
Tr. 1451. Grapenthein, of course, repeated this statement
at trial. Id. Before Grapenthein testified, the court in-
structed the jury to consider his testimony about Cox’s
40 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
statement “only in connection with the Government’s case
against Defendant Mark Cox.” Tr. 1443. Again in the final
jury charge, the court admonished the jury to consider Cox’s
confession “only with regard to the Defendant Mark Cox
and not against any other defendant.” Tr. 5326. Young
nonetheless argues that the admission of Cox’s confession
ran afoul of Bruton v. United States, 391 U.S. 123, 88 S. Ct.
1620 (1968). Young reasons that Cox’s reference to the TVL
members “above him” necessarily inculpated Young, be-
cause Young was the only indicted TVL member who was
superior to Cox in the gang’s hierarchy. Young asked the
district court to declare a mistrial on the basis of Bruton,
but the court denied the motion.11
The admission of Cox’s post-arrest statement did not run
afoul of Bruton. Bruton held that the admission into evi-
dence of a co-defendant’s confession violates the defendant’s
rights under the Confrontation Clause of the Sixth Amend-
ment when the confession incriminates the defendant as
well. 391 U.S. at 135-36, 88 S. Ct. at 1627-28. However, as
the Court’s subsequent opinion in Richardson v. Marsh
makes clear, the co-defendant’s confession must implicate
the defendant directly to give rise to a Bruton violation. 481
U.S. 200, 208, 107 S. Ct. 1702, 1707-08 (1987). If the
confession incriminates the defendant only “when linked
with evidence introduced later at trial,” id. at 208, 107 S.
Ct. at 1707, then a limiting instruction confining the jury’s
consideration of the statement to the confessing co-defen-
11
It is not entirely clear from the trial transcript that Young
articulated the particular Bruton theory that he pursues now at
the time he moved for a mistrial in the district court. See Tr. 1455.
But the government has elected to address the merits of his
current Bruton theory rather than contend that he forfeited that
theory by failing to argue it below. The government has therefore
waived any contention based on forfeiture or waiver. See, e.g.,
United States v. Buchmeier, 255 F.3d 415, 419 (7th Cir.), cert.
denied, 122 S. Ct. 505 (2001).
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 41
dant likely will suffice to protect the defendant’s rights. Id.
at 208, 211, 107 S. Ct. at 1708, 1709; see also, e.g., United
States v. Chrismon, 965 F.2d 1465, 1471-73 (7th Cir. 1992).
That is the case here. Cox’s statement implicated Young
indirectly at best. Cox’s reference to persons “above him” in
the TVL hierarchy did not point unambiguously to Young.
Only in light of other evidence revealing Cox to have been
superior to Young in the TVL hierarchy might the jury have
inferred that Young was among the individuals that
assigned Cox his territory. Even then, the inference was not
inevitable—by referring to multiple TVL “members” who
gave him his authority, Cox did not purport to single out
any particular individual. Under the circumstances, the
district court’s instructions limiting consideration of Cox’s
confession to Cox alone was sufficient to protect Young.
K. Denial of Bahman Mansoori’s Motion to Sever
Bahman Mansoori asked the district court to sever his
trial from that of the other defendants. His argument then,
as now, was that the evidence against the other defendants
was much stronger than it was against him, and that he
faced a particular danger of the jury inferring guilt by
association in view of the fact that his brother Mohammad
played a key role in the conspiracy as the individual who
supplied narcotics to Young and there was also evidence
that another Mansoori brother was also involved in drug
trafficking. The district court denied the motion to sever,
reasoning that the jury was capable of assessing the guilt
or innocence of each defendant independently at a joint trial
and that severance would require the government to
duplicate much of its case at multiple trials. R. 742-1,
12/18/97 Tr. at 67-68; R. 301. We review the district court’s
decision for abuse of discretion. E.g., United States v.
Wilson, 237 F.3d 827, 835 (7th Cir.), cert. denied, 122 S. Ct.
97 (2001). In order to secure a new trial, the defendant
must demonstrate that the joint trial caused him “actual
42 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
prejudice,” i.e., that he was deprived of a fair trial by virtue
of the district court’s refusal to sever. Id.The district court did not abuse its discretion in denying
Bahman’s motion. As the government points out, Bahman
did not join the conspiracy until November 1996, and it is
his late joining that accounts for the fact that there was
less evidence regarding his participation than there was
against the other co-defendants. But the evidence leaves no
doubt that he was a full participant in the conspiracy once
he joined. A number of the tape recorded conversations
among members of the conspiracy reveal Bahman discuss-
ing various narcotics transactions, for example. John Hunt
also testified that he had picked up narcotics from Bahman
at Bahman’s apartment, and had dropped off payments
there as well. The cases affirming joint trials under such
circumstances, notwithstanding the different degrees of
involvement among various co-conspirators and the differ-
ent magnitudes of evidence against each defendant, are
legion. E.g., United States v. Smith, 995 F.2d 662, 671 (7th
Cir. 1993), cert. denied, 510 U.S. 1056, 114 S. Ct. 718(1994); United States v. Goines, 988 F.2d 750, 781 (7th Cir.),
cert. denied, 510 U.S. 887, 114 S. Ct. 241 (1993), and cert.
denied, 510 U.S. 982, 114 S. Ct. 483 (1993), and cert.
denied, 510 U.S. 985, 114 S. Ct. 558 (1993); United States
v. Cochran, 955 F.2d 1116, 1120-21 (7th Cir.), cert. denied,
506 U.S. 972, 113 S. Ct. 460 (1992); United States v. Pace,
898 F.2d 1218, 1245-46 (7th Cir.), cert. denied, 497 U.S.
1030, 110 S. Ct. 3286 (1990), and cert. denied, 498 U.S. 878,
111 S. Ct. 210 (1990); United States v. Briscoe, 896 F.2d
1476, 1516-17 (7th Cir.), cert. denied, 498 U.S. 863, 111 S.
Ct. 173 (1990). Bahman has not demonstrated that there
was such a great disparity in the evidence that he could not
have received a fair trial without a severance. See United
States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir. 1988),
cert. denied, 492 U.S. 908, 109 S. Ct. 3221 (1989). The
district court properly instructed the jury to consider each
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 43
defendant’s culpability separately, Tr. 977-78, 5326-27, and
we presume that the jury followed that instruction, see,
e.g., United States v. Thompson, 286 F.3d 950, 968 (7th Cir.
2002).
L. Admission of Tape Recordings and English Translations
of Telephone Conversations in Farsi
Among the intercepted and recorded conversations that
the district court admitted into evidence at trial were a
series of conversations in Farsi. FBI language specialist
Behrooz Sarshar listened to these recordings over a period
of two months and prepared English translations of the
conversations that were also introduced into evidence at
trial. The transcripts identified Mohammad and Bahman
Mansoori as participants in these conversations. Sarshar
testified that having listened to the tapes over a two-month
period, and having heard the two Mansoori brothers speak
at a court proceeding that took place in advance of trial, he
was able identify the voices on the tapes as belonging to
Mohammad and Bahman Mansoori. Tr. 2491-2501; see also
Tr. 2627. The Mansooris contend that the tape recordings
and translations were inadmissible because, in their view,
Sarshar lacked an adequate basis upon which to identify
the voices on the recordings as theirs.
We believe that the tapes and translations were properly
admitted. Federal Rule of Evidence 901(b)(5) permits a
witness to identify a voice “based upon hearing the voice at
any time under circumstances connecting it with the al-
leged speaker.” (Emphasis supplied.) Nothing in the rule,
therefore, would preclude a witness from identifying the
participants in a tape-recorded conversation based on lis-
tening to those individuals participate in a court proceed-
ing. Granted, Sarshar only had one opportunity to hear
Bahman and Mohammad Mansoori speak in a setting that
disclosed their identities. However, we have held that an
44 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
individual’s “minimal familiarity” will suffice to permit him
to identify a speaker’s voice. United States v. Saulter, 60
F.3d 270, 276 (7th Cir. 1995); United States v. Degaglia, 913
F.2d 372, 376 (7th Cir. 1990); United States v. Alvarez, 860
F.2d 801, 809 (7th Cir. 1988), cert. denied, 493 U.S. 829,
110 S. Ct. 97 (1989). Having reviewed the record, we are
inclined to agree with the Mansooris that the basis for
Sarshar’s identification was relatively weak. Yet, we cannot
say as a matter of law that the brief opportunity Sarshar
had to hear the defendants in court was insufficient to
permit his voice identification. The accuracy of his identifi-
cation, of course, was a question for the jury, e.g., Degaglia,
913 F.2d at 376 n.3, and the jury was properly advised on
that point, Tr. 5341-42.
Moreover, as the government points out, other evidence
circumstantially supported Sarshar’s attributions. See
Alvarez, 860 F.2d 809. First, co-conspirator John Hunt iden-
tified the Mansoori brothers as the speakers in one of the
conversations in which he had participated. Tr. 2702-03.
Moreover, Officer Grapenthein had heard Mohammad
Mansoori conduct a number of conversations in English on
the same phone from which the Farsi conversations were
intercepted, Tr. 2347, and for that reason one might rea-
sonably infer (as he did) that Mohammad Mansoori was one
of the participants in the Farsi conversations. Indeed, the
subscriber for the telephone from which the Farsi conversa-
tions were intercepted was listed as “Anthony Mirabelli,” a
name that the evidence revealed to be an alias used by
Mohammad Mansoori; and a bill for that telephone was
found in a search of Mohammad’s home. Tr. 2294-95, 3365-
68. Finally, a number of the intercepted conversations in
Farsi were placed from a cellular telephone that was dis-
covered in Bahman Mansoori’s apartment and for which
service had been arranged by Bahman’s girlfriend. Tr. 2357-
58, 3203-06, 3536-3538, 3632-35.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 45
M. Evidence of Prior, Narcotics-Related Forfeiture of Mo-
hammad Mansoori’s Assets
In 1990, an undercover Illinois state police officer ar-
ranged to sell 60 kilograms of cocaine to Jamshid Mansoori
(brother to Mohammad and Bahman) for $1.3 million.
When the officer arrived at a pre-arranged location to con-
summate the deal, Jamshid indicated that he had only
$350,000 with him, but that his brother would be arriving
shortly with the balance of the purchase money. Mo-
hammad joined the other two thereafter and displayed a
gym bag to the officer containing many bundles of currency.
Jamshid and Mohammad Mansoori were arrested and
charged with narcotics trafficking, and eventually they
pleaded guilty. Pursuant to the plea agreement, they
forfeited the two automobiles that they had driven to the
meeting with the undercover officer, some $263,000 in cash,
and “several hundred items of jewelry.” Tr. 2979.
The district court admitted testimony concerning the 1990
offense and Mohammad’s forfeiture of assets pursuant
to his guilty plea under Federal Rule of Evidence 404(b).
The court instructed the jury that this testimony was
admitted insofar as it bore upon Mohammad’s intent to
conspire to distribute narcotics and on his ability, intent,
and knowledge to launder drug proceeds, and that the
evidence was to be considered in these respects alone. Tr.
2969. The undercover officer who participated in the trans-
action then briefly described the details of the crime and
Mohammad’s forfeiture of assets. Tr. 2969-79. An expert in
the field of jewelry appraisal later testified as to the value
of the approximately fifty pieces of jewelry that had been
seized from Mohammad’s home (which was among the
jewelry that was forfeited). Tr. 3482-3494. Although Mo-
hammad does not challenge the testimony regarding the
nature of the 1990 transaction, he contends that the district
court erred when it allowed evidence regarding his forfei-
ture of assets and the value of the jewelry found in his
46 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
home at the time of the 1990 offense. We review the district
court’s decision for abuse of discretion. E.g., United States
v. Best, 250 F.3d 1084, 1090 (7th Cir.), cert. denied, 122 S.
Ct. 279 (2001).
We find no abuse of discretion in the admission of this
testimony. The district court found that the forfeiture evi-
dence was admissible in part to demonstrate Mohammad’s
ability to engage in substantial drug transactions involving
large amounts of money. R. 339. As the government’s case
against Mohammad here posited that he was supplying his
co-conspirators with large sums of narcotics, we have
no quarrel with the district court’s assessment. See, e.g.,
United States v. Denberg, 212 F.3d 987, 994 (7th Cir. 2000)
(evidence of prior drug trafficking admissible to show, inter
alia, defendant’s ability to traffic in significant quantities of
narcotics); United States v. Shields, 999 F.2d 1090, 1099 (7th
Cir. 1993) (evidence of defendant’s prior payments to judge
relevant “because it demonstrated he had the ability,
willingness, and chutzpah to bribe a judge”), cert. denied,
510 U.S. 1071, 114 S. Ct. 877 (1994); United States v.
Chaverra-Cardona, 879 F.2d 1551, 1555 (7th Cir. 1989)
(evidence of defendant’s finances was probative of his
resources and ability to carry out charged murder-for-hire
schemes). The jury was properly instructed as to the limited
purposes for which this evidence was offered, and given that
the state police officer’s testimony about the 1990 forfeiture
occupied no more than one page among the several thou-
sand pages of the trial transcript, see Tr. 2979, we discern
the likelihood of undue prejudice to Mohammad as slight.
Cf. United States v. Macias, 930 F.2d 567, 572 (7th Cir.
1991) (where Rule 404(b) testimony was “brief and non-
inflammatory in nature,” risk of prejudice was minimized).
As for the value of the jewelry seized in 1990, Mohammad’s
sole argument is that the value was irrelevant absent proof
that he himself had purchased the jewelry. As the district
court observed, however, it is at least a fair inference that
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 47
Mohammad had purchased the jewelry given that it had
been found in his possession. Tr. 3544.
N. Requested Recusal of District Judge
In advance of trial, Young filed a motion in which the
other defendants subsequently joined asking the district
judge to recuse himself pursuant to 18 U.S.C. § 455 for two
reasons: (1) the judge’s daughter was dating an agent of the
U.S. Drug Enforcement Administration (“DEA”); and (2) his
daughter, as an employee of the Chicago Crime Commis-
sion, was writing a book about gangs and drugs. R. 285; see
Tr. 742-1, 12/18/97 Tr. 8. The judge denied the motion,
concluding that neither his daughter’s relationship with the
DEA agent nor her work for the Crime Commission reason-
ably called into question his ability to be impartial in this
case. Id. at 9-10. The judge observed that he had met the
DEA agent that his daughter was dating on three or four
occasions, that the agent had no involvement with this case,
that the DEA generally had nothing more than a tangential
involvement with this case, and that the judge had not
discussed the case with him. Id. at 11; R. 742-2, 1/5/98 Tr.
8, 10. As to his daughter’s work, the judge noted that she
had been employed with the Crime Commission for several
years, that in the course of her employment she had written
and edited a report entitled “The New Faces of Organized
Crime,” that she had not discussed the report with him,
that he had read no more than the title page of the report,
and that he had no idea whether the report discussed either
the TVLs or any other group. R. 742-1, 12/18/97 Tr. 5, 12-
13; R. 742-2, 1/5/98 Tr. 8-9. (The record indicates, in fact,
that defense counsel obtained a copy of the report and
that it did not mention the TVLs. See R. 742-2, 1/5/98 Tr.
7.) Neither Young nor any other defendant filed a petition
for mandamus following the district court’s ruling, an
omission that forecloses appellate relief under section 455.
See United States v. Smith, 210 F.3d 760, 764 (7th Cir.
48 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
2000). Mohammad Mansoori nonetheless argues that the
judge’s refusal to recuse himself deprived him of his Fifth
Amendment right to due process. Because he did not rely on
the due process clause below, he forfeited this argument
and our review is confined to one for plain error alone. See,
e.g., United States v. Williams, supra, 272 F.3d at 854-55.
The district judge certainly committed no plain error in
declining to recuse himself. As the government points out,
the Constitution demands recusal in a narrower range of
circumstances than does the statute. Generally speaking,
due process compels recusal only when “the [biasing] in-
fluence . . . is so strong that [the court] may presume actual
bias.” Del Vecchio v. Illinois Dep’t of Corrections, 31 F.3d
1363, 1375 (7th Cir. 1994) (en banc), cert. denied, 514 U.S.
1037, 115 S. Ct. 1404 (1995). Conflicts arising from the
judge’s familial relationships normally do not mandate
recusal under the due process clause. Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 820, 106 S. Ct. 1580, 1584 (1986).
Here, no basis has been shown for believing that the work
and social life of the judge’s daughter gave rise to a disqual-
ifying bias on the part of the judge. Her report for the
Chicago Crime Commission concerned neither the defen-
dants, the Traveling Vice Lords, nor the facts of this case,
and the judge himself had not even read the report. Like-
wise, the DEA agent whom she was dating had no involve-
ment in this case, and the judge had not discussed the case
with him.
O. Supervisory Enhancement for Cox
Pursuant to section 3B1.1(b) of the Sentencing Guide-
lines, the district court determined that Cox qualified as a
“manager or supervisor” of criminal activity that “involved
five or more participants or was otherwise extensive” and
enhanced his offense level by three levels. R. 730, Cox
Sentencing Tr. 26-29. The court had no doubt that the
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 49
criminal activity at issue in this case involved at least five
individuals or was otherwise extensive: the conspiracy had
a broad temporal and geographic reach and was responsible
for numerous narcotics transactions that took place on a
daily basis. Id. at 27. As for Cox’s role in that conspiracy,
the court noted that Cox had told Cronin upon his arrest
that he controlled the distribution of narcotics within an
eight or nine square-block portion of the TVL domain and
that he could “shut down” other TVL members who were
selling drugs within that area. Id. at 27-29. The court noted
further that Cox’s management of at least one “drug spot”
required him to employ several individuals who could sell
drugs, transport money and drugs, and secure the “spot.”
Id. at 29. These facts, the district court reasoned, supported
the inference that Cox had managed or supervised one or
more participants in the charged conspiracy. Id. at 27, 29.
The court did not name any such participant, however, see
id. at 29, and this forms the basis for Cox’s objection to the
managerial enhancement. Unless the district court can
identify by name at least one person whom the defendant
supervised or managed, Cox argues, it cannot impose the
enhancement. See United States v. Stubbs, 11 F.3d 632, 641
(6th Cir. 1993) (holding that section 3B1.1 requires the
district court to “make specific findings as to the identity of
the persons involved in the criminal enterprise”); but see
also United States v. Fells, 920 F.2d 1179, 1182 (4th Cir.
1990) (lower-level distributors with whom defendant sup-
plied crack cocaine were properly considered by district
court in imposing section 3B1.1 enhancement although not
identified by name), cert. denied, 501 U.S. 1219, 111 S. Ct.
2831 (1991); United States v. McDowell, 918 F.2d 1004,
1011 (1st Cir. 1990) (identities of participants in crime need
not be proved expressly for purposes of section 3B1.1,
although district court must make finding that “pinpoints
them with enough particularity to give credence to the
upward adjustment”); United States v. Barbontin, 907 F.2d
1494, 1498 (5th Cir. 1990) (identities of participants need
50 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
not be proved expressly for purposes of section 3B1.1). This
argument poses a legal issue as to which our review is de
novo. See United States v. Tai, 41 F.3d 1170, 1174 (7th Cir.
1994).
We do not agree that a court must invariably identify by
name the person or persons whom the defendant managed
or supervised, however. Our opinion in United States v.
Schweihs, 971 F.2d 1302, 1318 (7th Cir. 1992), does indicate
that the district court must identify each of the participants
in the criminal enterprise when imposing a section 3B1.1
enhancement. In the absence of such a finding, we cannot
exercise meaningful review of the court’s threshold determi-
nation that there were at least five criminally culpable
participants in the offense or its ultimate determination
that the defendant managed or supervised one or more of
these participants. United States v. Jewel, 947 F.2d 224,
235-36 (7th Cir. 1991); see also McDowell, 918 F.2d at 1011-
12. Yet, in some cases, the evidence may leave no doubt
that the defendant directed another culpable participant
but may not reveal that person’s name. In United States v.
Richards, 198 F.3d 1029, 1031 (7th Cir. 2000), for example,
an unnamed individual had met the defendant and escorted
him and his confederates in narcotics trafficking to a “safe
house”; and another such unnamed individual had retrieved
his minivan and later returned it to him loaded with
marijuana. We indicated that the district court could
properly consider those individuals as participants in the
criminal enterprise over whom the defendant had exercised
control, notwithstanding the absence of evidence as to their
names. Id. at 1034. See also United States v. Cadavid, 192
F.3d 230, 237 (1st Cir. 1999) (evidence that conspiracy in-
volved four named individuals and two unnamed individu-
als sufficient to support district court’s determination that
the enterprise involved five or more participants); Fells, 920
F.2d at 1182-83 (evidence that defendant’s narcotics dis-
tribution network involved four named participants and
seventeen unnamed, lower-level distributors was sufficient
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 51
to support district court’s finding that the enterprise
involved five or more participants). So long as the court’s
findings and the underlying evidence make clear that the
criminal enterprise involved at least five culpable partici-
pants and that the defendant actually did manage or super-
vise one or more of these individuals, the lack of evidence as
to the name of the person that the defendant supervised or
managed should not foreclose imposition of the managerial
enhancement pursuant to section 3B1.1(b). In this case, the
district court pointed to specific evidence indicating that
Cox had managed or supervised other criminally culpable
participants in the TVL’s narcotics operations. But for the
fact that the evidence does not reflect the names of these
individuals, Cox makes no challenge to the sufficiency of
this evidence or the district court’s findings. We find no
error in the district court’s decision.
P. Choice’s Offense Level
The district court made several factual determinations
that increased Choice’s offense level and, ultimately, man-
dated a prison term of life. First, in establishing Choice’s
base offense level, the court determined that Choice should
be held to account for the full amount of cocaine distributed
by the members of the conspiracy—more than 150 kilo-
grams—in view of Choice’s “full participation in the conspir-
acy.” R. 748, Choice Sentencing Tr. 18; see also id. at 16-18,
19-20. Second, although the evidence did not indicate that
Choice himself had possessed a firearm in connection with
the conspiracy, the court increased Choice’s base offense
level by two levels based on the fact that his co-conspirators
had done so. Id. at 18-19, 20; see U.S.S.G. § 2D1.1(b)(1).
Finally, as with Cox, the court increased Choice’s offense
level by another three levels based on Choice’s exercise of
managerial or supervisory authority over certain aspects of
the conspiracy, including the distribution of heroin at the
Henry Horner Homes, a public housing project on Chicago’s
52 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
west side. R. 748, Choice Sentencing Tr. 20; see U.S.S.G.
§ 3B1.1(b). Choice challenges each of these findings, which
we review for clear error. E.g., United States v. Kroledge,
201 F.3d 900, 905 (7th Cir. 2000). None of these three
factual determinations was clearly erroneous.
For purposes of establishing the defendant’s offense level,
the relevant drug quantity need not be proven beyond a
reasonable doubt, as Choice contends, so long as the re-
sulting sentence is within the range of penalties proscribed
in the statute. E.g., United States v. Hernandez, 226 F.3d
839, 841-42 (7th Cir. 2000). In this case, the statute speci-
fied a prison term of twenty years to life so long as the
offense involved at least five kilograms of cocaine and/or
one kilogram of heroin. 21 U.S.C. § 841(b)(1)(A)(i, ii). The
jury was not asked to find beyond a reasonable doubt
whether the conspiracy involved at least this much cocaine,
and as we have discussed, that constituted an error under
Apprendi. See supra at 29-30. But we have already held this
error to be harmless in view of the overwhelming evidence
that the conspiracy involved far more than the threshold
quantities of five kilograms of cocaine and one kilogram of
heroin. See supra at 30-31. For purposes of determining
where within the statutory range of twenty years to life
Choice was to be sentenced, the district court was free to
establish the relevant drug quantity based on a preponder-
ance of evidence. E.g., United States v. Nubour, 274 F.3d
435, 444 (7th Cir. 2001), petition for cert. filed, No. 01-10947
(U.S. June 20, 2002). Choice does not dispute that the
district court’s 150-kilogram finding has adequate evi-
dentiary support under this burden.
Although Choice secondarily contends that the court
erred in holding him responsible for the full amount of
cocaine involved in the conspiracy, we find no clear error in
that determination. See, e.g., United States v. Gutierrez-
Herrera, 293 F.3d 373, 376 (7th Cir. 2002). A defendant may
be held to account for the full quantity of drugs involved in
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 53
a conspiracy to distribute narcotics so long as that amount
was reasonably foreseeable to him. U.S.S.G. § 1B1.3(a)
(1)(B) & comment. (n.2); see, e.g., United States v. Robbins,
197 F.3d 829, 850-51 (7th Cir. 1999); United States v. Flores,
5 F.3d 1070, 1082-83 (7th Cir. 1993), cert. denied, 510 U.S.
1074, 114 S. Ct. 884 (1994). Notwithstanding his protesta-
tions of “minimal” involvement in the conspiracy, the evi-
dence revealed that Choice was Young’s “right-hand man”
and that he enjoyed a position of significant status and
authority within the TVL hierarchy as a result. See, e.g., Tr.
346, 668, 673, 1228, 1252, 1751-52. The evidence also
reveals Choice’s personal involvement in a number of multi-
kilogram transactions. To cite just a few examples, the
evidence indicated that Choice had picked up a ten-kilo-
gram quantity of cocaine from Young on at least one
occasion, Tr. 694, that he had delivered cocaine to Leslie
Teague on more than ten occasions for Young, Tr. 2096-99,
2105-07, that he had managed the distribution of heroin at
the Henry Horner Homes and had picked up heroin from
Young for that purpose, Tr. 342-43, 358, and that he was
distributing three kilograms of cocaine per week at one
point in time, Tr. 1049. The district court was entitled to
infer that someone with Choice’s degree of involvement
could have reasonably foreseen that the conspiracy involved
at least 150 kilograms of cocaine (or its equivalent).
For the same reason, we find no error in the district
court’s decision to apply the firearms enhancement. A
defendant convicted of conspiracy need not have possessed
a firearm himself for the enhancement to apply, so long as
his co-conspirators’ possession of firearms in furtherance of
the conspiracy was reasonably foreseeable to him. See, e.g.,
United States v. Cavender, 228 F.3d 792, 801 (7th Cir. 2000),
cert. denied, 532 U.S. 1023, 121 S. Ct. 1965 (2001). Fire-
arms were widely used in the TVLs’ trafficking operations,
see Tr. 702, 723-26, 1452-53, 1857-60, and given the extent
of Choice’s hands-on involvement in those operations, he
must have been aware of the presence and use of firearms.
54 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
Nor, finally, do we discern any error in the imposition of
the managerial enhancement. The evidence revealed not
only that Choice ran the heroin distribution at the Henry
Horner Homes, see Tr. 342-49, 668, which required that he
supervise more than one other criminally responsible
person, but also that he directly supervised Terry Bronson
(nicknamed “Frog”), who helped him pick up and deliver
drugs, Tr. 342-43, 350, 353.
Q. Enhancement of Bahman Mansoori’s Offense Level for
Obstruction of Justice
Based on Bahman Mansoori’s refusal to comply with a
court order directing him to supply a voice exemplar, the
court enhanced his offense level for obstruction of justice.
See U.S.S.G. § 3C1.1. Not long before the government
rested its case-in-chief, Bahman’s counsel informed the
prosecution that he intended to call an FBI agent to the
stand to testify about the government’s use of voice exem-
plars in another case as a means of voice identification. The
aim of this testimony, apparently, was to suggest that the
FBI’s language specialist, Behrooz Sarshar, lacked an
adequate basis upon which to identify Bahman’s voice on
the tape recordings (see supra at 43-44) because the gov-
ernment had not used voice exemplars for that purpose.
After the defense case had begun and before the agent
testified, the government sought to bar this line of inquiry
and argument. After the district court overruled the govern-
ment’s objection, Tr. 3941, the government asked the court
to order Bahman to provide a voice exemplar, Tr. 3942-45.
Bahman objected to the request, and although the court did
not definitively rule on the objection at that time, it did
point out to Bahman’s counsel that “[y]ou are the one that
just brought this issue up.” Tr. 3945. Later, after the agent
testified, the court ordered Bahman to provide an exemplar.
Tr. 4015-16, 4387. When Bahman refused, the court per-
mitted the government to elicit evidence of his refusal to
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 55
the jury. Tr. 4514-15, 4520-21; see Tr. 4687-89. The court
observed that Bahman had “opened the door” on this sub-
ject and that the court had allowed the agent’s testimony on
the condition that Bahman would supply the government
with an exemplar. Tr. 4520. At sentencing, the court de-
termined that an enhancement for obstruction of justice
was appropriate in light of Bahman’s refusal to comply with
the court’s order. R. 601, B. Mansoori Sentencing Tr.17-18.
We review that determination for clear error. E.g., United
States v. Yusufu, 63 F.3d 505, 514 (7th Cir.), cert. denied,
516 U.S. 1015, 116 S. Ct. 578 (1995).
The district court did not clearly error in imposing the
obstruction enhancement. We have previously upheld such
an enhancement based on the defendant’s refusal to provide
a handwriting exemplar. United States v. Ruth, 65 F.3d
599, 608 (7th Cir. 1995), cert. denied, 517 U.S. 1158, 116 S.
Ct. 1548 (1996). Bahman’s objection is premised on the
notion that the government deprived him of due process by
waiting until he had already commenced his defense to
make its request for a voice exemplar—thus putting him to
an untenable choice between submitting a potentially
incriminating exemplar or making himself subject to a
sentence increase for obstruction of justice by refusing to
submit the exemplar. Bahman Mansoori Suppl. Br. at 9-11.
But the record does not bear out Bahman’s argument. The
government requested the exemplar only after the court
overruled its objection to the FBI agent’s testimony, but
also before Bahman put the FBI agent on the witness stand.
Moreover, although the district court may not yet have
definitively said that it would order the exemplar, it had
expressed the view that Bahman was opening the door to
that request by putting on testimony that called into
question the reliability of the voice identifications. Tr. 3943,
3945, 4226; see also Tr. 4015-16. In short, before he called
the FBI agent to testify about the use of voice exemplars in
another case, Bahman knew that it was altogether possible
the court would order him to submit an exemplar of his
56 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
own. In no sense was he “set up” by the government or by
the district court. The district court acted within its discre-
tion in ordering him to submit the exemplar, see, e.g.,
United States v. Rogers, 475 F.2d 821, 825-26 (7th Cir. 1973),
and given Bahman’s refusal to comply with that order, the
court committed no clear error in enhancing his offense
level for obstruction of justice, Ruth, 65 F.3d at 608.
R. Denial of Young’s Request for Downward Departure
Without Evidentiary Hearing
Prior to sentencing, Young filed a motion asking the court
to depart downward from the otherwise applicable sentenc-
ing range on three grounds: (1) his diminished mental
capacity, see U.S.S.G. § 5K2.13, (2) his mental condition, see
id. § 5H1.3, and (3) his prior good works, see id. § 5H1.11.
The district court determined that Young was ineligible for
a departure on the basis of diminished mental capacity
because he had not been convicted of a non-violent offense,
as section 5K2.13 requires. United States v. Young, 1999
WL 731790, at *1-*3 (N.D. Ill. Aug. 31, 1999). This was a
legal determination that we review de novo. United States
v. Poff, 926 F.2d 588, 590-91 (7th Cir.) (en banc), cert.
denied, 502 U.S. 827, 112 S. Ct. 96 (1991). With respect to
his mental condition, the court indicated that Young had
not articulated exceptional circumstances that might war-
rant a departure. Accordingly, the court summarily denied
his request without holding an evidentiary hearing. 1999
WL 731790, at *3-*4. We review the district court’s decision
not to hold an evidentiary hearing for abuse of discretion.
See Fed. R. Crim. P. 32(c)(1); United States v. Beltran, 109
F.3d 365, 369 (7th Cir.), cert. denied, 522 U.S. 852, 118 S.
Ct. 145 (1997). Finally, the court denied Young’s request for
a departure on the basis of his good works on the merits,
after hearing testimony regarding those works. R. 745-3,
Young Sentencing Tr. 39-42. Of course, we lack jurisdiction
to review a district court’s discretionary decision not to
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 57
depart downward, e.g., United States v. Schuh, 289 F.3d
968, 974 (7th Cir. 2002), and indeed, Young does not chal-
lenge that decision.
We turn to the requested diminished capacity departure
first. The district court sentenced Young using the 1997
version of the Sentencing Guidelines. See Young, 1999 WL
731790, at *1. As of 1997, section 5K2.13 provided as
follows:
If the defendant committed a non-violent offense while
suffering from significantly reduced mental capacity not
resulting from voluntary use of drugs or other intoxi-
cants, a lower sentence may be warranted to reflect the
extent to which reduced mental capacity contributed to
the commission of the offense, provided that the defen-
dant’s criminal history does not indicate a need for
incarceration to protect the public.
U.S.S.G. § 5K2.13 (1997) (emphasis supplied). The Guide-
line offered no guidance as to what constitutes a “violent” as
opposed to a “non-violent” offense. In Poff, 926 F.2d 588, we
held by a divided (6 to 5) vote that this determination must
be made with reference to the definition of “crime of vio-
lence” set forth in the career offender guideline, section
4B1.2(a).12 That guideline, which tracks the language of the
Armed Career Criminal Act, 18 U.S.C. § 924(e), provides:
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that—
12
The career offender guideline, section 4B1.1, mandates a prison
term at or near the statutory maximum for adults who stand
convicted of “a felony that is either a crime of violence or a
controlled substance offense” and whose criminal history includes
at least two prior felony convictions for the same types of crimes.
Section 4B1.2(a) in turn defines “crime of violence” as that term
is used in section 4B1.1.
58 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
We reasoned in Poff that the terms “crime of violence” and
“non-violent offense” are mutually exclusive, such that any
offense that amounts to a “crime of violence” under the
criteria set out in section 4B1.2(a) cannot be a “non-violent
offense” for purposes of section 5K2.13. 926 F.3d at 591-93;
cf. id. at 594-95 (Easterbrook, J., dissenting). Under Poff,
then, a conviction for any crime that (i) is defined in such a
way as to include the actual, attempted, or threatened use
of force, or (ii) constitutes burglary of a dwelling, arson, or
extortion, or involves the use of explosives, or (iii) “presents
a serious potential risk of physical injury to another,” will
preclude a departure for diminished mental capacity. This
is a categorical approach that abjures any inquiry into
whether the defendant actually engaged in violence in
committing the offense and focuses instead on the nature of
the offense. Compare id. at 593 (majority) with id. at 594-95
(dissent); see United States v. Sullivan, 75 F.3d 297, 300 &
n.1 (7th Cir. 1996); see also United States v. Dailey, 24 F.3d
1323, 1325-27 (11th Cir. 1994); United States v. Mayotte, 76
F.3d 887, 889 (8th Cir. 1996); United States v. Borrayo, 898
F.2d 91, 94 (9th Cir. 1989); United States v. Maddalena, 893
F.2d 815, 819 (6th Cir. 1989), cert. denied, 502 U.S. 882, 112
S. Ct. 233 (1991); contra United States v. Weddle, 30 F.3d
532, 540 (4th Cir. 1994) (conviction for offense that meets
section 4B1.2’s criteria for “crime of violence” may nonethe-
less qualify as “non-violent offense” for purposes of section
5K2.13); United States v. Chatman, 986 F.2d 1446, 1450
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 59
(D.C. Cir. 1993) (same).13
13
Effective November 1, 1998, the Sentencing Commission
amended section 5K2.13 in order to make clear that the sentenc-
ing judge is to examine the circumstances underlying the defen-
dant’s offense in order to decide whether he qualifies for a dimin-
ished capacity reduction rather than make a categorical deter-
mination whether the offense was “violent” or “nonviolent”. See
U.S.S.G. App. C., amend. 583. The amended guideline now per-
mits a downward departure unless:
(1) the significantly reduced mental capacity was caused by
the voluntary use of drugs or other intoxicants; (2) the facts
and circumstances of the defendant’s offense indicate a need
to protect the public because the offense involved actual
violence or a serious threat of violence; or (3) the defendant’s
criminal history indicates a need to incarcerate the defendant
to protect the public.
U.S.S.G. § 5K2.13 (Nov. 1998) (emphasis added). In explaining the
revision, the Commission noted the division among the circuits as
to the appropriate means of deciding whether the defendant’s
offense was “nonviolent” and remarked that “[t]he amendment
replaces the current policy statement with a new provision that
essentially represents a compromise approach to the circuit con-
flict.” U.S.S.G. App. C, amend 583, comment.
Although the revised version of section 5K2.13 took effect well
in advance of Young’s sentencing, the parties agreed the 1997
version of the Guidelines should be used to sentence Young
as the November 1998 version was less favorable to him and
consequently created the potential for a violation of his rights
under the ex post facto clause of the Constitution. See U.S.S.G.
§ 1B1.11(b)(1); United States v. Schaefer, 291 F.3d 932, 936 n.1 (7th
Cir. 2002); United States v. Kosmel, 272 F.3d 501, 507 (7th Cir.
2001). Judge Lindberg therefore applied the 1997 version of sec-
tion 5K2.13. See Young, 1999 WL 731790, at *1. Neither Young
nor the government suggests on appeal that we should apply the
revised version of the Guideline. Accordingly, we need not decide
whether the Commission’s revision was “clarifying” (in which case
it would apply to pending cases) or “substantive” (in which case it
(continued...)
60 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
The offenses of which Young was convicted—narcotics
conspiracy, possession of cocaine with the intent to distrib-
ute, and money laundering—do not have elements involving
the actual, attempted, or threatened use of force, see section
4B1.2(a)(1), nor do they fall into one of the categories of of-
fenses expressly identified as violent in section 4B1.2(a)(2)
(burglary of a dwelling, arson, etc.). Therefore, only if these
offenses may be said to “involve[ ] conduct that presents a
serious potential risk of physical injury to another” may
they be labeled violent crimes that preclude a downward
departure under section 5K2.13.
Notably, the career offender guideline does not permit a
free-ranging exploration of the facts underlying and sur-
rounding a defendant’s conviction in order to make this
determination. The commentary instead explains that “the
offense of conviction (i.e., the conduct of which the defen-
dant was convicted) is the focus of inquiry,” U.S.S.G.
§ 4B1.2, comment. (n.2), and it specifically directs the sen-
tencing court to examine “the conduct set forth (i.e., ex-
pressly charged) in the count of which the defendant was
convicted” and consider whether that conduct, “by its
nature” posed a serious risk of injury, id. (n.1). See United
States v. Shannon, 110 F.3d 382, 384 (7th Cir.) (en banc),
13
(...continued)
would not apply). See U.S.S.G. § 1B1.11(b)(2) (court should con-
sider guideline amendments made subsequent to defendant’s of-
fense “to the extent that such amendments are clarifying rather
than substantive changes”); see also, e.g., United States v. Hartz,
296 F.3d 595, 598-99 (7th Cir. 2002); United States v. Minneman,
143 F.3d 274, 282 (7th Cir. 1998), cert. denied, 526 U.S. 1006, 119
S. Ct. 1145 (1999); compare United States v. Askari, 159 F.3d 774,
779-80 (3rd Cir. 1998) (en banc) (relying on the parties’ agreement
that the revision to section 5K2.13 was clarifying), with United
States v. Allen, 181 F.3d 104 (6th Cir. 1999) (unpublished), text in
Westlaw, 1999 WL 282674, at *2 (holding that the revision to
section 5K2.13 was substantive).
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 61
cert. denied, 522 U.S. 888, 118 S. Ct. 223 (1997); United
States v. Hoults, 240 F.3d 647, 650-52 (7th Cir. 2001); United
States v. Lee, 22 F.3d 736, 738-40 (7th Cir. 1994); see also
Taylor v. United States, 495 U.S. 575, 600-02, 110 S. Ct.
2143, 2159-60 (1990) (construing comparable language in
Armed Career Criminal Act, 18 U.S.C. § 924(e)).
Looking to the language of the indictment in this case,
Judge Lindberg concluded that the narcotics charges
against Young presented a serious risk of potential injury
to others, thus foreclosing the possibility of a downward
departure for diminished mental capacity. Count One of the
superseding indictment, which set forth the narcotics
conspiracy charge against Young and his co-defendants,
specifically alleged:
It was further part of the conspiracy that defendants
Terry Young [and others] . . . assisted each other in the
distribution of narcotics by using street gang affiliation,
violence, and the threat of violence to minimize compe-
tition in and otherwise maintain control over these
geographic areas, and on occasion by assisting each
other in stealing narcotics from other narcotics distribu-
tors.
1999 WL 731790, at *2, quoting R. 133 at 3 ¶ 4. Judge
Lindberg found this allegation sufficient to establish that
Young’s convictions were for “crimes of violence” as section
4B1.2(a)(2) defines such offenses. Id. He observed:
Drug dealing, especially at the scale involved here, is
far from a benign activity. Squabbles over turf and
stealing from other drug distributors are quite common
and are, inter alia, a rich source of violence. Trial
testimony amply demonstrated that defendant’s drug
operation was no exception. . . .
Id.Young argued below, and renews the argument here, that
although the sentencing court may look to the language of
62 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
the indictment to determine whether a particular offense
amounted to a violent crime, it must confine its consider-
ation to those allegations that were necessary to charge the
offense of conviction. The mere fact that violent acts were
alleged in the indictment is not enough, in Young’s view, to
confirm that the defendant was convicted of a violent
offense; only if such facts were essential to the conviction
may the sentencing judge consider them.
Young’s argument has the support of a number of career
offender cases, which indeed emphasize that when review
of the charging document is necessary in order to assess the
nature of a defendant’s prior conviction, the court should
focus solely on allegations that were essential to the
conviction. See, e.g., United States v. Jackson, 177 F.3d 628,
632 (7th Cir. 1999) (“By considering only the minimum facts
necessary to support Jackson’s conviction, we can ensure
that we impose a sentence enhancement only for conduct of
which Jackson was actually convicted.”); see also United
States v. Winter, 22 F.3d 15, 19 (1st Cir. 1994) (when
examining charge underlying prior conviction,“the court
should not plunge into the details of a particular defen-
dant’s conduct but, rather, . . . should merely assess the
nature and object of the [charged offense] as described in
the indictment and fleshed out in the jury instructions”).
These cases suggest that an indictment’s allegations of
violence are relevant for purposes of the career offender
guideline only if those allegations go to the heart of the
charged offense. With respect to a conspiracy conviction, for
example, an allegation that the defendant conspired to
commit murder obviously would be relevant in the sense
that it revealed the very object of the conspiracy; and one
could confidently read into the conviction a finding that the
defendant had conspired to commit a violent act. See United
States v. Fiore, 983 F.2d 1, 3 (1st Cir. 1992), cert. denied, 507
U.S. 1024, 113 S. Ct. 1830 (1993). Likewise, with respect to
a racketeering conviction, an allegation that the defendant
engaged in predicate acts of extortion and arson would be
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 63
probative of the nature of the racketeering; and once again,
the conviction on an indictment containing that allegation
would stand as proof that the defendant had engaged in
violent conduct. See Winter, 22 F.3d at 19-20. By contrast,
in a check-kiting case, an allegation that the defendant
engaged in a violent act would be entirely beside the point,
as the use of violence has nothing whatever to do with the
elements of check kiting, and conviction on the charge
would in no way depend upon proof of violence nor reflect
a finding that such violence had occurred. See id. at 19-20,
20-21; but see Shannon, 110 F.3d at 387 (“it is common
ground between the parties that in deciding just what the
defendant’s offense was we are free to look at the facts
charged in the indictment or information; we are not
confined to the minimum conduct that would create the
offense”).
Thus, the fact that the indictment in this case alleged the
use of violence and threats of violence does not necessarily
establish that any of the charges on which the jury con-
victed Young were crimes of violence. An indictment may
allege any number of facts which, although illuminating in
a contextual sense, are by no means necessary to establish
that the defendant committed the crime charged. See
United States v. Ewings, 936 F.2d 903, 905-06 (7th Cir.
1991) (merely because extraneous facts are alleged in
indictment does not render proof of those facts relevant and
admissible at trial).
The alleged acts of violence on which the district court
relied here appear to fall into that category of collateral
facts. Proof that violence was used or threatened was
wholly unnecessary to establish that Young conspired to
distribute narcotics, or for that matter, that he possessed
narcotics with the intent to distribute and laundered
money. The violence allegation speaks neither to the
central object nor the essential nature of the charged
crimes. Moreover, as the jury instructions reveal, the jury
64 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
was not directed that Young’s guilt on the narcotics or
money-laundering charges in any way depended on a
finding that he or his co-defendants had engaged in violent
acts. See Tr. 5330-33 (conspiracy), 5333-35 (distribution of
a controlled substance), 5337-40 (money laundering).
Consequently, although the indictment alleged that the
charged offenses involved violence or the threat of violence,
one cannot read into Young’s convictions on these charges
a finding that he engaged in violent conduct. See Jackson,
177 F.3d at 632. Therefore, pursuant to the categorical
assessment of the defendant’s convictions that Poff re-
quires, none of Young’s convictions can be considered crimes
of violence that precluded the district court from entertain-
ing a departure under section 5K2.13.
We must, therefore, remand so that Judge Lindberg may
consider anew whether Young’s allegedly diminished
mental capacity calls for a downward departure. See, e.g.,
United States v. Jaroszenko, 92 F.3d 486, 491 (7th Cir.
1996). We hasten to add that the judge is by no means
precluded from considering the extent to which Young and
his co-conspirators employed violence in furtherance of
their crimes—along with any other pertinent factors—in
making that determination. (The guideline itself indicates
that a departure may not be granted to the extent that the
defendant’s criminal history reveals a need for incarceration
to protect the public, for example.) We have concluded only
that Young’s convictions for conspiring to distribute narcot-
ics, distributing a controlled substance, and money launder-
ing do not constitute violent offenses that categorically
disqualify Young for a departure under section 5K2.13. As
it otherwise considers the propriety of a departure, how-
ever, the court need not blind itself to the circumstances
underlying his offenses. Cf. United States v. Purchess, 107
F.3d 1261, 1271-72 (7th Cir. 1997) (court may depart upward
on the basis of relevant conduct).
With respect to Young’s request for a downward depar-
ture based on his mental condition, see § 5H1.3, which is a
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 65
disfavored ground for departure, we conclude that the
district judge did not abuse his discretion in denying the
request without conducting an evidentiary hearing. The
Sentencing Guidelines do not invariably obligate the court
to conduct an evidentiary hearing to resolve a contested
issue, so long as the sentencing court gives both parties the
opportunity to present the information that it needs to
decide the matter. U.S.S.G. § 6A1.3(a); e.g., United States
v. Beltran, supra, 109 F.3d at 369; see also Sentencing
Guidelines, 88 GEO. L.J. 1483, 1519 n.2052 (2000) (collect-
ing cases). Here, the papers that Young submitted to the
court in support of his departure requests were sufficient to
apprise the court of his mental condition. In denying the
request, Judge Lindberg did not question the veracity of
Young’s representations; he simply found them insufficient
to warrant a departure from the guideline sentencing
range. See 1999 WL 731790, at *4. Under these circum-
stances, the judge was not obligated to conduct an eviden-
tiary hearing.
S. Community Restitution
In controlled substance prosecutions such as this one, in
which there is no identifiable victim of the offense, 18
U.S.C. § 3663(c) permits the sentencing judge to order the
payment of restitution commensurate with the public harm
caused by the crime. However, section 3663(c)(2)(B) further
provides that the amount of restitution ordered in such a
case shall not exceed the amount of the fine imposed for the
offense. The district court ordered both Young and Cox to
pay community restitution. See R. 730, Cox Sentencing Tr.
31-32, and R. 682; R. 745-3, Young Sentencing Tr. 47, and
R. 681. However, because the court did not order either of
them to pay a fine, they contend that the restitution order
was plainly erroneous. The government concedes the error,
and in view of the unequivocal terms of section 3663(c)
(2)(B), we agree that the restitution obligations imposed on
66 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623
Young and Cox were plainly erroneous. It appears that the
court made the same error with respect to the other de-
fendants as well. See R. 748, Choice Sentencing Tr. 21-22,
and R. 691; R. 601, B. Mansoori Sentencing Tr. 51, and
R. 569; R. 690 (M. Mansoori). We therefore vacate and
remand the sentences of all defendants for correction of
that error.
III.
For all of the foregoing reasons, we AFFIRM the defen-
dants’ convictions but VACATE their sentences and REMAND
for re-sentencing in accordance with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-29-02