United States v. William Ford

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17‐1650, 17‐2854, 17‐2858, 17‐2877, 17‐2899, 17‐2917,
17‐2918, 17‐2931, 17‐3063, & 17‐3449
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
BYRON BROWN, et al.,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 13 CR 288 & 13 CR 774 — John J. Tharp, Jr., Judge.
____________________
ARGUED JUNE 3, 2020 — DECIDED AUGUST 28, 2020
____________________
Before SYKES, Chief Judge, and WOOD and ST. EVE, Circuit
Judges.
WOOD, Circuit Judge. This case offers a window into the vi‐
olent and ruthless world of the Hobos street gang, which op‐
erated in Chicago from 2004 to 2013. With the credo, “The
2 Nos. 17‐1650 et al.
Earth is Our Turf,” the Hobos worked to build their street rep‐
utation and control certain areas on Chicago’s south side. Ten
gang members were charged and convicted for violations of
the Racketeer Influenced and Corrupt Organizations (RICO)
Act, among other crimes. Nine of those defendants have
joined in the present appeals: Byron Brown, Gabriel Bush,
Gregory Chester, Arnold Council, William Ford, Rodney
Jones, Paris Poe, Derrick Vaughn, and Stanley Vaughn. We
find no reversible error in the convictions for any of the de‐
fendants. Nor do we find any error in any of the sentences,
except for Chester’s, which must be revisited.
I
A
The defendants now before us were the core group that
formed the Hobos. Although the Hobos did not have a struc‐
ture as firmly hierarchical as that found in many gangs, it did
have a leader (Chester) and senior members (Council, Bush,
and Poe). Most members had roots in other gangs, such as the
Gangster Disciples (GDs) and Black Disciples (BDs).
We need not recount all of the Hobos’ multifarious crimi‐
nal activities. We focus instead on the specific incidents the
government emphasized at trial. Where necessary, we include
further details. Generally speaking, those activities fell into
three broad categories: drug trafficking, murder (including at‐
tempted murder), and robbery.
Drug Trafficking. The Hobos ran many drug lines through‐
out Chicago’s south side. Defendant Bush managed two her‐
oin lines, known as “Cash Money” (identifiable by the bag‐
gies’ green dollar signs) and “X‐Men” (identifiable by the red
Xs on the baggies). Ford and others sold the Cash Money line
Nos. 17‐1650 et al. 3
at 47th Street and Vincennes Avenue, and Hobo‐associate
Kevin Montgomery sold Cash Money at 51st Street and Mar‐
tin Luther King Drive. Members of another gang known as
Met Boys sold X‐Men at 51st Street and Calumet Drive. Bush
also had a drug line at the Ida B. Wells housing project.
Council and other Hobos oversaw drug lines at the Robert
Taylor Homes, selling “Pink Panther” marijuana and crack co‐
caine (so named for the Pink Panther logo on their baggies).
Derrick Vaughn (to whom we refer as Derrick, to differentiate
him from his brother and co‐defendant, to whom we refer as
Stanley) sold cocaine at 47th and Vincennes. The Hobos also
supplied drugs to each other: Council provided marijuana
and crack cocaine to various Hobos, and Chester supplied
heroin.
Murders and Attempted Murders. The Hobos liberally used
violence to retaliate against rival gangs, harm people who co‐
operated with law enforcement, and defend their drug traf‐
ficking territory. The Hobos had long‐running rivalries with
several other gangs, including the BDs and associated BD fac‐
tions such as New Town and Fifth Ward, the Row GDs, and
the Gutterville Mickey Cobras. These rivalries precipitated
numerous shootings.
For example, in April 2006, Fifth Ward BD Cordale Hamp‐
ton and his uncle were driving when they were shot at by a
passenger in a car driven by Stanley. Both were hit—Hamp‐
ton on his neck, side, leg, and arm, and his uncle on his head—
but both survived. Two months later, in June 2006, Chester
was leaving his girlfriend’s apartment, which was located in
the New Town BDs’ territory, when he was shot (amazingly
not fatally) 19 times. In September 2006, occupants of a car
4 Nos. 17‐1650 et al.
shot at Chester while he was at a southside car wash. The bul‐
lets struck him but did not kill him, and Poe fired back at the
car to protect Chester. Chester, believing the BDs were re‐
sponsible for these shootings, put out a $20,000 bounty on the
leader of the New Town BDs, Antonio Bluitt. The bounty,
however, did not intimidate Bluitt. Instead, Bluitt announced
a retaliatory bounty on Chester and Council, sparking more
violence.
In February 2007, Derrick was at a local Hobos hangout, a
barbershop, when he saw Fifth Ward BD Devin Seats outside
a nearby shop. Derrick opened fire, hitting Seats multiple
times. In June 2007, while riding in a car with Ford, Council,
and Chad Todd (a Hobo‐turned‐cooperator), Bush shot at
Bluitt‐associate Andre Simmons and Simmons’s cousin Dar‐
nell. He hit them several times, causing Andre to lose an eye.
Later that month, Bush, Todd, and the Vaughn brothers shot
New Town BD Jonte Robinson nine times as he was walking
into a daycare center to pick up his son.
In July of the same year, Bush, Ford, and Todd spotted sev‐
eral teenagers they thought were Fifth Ward BDs. Bush and
Ford shot the teenagers, striking one of them in the face. The
Hobos were mistaken: the victims had no gang affiliation. A
month later, Council and Bush shot New Town BD Eddie
Jones.
In September 2007, Bush, Council, Derrick, Ford, Stanley,
and others made good on Chester’s bounty by killing Bluitt
and Fifth Ward BD Gregory Neeley in a drive‐by ambush.
Bluitt, Neeley, and others were sitting in a Range Rover after
leaving a funeral when the attackers drove by in a four‐car
caravan, firing at the Range Rover. That same month, Bush
Nos. 17‐1650 et al. 5
and Council killed Terrance Anderson, who managed a com‐
peting drug line. Bush and Council shot Anderson five times
while he was attending a reunion party for the Robert Taylor
Homes.
Rival gang members were not the Hobos’ only targets.
They also retaliated against cooperators. The trial evidence
highlighted two such victims—Wilbert Moore and Keith Dan‐
iels—both of whom the defendants killed because of their
work for law enforcement.
Moore dealt drugs in the Ida B. Wells housing projects. In
2004, he started cooperating with the Chicago Police Depart‐
ment (CPD). Information he provided led to the search of an
apartment from which Council supplied crack cocaine. Dur‐
ing the search, CPD officers seized cocaine, crack cocaine, her‐
oin, cannabis, and firearms from the apartment. Council fig‐
ured out that Moore was the informant.
In January 2006 Council and Poe, with Bush’s assistance,
killed Moore. Bush spotted Moore’s car parked outside of a
barbershop and made a phone call. Council and Poe quickly
arrived on the scene. As Moore left the barbershop, Poe fired
at him from Council’s car. Moore attempted to flee, but he
tripped in a nearby vacant lot, allowing Council and Poe to
catch up to him. Poe immediately shot him in the face.
Daniels was Council’s brother and a Hobo. In 2011 he be‐
gan providing information about the Hobos to law enforce‐
ment. He also participated in three controlled buys of heroin
from Chester and another Hobo, Lance Dillard. Suspecting
something, the Hobos decided to silence him. Ford sneaked
into Daniels’s apartment, pulled out a gun, and told Daniels
to take a ride with him. Daniels refused and, soon after, the
6 Nos. 17‐1650 et al.
FBI temporarily relocated him. But that did not prove to be
enough.
On April 4, 2013, Daniels testified about the Hobos and his
controlled buys before a federal grand jury. A week later,
Chester was arrested on a criminal complaint that alleged that
Chester distributed heroin to Daniels. Chester told the arrest‐
ing agents that he knew Daniels was the informant. Shortly
after Chester’s arrest, Poe cut off his electronic monitoring
bracelet, and on April 14, 2013, Poe murdered Daniels in front
of Daniels’s girlfriend and children.
Robberies. The Hobos frequently conducted robberies,
home invasions, and burglaries. A few vivid examples suffice.
At a nightclub in June 2006, Poe robbed NBA basketball
player Bobby Simmons of a $100,000 necklace. A car chase fol‐
lowed, and Poe shot at Simmons’s car from Council’s car.
Later in 2006, Brown, Jones, and a Met Boy entered a drug
dealer’s home and shot, punched, and stabbed him for infor‐
mation about the location of his drugs. They took $20,000
worth of marijuana and gave some to Council.
In 2007, Bush, Council, and Stanley robbed a heroin sup‐
plier. In July 2008, Brown and Jones burglarized a home.
While fleeing from police, they crashed into a car driven by
Tommye Ruth Freeman, an elderly woman, killing her. In No‐
vember 2008, Council and three other Hobos robbed a cloth‐
ing store called Collections, stealing merchandise worth
$17,488.
We could go on, but the picture is clear: the Hobos were a
violent, dangerous gang, and each of the defendants in this
case was an active participant in its activities.
Nos. 17‐1650 et al. 7
B
Before we proceed to the defendants’ many contentions,
we offer a brief overview of the charges. Of the nine defend‐
ants involved in these appeals, three pleaded guilty to one
count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d)
(Count 1): Brown, Jones, and Stanley. Brown also pleaded
guilty to one count of murder in aid of racketeering, in viola‐
tion of 18 U.S.C. § 1959(a) (Count 4), for the murder of Eddie
Moss. The remaining six defendants proceeded to trial. The
following chart shows who among the latter group was con‐
victed and for what:
Council
Chester
Derrick
Bush
Ford
Poe
# Charge (Violated Statute)
1 RICO Conspiracy (18 U.S.C. G1 G G G G G
§1962(d))
Murder of Moore in Aid of
2 Racketeering (18 U.S.C. G G
§1959(a)(1))
Murder of Anderson in Aid of
3 Racketeering (18 U.S.C. G
§1959(a)(1))
Murder of Bluitt in Aid of
4 Racketeering (18 U.S.C. G
§1959(a)(1))
1 The letter “G” indicates guilty; “NG” indicates not guilty.
8 Nos. 17‐1650 et al.
Murder of Neeley in Aid of
5 Racketeering (18 U.S.C. G
§1959(a)(1))
Obstruction of Justice through
6 Murder of Daniels G
(18 U.S.C. §§1503(a) & (b)(1))
Use of Firearm During Crime
7 of Violence (Robbery of Collec‐ G
tions) (18 U.S.C. §924(c))
8 Possession of Firearm by a G
Felon (18 U.S.C. §922(g))
Possession with Intent to Dis‐
9 tribute Marijuana (21 U.S.C. G
§841(a)(1))
Possession of Firearm in Fur‐
10 therance of Drug Trafficking NG
Crime (18 U.S.C. §924(c))
The trial lasted about four months, and more than 200 wit‐
nesses testified. The jury found all six defendants guilty of all
counts, except for the charge against Ford in Count 10. The
district court sentenced all the defendants to lengthy terms in
prison.
Eight of the defendants have appealed from their convic‐
tions, their sentences, or both; defendant Jones’s attorney has
filed a no‐merit brief pursuant to Anders v. California, 386 U.S.
738 (1967). We have sorted the myriad arguments before us
into five different major headings: Section II addresses the
sufficiency of the evidence presented at trial; Section III tack‐
les various evidentiary challenges; Section IV addresses sen‐
tencing contentions; Section V discusses Brown’s individual
Nos. 17‐1650 et al. 9
arguments; and Section VI addresses the Anders brief for de‐
fendant Jones.
II
We begin with the defendants’ challenges to the suffi‐
ciency of the evidence. Such challenges face a high hurdle: we
afford great deference to jury verdicts, view the evidence in
the light most favorable to the jury’s verdict, and draw all rea‐
sonable inferences in the government’s favor. United States v.
Moreno, 922 F.3d 787, 793 (7th Cir. 2019). We may set aside a
“jury’s verdict on the ground of insufficient evidence only if
no rational trier of fact could have agreed with the jury.”
Cavazos v. Smith, 565 U.S. 1, 2 (2011).
A. Count 1 – RICO Conspiracy
1. Joint Arguments
Chester, Council, Bush, Derrick, Ford, and Poe all argue
that there was insufficient evidence to support the jury’s
guilty verdicts on Count 1. As we noted before, Count 1
charged these six under RICO with conspiring to engage in a
racketeering enterprise known as the Hobos, in violation of 18
U.S.C. § 1962(d). To prove a RICO conspiracy, “the govern‐
ment must show (1) an agreement to conduct or participate in
the affairs (2) of an enterprise (3) through a pattern of racket‐
eering activity.” United States v. Olson, 450 F.3d 655, 664 (7th
Cir. 2006); see Salinas v. United States, 522 U.S. 52, 61–66 (1997).
The defendants contend that there was insufficient evidence
that the Hobos were an enterprise.
Under the RICO statute, an “enterprise” includes “any in‐
dividual, partnership, corporation, association, or other legal
entity, and any union or group of individuals associated in
10 Nos. 17‐1650 et al.
fact although not a legal entity.” 18 U.S.C. § 1961(4). An asso‐
ciation‐in‐fact includes any “group of persons associated to‐
gether for a common purpose of engaging in a course of con‐
duct.” Boyle v. United States, 556 U.S. 938, 946 (2009). The Su‐
preme Court reads this definition broadly. An association‐in‐
fact under RICO need not have any structural features beyond
“a purpose, relationships among those associated with the en‐
terprise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose.” Id.
The defendants argue that the government failed to prove
the necessary agreement. They admit that they came together
at different times to engage in crimes, but they contend that
they were no more than “independent participants involved
in unrelated criminal activity operating [without a] common
purpose.” They emphasize that the Hobos had no rules. Alt‐
hough most gangs allegedly have initiations, treasurers, dues,
and manifestos, the Hobos did not bother with those formali‐
ties.
The defendants also dispute the government’s contention
that the Hobos’ loyalty and protection of one another was in‐
dicative of common purpose. The evidence on which the gov‐
ernment relies, they argue, showed only that this bond existed
in certain individual cases, rather than being a feature for all
members of the gang. For example, while Chad Todd initially
claimed that the Hobos protected one another, he later admit‐
ted that he was willing to kill only for Bush and not for any
other Hobo. Todd also testified that at one point Bush wanted
to kill the Vaughn brothers for attempting to extort him.
Finally, the defendants assert that the government failed
to prove that the Hobos had an internal hierarchy, and with‐
Nos. 17‐1650 et al. 11
out any pecking order, there could be no coordination or com‐
mon purpose. The government labeled Chester as the leader
of the Hobos, but Todd testified that he never saw Chester
send money down to any members of the gang below him,
and he never saw people send money up to Chester. Each of
the six of them, the defendants argue, did no more than en‐
gage in “[a]ccidentally parallel” criminal activity that hap‐
pened occasionally to overlap; they shared no coordinated
purpose.
Perhaps that is one way to view the evidence, but it is not
the only one. The defendants’ course of conduct, “viewed in
the light most favorable to the verdict, was neither independ‐
ent nor lacking in coordination.” United States v. Hosseini, 679
F.3d 544, 558 (7th Cir. 2012). Together the defendants worked
to control an exclusive territory. They earned money through
drug dealing and robberies, protected each other, and killed
rival gang members and others who posed threats, including
government cooperators.
Many witnesses testified that the gang was a distinct, iden‐
tifiable group. We name a few. Jones and Todd (Hobos who
became cooperators) confirmed that an organization called
the Hobos existed and they were members. Todd considered
Derrick, Stanley, and Ford to be Hobos, and Chester to be the
leader of the Hobos. He also said that Council, Poe, and Bush
each had a “position of authority.” The jury reasonably could
see this as evidence of a hierarchy, albeit a loose one. Jones
testified that Council, Bush, Derrick, Ford, and Chester,
among many others, were also Hobos. Bland and Montgom‐
ery described the Hobos as a gang. Cashell Williams, a Fifth
Ward BD, testified that his gang had a rivalry with the Hobos.
12 Nos. 17‐1650 et al.
Additional evidence showed that the Hobos were not just
a group of criminals acting individually. They protected each
other and retaliated on behalf of one another. For example, all
the trial defendants except for Poe were involved in the mur‐
ders of Bluitt and Neeley. In so doing, they were carrying out
Chester’s orders. In addition, Bush, Council, Ford, and Todd
shot the Simmonses, and Bush, Derrick, Todd, and others shot
Jonte Robinson. The jury was entitled to conclude that the Ho‐
bos shot the BDs to retaliate against a rival gang and to control
Hobos territory.
And this was not all. Many other crimes illustrated the re‐
lationships among the Hobos and their network. Council and
Poe murdered Moore based on a tip from Bush. Council and
Bush murdered Anderson. Council and Poe robbed Bobby
Simmons. And the Hobos shared weapons to commit these
crimes.
The jury also heard evidence about the defendants’ coop‐
erative drug trafficking. As we noted earlier, Bush ran the
Cash Money and X‐Men drug lines, supplying the drugs and
receiving the proceeds. Council operated the Pink Panther
drug line. They did not run these drug lines alone. Ford man‐
aged certain Cash Money drug spots, and Montgomery col‐
lected money for Bush. Bush and Council occasionally used
the same apartment to package drugs. This was evidence
showing that the Hobos’ drug activity was interconnected
and a source of income for the gang.
The Hobos also showed their unity through tattoos and
hand signs. Chester’s tattoo says “Hobo” and “The Earth Is
Our Turf,” with images of firearms, a bag of money, and two
buildings. Poe has Hobos tattoos. One says “Cheif [sic] Hobo”
and the other says “The Earth Is Our Turf” and “Hobo.”
Nos. 17‐1650 et al. 13
Ford’s tattoo says “hobo 4Life.” Poe, Chester, and other Ho‐
bos also stitched “Hobo” into their cars’ headrests.
Although there is much more evidence to the same effect
in the record, we have no need to rehearse all of it. Bearing in
mind the standard of review for challenges to the sufficiency
of the evidence, we have no trouble concluding that the evi‐
dence before this jury was sufficient to establish a RICO en‐
terprise.
2. Derrick Vaughn
Derrick contends that even if there was a Hobos enter‐
prise, he was not a member of it and he did not conspire with
the Hobos. He concedes that he sold a small quantity of drugs
and was present at the scene of several Hobos crimes, but he
insists that there was no evidence that he was a participant
(rather than a mere bystander) in those crimes.
In order to support Derrick’s conviction on Count 1, the
government was required to prove “that another member of
the enterprise committed ... two predicate acts and that [Der‐
rick] knew about and agreed to facilitate the scheme.” United
States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018) (internal
quotation marks omitted). “It did not … need to show that he
was personally involved in two or more of the predicate acts.”
Id.
The record contains ample evidence of Derrick’s partici‐
pation in the Hobos’ racketeering activity. For example, in
recorded conversations between Derrick and Courtney John‐
son (a government cooperator), Derrick admitted to Johnson
that he participated in the Bluitt and Neeley murders. He de‐
scribed hearing his co‐conspirators’ gunshots and mentioned
that he saw the victims dead. Even though Derrick may not
14 Nos. 17‐1650 et al.
specifically have uttered the word “Hobos,” he nevertheless
revealed his ties to and knowledge of the Hobos when he
commented that the purpose of the murders was to retaliate
on Chester’s behalf because the BDs earlier had shot Chester.
Derrick also described shooting Seats: “So I come from
around the gate I boom, boom, boom[.]” And Derrick dis‐
cussed the Hobos’ attempts to eliminate the BD’s competing
drug trafficking: “[T]hey had a line down there … we put a
stop to that.”
Several of Derrick’s co‐defendants also implicated him. In
a recorded conversation, Ford mentioned Derrick’s involve‐
ment in the Bluitt and Neeley murders. Jones similarly testi‐
fied that Derrick was a passenger in Ford’s car during the
drive‐by murders of Bluitt and Neeley and that Derrick was
armed.
The jury was entitled, based on the evidence before it, to
conclude that Derrick shot Seats as part of the conspiracy.
Todd testified that he saw Derrick shoot Seats. Although Seats
himself did not see the shooter, Seats testified that he saw Der‐
rick’s Grand Prix near the barbershop where he was shot and
that Derrick had threatened to kill him earlier the same day.
Derrick emphasizes that Seats described their dispute as per‐
sonal and unrelated to their respective gang affiliations, and
so, in his view, the shooting could not have been part of a con‐
spiracy. But once again, the jury did not have to accept that
interpretation of the evidence. And this jury did not. There
was also a recorded conversation in which Derrick told John‐
son that he shot Seats after seeing Fifth Ward BDs near the
barbershop. The jury evidently credited this admission and
found that the shooting furthered the conspiracy. In sum,
Derrick’s individual attack on the sufficiency of the evidence
Nos. 17‐1650 et al. 15
to support his conviction on Count 1 fares no better than the
collective argument.
B. Count 2 and Additional Findings – Moore’s Murder
Council and Poe were the only two defendants charged
with Moore’s murder. They both argue that there was insuffi‐
cient evidence to support their convictions on this Count,
which charged them with murdering Moore in aid of the Ho‐
bos racketeering conspiracy, in violation of 18 U.S.C.
§ 1959(a)(1). Bush also joins this argument insofar as it bears
on the jury’s special findings in Count 1 connecting him to
Moore’s murder. The jury made the Additional Findings that
the murder was committed “because Moore was a witness in
any prosecution or gave material assistance to the State of Il‐
linois in any investigation or prosecution, either against the
defendant or another person,” and that “[the murder] was
committed in a cold, calculated, and premeditated manner
pursuant to a preconceived plan, scheme, and design to take
a human life by unlawful means, creating a reasonable expec‐
tation that the death of a human being would result there‐
from.”
The record contains ample evidence that supports both
Council’s and Poe’s convictions and the Additional Findings.
Several witnesses implicated the three defendants. Kevin
Montgomery, who managed one of Bush’s drug lines, testi‐
fied that he was in Bush’s car near 43rd Street and Langley
Avenue when he heard Bush say on his phone that “this blue
thing is out here,” referring to a blue car parked in front of the
barbershop. Montgomery also testified that a few minutes
later, Council and Poe pulled up in a Chevy Malibu. Mont‐
gomery saw Poe fire a .40 caliber firearm from the back pas‐
senger window. Bush and Montgomery then left the scene.
16 Nos. 17‐1650 et al.
That night, Bush reported to Montgomery that Moore had
been killed. Bush remarked, “I just seen that whip [car] out
there, you know. I wasn’t looking forward to that either. … So
I made that call.” He also told Montgomery that Council and
Poe “got” Moore, explaining that Council and Poe chased
Moore, Moore was “whipping” Council, and then Poe walked
up and shot him. Bush said they killed Moore because Moore
“sent the feds to [Council’s] crib” and they “found a half a
book [kilo] of coke and a chopper [assault rifle].”
People who lived in the surrounding area corroborated
this account. Alan Pugh lived in an apartment building on
Langley Avenue. Through a window he saw a Black man
“running for his life,” chased by another Black man as a red
Mitsubishi Galant drove parallel to them. The first man ran
into a vacant lot, where he slipped near a van. The second was
“upon him almost instantly” and shot him in the head. A third
man got out of the red car, walked to the victim, and then the
two men “calmly” left in their car. Tiajuana Jackson, who
lived nearby, testified that she heard gunshots, ran down‐
stairs, and saw a maroon vehicle speeding east on 43rd Street
before making a left on Langley.
Offering further support, Marcus Morgan, a Met Boy, tes‐
tified that, while housed together at Cook County Jail, Poe
told him that he killed Moore. Rodney Jones testified that
Council told him that Moore had sent the police to Council’s
house. And Poe told Jones that Moore was holding his hands
up, but Poe shot him anyway. Brian Zentmyer, Poe’s cellmate,
testified that Poe bragged about Moore’s murder and ex‐
plained that he killed Moore because Moore “turned state ev‐
idence on another Hobo,” Council.
Nos. 17‐1650 et al. 17
Physical evidence corroborated the witnesses’ testimony.
Casings were recovered near the barbershop and near
Moore’s body, suggesting that the shooting started near the
barbershop and continued into the vacant lot. A .40 caliber
cartridge was found near the blue car, corroborating Mont‐
gomery’s testimony about the type of weapon. Moreover,
toolmark analysis established that one of the guns used in
Moore’s murder had also been used in the shooting of
Cordale Hampton and his uncle—also a Hobos operation.
Council, Poe, and Bush argue that Montgomery’s and
Jones’s testimony was incredible as a matter of law. They
point to several inconsistencies. First, Montgomery described
Council’s car as a burgundy “boxed” Chevy Malibu, whereas
Pugh described a red Mitsubishi Galant. In addition, Mont‐
gomery originally stated that Bush was driving his own tan
Pontiac Bonneville, but then later he said that Chester owned
the car. Montgomery also testified that Bush had told him that
Poe shot and killed Moore after Moore and Council were
fighting. Yet Pugh did not mention a fight in his testimony. In
addition, the defendants point to discrepancies between
Montgomery’s and Pugh’s descriptions of the route Council
took in following Moore. They also note that while Jones tes‐
tified that Poe told him that he put his gun “up under a van”
to shoot Moore, no shell casings were found under the van.
The defendants urge that these inconsistencies, added to the
fact that Montgomery and Jones had “every incentive to
falsely tailor a story to fit … law enforcement’s needs,” render
the testimony incredible as a matter of law.
Defendants overstate the problems. A determination that
testimony is incredible is reserved for extreme situations
18 Nos. 17‐1650 et al.
where, for example, “it would have been physically impossi‐
ble for the witness to observe what he described, or it was im‐
possible under the laws of nature for those events to have oc‐
curred at all.” United States v. Conley, 875 F.3d 391, 400 (7th
Cir. 2017). Nothing of that magnitude exists here; we see only
ordinary failures to recall with specificity, or perhaps dissem‐
bling. We do not dispute the basic point that there were incon‐
sistencies among the witnesses’ accounts, but the jury was en‐
titled to decide which parts to credit and which to reject. As
the district court noted, “for all we know, the jurors did reject
the entire testimony of one or more of these witnesses, which
would still leave sufficient evidence to convict.” Moreover,
“[i]t is the jury’s job, and not ours, to gauge the credibility of
the witnesses and decide what inferences to draw from the
evidence.” United States v. Stevenson, 680 F.3d 854, 857 (7th Cir.
2012). “We do not second guess such determinations on ap‐
peal.” Id. The jury believed that the three defendants partici‐
pated in the murder of Moore, and they have given us no rea‐
son to question that decision.
Next, the defendants argue that even if they actually com‐
mitted the murder, the government failed to present sufficient
evidence that it was “for the purpose of … maintaining or in‐
creasing position in” the Hobos enterprise, as required under
18 U.S.C. § 1959(a)(1). The question here is whether there was
evidence permitting the jury to “infer that the defendant com‐
mitted his violent crime because he knew it was expected of
him by reason of his membership in the enterprise or that he
committed it in furtherance of that membership.” United
States v. DeSilva, 505 F.3d 711, 715 (7th Cir. 2007) (internal quo‐
tation marks omitted).
Nos. 17‐1650 et al. 19
The government’s theory was that Moore was murdered
because he cooperated with the authorities and was the (un‐
named) affiant on a search warrant for Council’s residence.
The defendants respond that there is no documentary evi‐
dence that supports this contention, and that the theory is
based entirely on the testimony of CPD Officer Edwin Utre‐
ras, who prepared the search warrant affidavit. Moreover, the
defendants argue, even if Moore was the informant, there was
no evidence that Council knew this, nor any evidence that this
information was communicated to Poe or Bush. Finally, the
defendants say, even if we accept the government’s position
that Council knew that Moore was the informant, “at best the
government’s evidence established that the murder of Wilbert
Moore was committed for personal revenge.” The criminal
case that resulted from the search was dismissed well before
the murder, and so (they conclude) the only possible motive
for the murder would be revenge.
We begin with the defendants’ argument that there was
insufficient evidence that Moore had cooperated against
Council. As the district court noted, this argument was “fully
vetted at a Franks [v. Delaware, 438 U.S. 154 (1978)] hearing on
the subject of whether the search warrant for Council’s apart‐
ment was based on false information.” The hearing estab‐
lished that “Moore had in fact acted as an informant and sup‐
plied the basis for the search warrant.” We see no reason to
overturn that assessment.
Next, contrary to the defendants’ contentions, there was
evidence that the Hobos knew that Moore had snitched on
Council. Montgomery testified that Bush told him Moore was
killed because Moore “sent the feds to [Council’s] crib,”
where they “found a half a book of coke and a chopper.”
20 Nos. 17‐1650 et al.
Council also told Jones that Moore sent the police to his house,
and Poe told Zentmyer that he killed Moore because Moore
“turned state evidence” on Council. The jury chose to credit
at least one of these witnesses. Moreover, although at the time
of Moore’s murder Council no longer faced charges based on
the search, there was ample evidence that the Hobos had an
interest in punishing cooperators and deterring further coop‐
eration. Personal revenge might have been a factor in Moore’s
demise, but a jury could reasonably find that maintaining or
advancing their position in the Hobos was another.
Finally, the defendants argue that there was insufficient
evidence that Moore’s murder was “committed in a cold, cal‐
culated and premeditated manner pursuant to a preconceived
plan, scheme and design.” Under Illinois law, first‐degree
murder does not carry a life sentence unless certain aggravat‐
ing factors exist. Premeditation is one such factor. It requires
a “substantial period of reflection or deliberation.” People v.
Williams, 193 Ill. 2d 1, 31 (2000). That deliberation must take
place over “an extended period of time.” Id. at 37. The defend‐
ants argue that Moore’s murder does not satisfy that element,
because only a few minutes elapsed between when Bush
placed a call stating that the “blue thing is out here” and when
Council and Poe drove up and began shooting at Moore.
But there is no reason why we should limit the relevant
time to the period between Bush’s call and the shooting. A ra‐
tional jury could conclude that the group had hatched its plan
to murder Moore much earlier. Bush made a call referring
only to “the blue car,” yet Council and Poe knew just what he
meant. They showed up instantly and began shooting. Fur‐
thermore, the search of Council’s “crib” occurred about 18
months before Moore’s murder. This was enough to permit
Nos. 17‐1650 et al. 21
the jury to find that Moore’s murder was cold, calculated, and
premeditated.
C. Count 3 – Anderson’s Murder
Count 3 alleged that Bush murdered Terrance Anderson
in aid of the racketeering enterprise, in violation of 18 U.S.C.
§ 1959(a). Bush argues, once again, that there was insufficient
evidence to support the jury’s guilty verdict. Council joins
Bush in attacking the sufficiency of the evidence for the jury’s
related special findings that Council’s and Bush’s racketeer‐
ing activity included the commission, or at least aiding and
abetting, of Anderson’s murder.
Bush does not challenge the finding that he shot Anderson
at the reunion party for the Robert Taylor Homes. He argues
instead that he did not have the requisite “intent to kill” An‐
derson. It is hard to take this point seriously, given the fact
that Bush pleaded guilty in state court to the second‐degree
murder of Anderson. There he stated under oath that he was
guilty of the charge that he “without lawful justification, in‐
tentionally and knowingly shot and killed Terrance Anderson
while armed with a firearm, and that, at the time of the killing
[he] believed the circumstances to be such that if they existed
would justify or exonerate the killing under the principle [of
self‐defense], that his belief in this was unreasonable, and con‐
stitutes a violation of [second‐degree murder statute].” These
admissions easily support the finding that he intended to kill
Anderson.
Other evidence reinforces that finding. For instance, Jones
testified that Council told him that Council and Bush mur‐
dered Anderson: Council “grabbed [Anderson], slammed
him to the ground and hit him,” and then Bush “grabbed him
22 Nos. 17‐1650 et al.
and slammed him and shot him.” Todd testified about several
conversations about Anderson he had with Bush. Bush told
Todd that Anderson was one of his rivals, because Anderson
sold drugs at the Ida B. Wells projects, where Bush also sold
drugs. Another time, Todd was sitting in a car with Bush,
Council, and Ford, when they saw Anderson walking on the
street. Ford suggested that Bush should shoot Anderson, but
Bush dismissed the idea because there were pole cameras in
the area. In addition, after Anderson shot Bush, Bush told
Todd that he had been “stalking” Anderson’s prison release
date so that he could kill him.
In a recorded conversation, Ford told Todd that one of the
Brown twins saw Bush kill Anderson. Kevin Montgomery tes‐
tified that Bush had told him about the Anderson murder.
Bush described how he caught Anderson off guard: he “crept
up through the bushes” where Anderson was dancing and
“started busting at [him].” When Anderson ran, Council be‐
gan “busting at him from the other direction.”
Anderson’s girlfriend confirmed the hostility between
Bush and Anderson. She had seen Anderson shoot Bush in the
hand. Anderson’s brother attended the Robert Taylor reunion
party with Anderson. He saw Bush shooting a firearm (alt‐
hough he could not see the intended target), and then he saw
Bush and Council run and jump into a vehicle.
Physical evidence also supported these accounts. A base‐
ball hat containing Council’s DNA was recovered from the
scene. In addition, Anderson’s autopsy showed that bullets
entered from both his front and back, suggesting multiple
shooters.
Nos. 17‐1650 et al. 23
This evidence amply supports the jury’s finding that Bush
shot Anderson with the intent to kill him. In any event, an in‐
tent to kill is not essential to find a first‐degree murder under
Illinois law. A person commits first‐degree murder if he in‐
tends to kill, intends to do great bodily harm to another per‐
son, knows that his acts would cause the death of another per‐
son, or knows that his acts create a strong probability of death.
720 ILCS 5/9‐1. Bush’s intentionally shooting at Anderson was
enough to allow the jury to find that Bush knew, at a mini‐
mum, that his actions created a strong probability of Ander‐
son’s death. The evidence of Council’s involvement, summa‐
rized above, was also sufficient.
Bush and Council also argue that Bush did not kill Ander‐
son for the purpose of maintaining or increasing his position
within the Hobos enterprise. See DeSilva, 505 F.3d at 715. In‐
stead, they say, the evidence showed that Anderson and Bush
had personal animosities dating from an earlier incident in
which Anderson shot Bush. They postulate that there was no
evidence that the murder was related to the Hobos because
Bush was not carrying out an order.
A rational jury, however, could conclude that Bush killed
Anderson because Anderson was cutting into his drug sales
at the Ida B. Wells Homes, which Bush viewed as Hobos’ ter‐
ritory. Drug trafficking was a key source of revenue for the
Hobos, and controlling drug lines was crucial to maintaining
that income. Ample evidence supported this conclusion. An
explicit order is not required for a finding that the crime “was
expected of [Bush] by reason of his membership in the enter‐
prise or that he committed it in furtherance of that member‐
ship.” Id.
24 Nos. 17‐1650 et al.
Last, Council and Bush argue (as they did for Count 2) that
Anderson’s murder was not cold, calculated, and premedi‐
tated. They tactlessly state that “[s]hootings like the Anderson
murder occur in Chicago regularly. They involve personal
vendettas and crowded areas. There is nothing about this
murder that sets it [apart] from such ordinary shootings.”
The jury was not required to adopt such a cynical view.
Moreover, the government produced evidence allowing the
jury to find that Anderson’s murder in particular was pre‐
meditated. Bush and Anderson had a long‐standing dispute
over drug territory, and Anderson shot Bush in 2005 as a re‐
sult of this dispute. Anderson was arrested, and Bush told
Todd that he was “stalking” Anderson’s prison‐release date
so that he could kill him. He was a man of his word: Bush
seized the opportunity to attack while Anderson was on a
weekend pass from a halfway house. Council, Bush, and Ford
had also talked about shooting Anderson, but Bush passed
over one chance because of the pole cameras in the area. The
jury reasonably concluded that Anderson’s murder was the
result of discussion and planning.
D. Counts 4 and 5 – Bluitt’s and Neeley’s Murders
Derrick argues that there was insufficient evidence to sup‐
port the jury’s guilty verdicts on Counts 4 and 5, which
charged him with murdering Bluitt (Count 4) and Neeley
(Count 5) in aid of the racketeering enterprise, in violation of
18 U.S.C. § 1959(a)(1). Council, Bush, and Ford join Derrick in
arguing that the evidence was also insufficient to support the
jury’s special findings that their racketeering activity included
the commission, or aiding and abetting, of Bluitt’s and
Neeley’s murders.
Nos. 17‐1650 et al. 25
Derrick concedes that he was present at the funeral when
the murders happened, but he denies that he participated in
them. The evidence at trial permitted the jury to find other‐
wise. Cashell Williams, a Fifth Ward BD, testified that he at‐
tended the funeral with Bluitt, Neeley, and others. After they
paid respects, they got into Bluitt’s Range Rover, made a
U‐turn, and were idling when he heard Bluitt say “it’s on.”
Several cars then drove by, Williams heard gunshots, and
Bluitt and Neeley were fatally hit. Williams did not see the
shooters, but he saw Ford drive by shortly after the shooting.
In Derrick’s recorded conversations with cooperator John‐
son, Derrick described the murders. He told Johnson that the
murders were meant to retaliate against the BDs for shooting
Chester. He identified both the guns that he and Stanley car‐
ried and the cars and people involved. He also mentioned that
he tried to shoot at Bluitt and Neeley, but his gun jammed.
Jones testified that with Bush, the Vaughn brothers, Coun‐
cil, Ford, and others, he killed Bluitt and Neeley. Council had
pulled up to the spot where several Hobos were hanging out
and asked them if they had “poles,” meaning guns. He told
them that he knew where Bluitt was, mentioned the bounty
that Chester had placed on Bluitt, and stated that he was
“ready to kill for the money.” They told a Met Boy to get some
guns. Jones gave one to Brown’s twin, Brandon, and then got
in the car with Council and Brandon. They met up with Bush,
Ford, Derrick, and others in an alley. Once Bluitt was in his
car, Bush yelled “[g]o, go, go.” Council’s car was in front, with
Brandon in the front seat and Jones in the backseat. Bush was
in the second car; Stanley was in the third car; and Ford and
Derrick were in the fourth and final car. Jones testified that he
saw Derrick shooting from Ford’s car. Jones received clothes
26 Nos. 17‐1650 et al.
from Council as a reward, and Chester later arranged for
Dillard to give Jones heroin.
In recorded conversations, Ford told Todd about his par‐
ticipation in the murders. He mentioned that he expected a
reward, but Bush got offended because he was “one of the
guys.” Todd also testified. He stated that in response to Ches‐
ter’s getting shot, he went with Bush to look for and kill Bluitt.
Chester offered $20,000 for the kill, but the pair’s plan did not
work. Todd was out of town when the murders happened,
but he discussed them with Bush. Bush said he and other Ho‐
bos were in four cars and took turns shooting.
Physical evidence corroborated the testimony. A firearms
examiner testified that cartridge casings from the scene were
fired by the same gun that was used to kill Daniels. In addi‐
tion, on the day of the murders, Council changed rental cars
twice, before and after the murders. The car he was driving
during the murders, a red sedan, was consistent with eyewit‐
ness testimony.
Despite all this evidence, Derrick argues that the govern‐
ment relied almost exclusively on the recorded conversations
between Derrick and Johnson, and he contends that in these
conversations he admitted only his presence, not his partici‐
pation in the murder. Derrick emphasizes that his gun did not
work, and so he could not have participated in the murders.
He also asserts that the only other evidence to establish his
guilt came from Jones, but he argues that Jones’s testimony
was “so vague, contradictory, and incredible that it could
never be found to support a verdict of guilt beyond a reason‐
able doubt by any rational jury.”
Nos. 17‐1650 et al. 27
The jury, however, was not required to credit Derrick’s as‐
sertion that his gun did not work. And even if it did, it could
reasonably find that Derrick participated in the murders,
without shooting, on an accountability theory. Regardless of
whether he fired the gun, Derrick took affirmative steps in
furtherance of the murders by conducting surveillance before
the murders and serving as back‐up. A jury easily could find
that he helped the other Hobos kill Bluitt and Neeley. In ad‐
dition, the jury was entitled to credit Jones’s testimony. Once
again, any inconsistencies in that testimony were for the jury
to resolve. See Stevenson, 680 F.3d at 857.
The defendants also contend that the evidence of the Bluitt
and Neeley murders was insufficient to support the jury’s
special findings. Some witnesses did not see Council, Bush,
and Ford at the crime scene. Others, who did place them
there, allegedly provided inconsistent testimony. And de‐
fendants again urge that Todd and Jones were unreliable.
Once again, bearing in mind the standard of review, we
find the evidence sufficient to support the findings relating to
Council, Bush, and Ford. Jones detailed his cooperation with
them to conduct the drive‐by shooting. Ford and Derrick im‐
plicated themselves in recorded conversations. Bush orches‐
trated the caravan and yelled “go.” Williams testified that he
saw Ford during the shooting. This is enough, particularly re‐
calling again that the jury was entitled to make credibility de‐
terminations.
Finally, the defendants contend that no jury could find
that the Bluitt and Neeley murders were cold, calculated, and
premeditated. “At best,” they urge, “the evidence provided by
the government showed a haphazard and hurried collection
of people and resources to quickly confront [Bluitt] and
28 Nos. 17‐1650 et al.
[Neeley] out on the street.” They assert that nothing demon‐
strated a detailed and organized plan, thoughtfully consid‐
ered over time, which was executed in cold blood.
If the trial testimony is credited, however, premeditation
is clear. A rational jury could reasonably conclude that the
Hobos had been planning to murder Bluitt because of the
long‐running rivalry between the Hobos and BDs. The BDs
had shot Chester, and Chester had placed a bounty on Bluitt’s
head. Bush, Ford, and Todd then devised a plan to kill Bluitt.
On the day of the murders, the defendants learned that the
BDs were attending the funeral, but they did not act immedi‐
ately. Instead, Council recruited participants, they gathered
weapons, and then they met in an alley where they discussed
their plan of attack. Finally, they carried out the plan. This was
more than enough to support the jury’s finding that the two
murders were cold, calculated, and premeditated.
E. Shooting of Andre and Darnell Simmons
Bush challenges the jury’s special findings that his racket‐
eering activity included the commission, or aiding and abet‐
ting, of the attempted first‐degree murders of Andre Simmons
and Darnell Simmons. Bush argues that the only evidence in‐
troduced against him in this respect was the unreliable testi‐
mony of cooperator Chad Todd.
At trial, Todd testified that on the day of the shootings,
Bush called him and asked to meet at a nearby grocery store.
Once Todd arrived, he saw Bush sitting in the driver’s seat of
a white Impala that was parked on a side street next to the
grocery store. Ford was in the front passenger seat, and Coun‐
cil was in the rear passenger seat. Todd got into the car behind
Bush. The group sat and waited, watching a black Nissan
Nos. 17‐1650 et al. 29
Maxima that was parked in the grocery store parking lot.
When the Maxima pulled out, they followed it. Todd testified
that, at this point, Ford and Bush somehow switched seats,
Ford now driving and Bush in the front passenger seat.
After trailing the Maxima for a short time, Todd testified
that Bush pulled the sunglasses compartment down, reached
in, and pulled out a FN 5.7 firearm. Bush then instructed Ford
to lean back, Ford did so (Todd reported to the point of crush‐
ing Todd’s legs), and Bush fired past Ford’s face. Todd said
that he saw bullet holes going through the front passenger
window and heard glass shattering. Then he heard sirens and
saw an unmarked squad car behind them. They briefly eluded
the unmarked squad car, but after they got out of their car and
ran, Todd and Council were both apprehended and taken into
custody.
Bush asks us to find that Todd’s testimony is incredible.
He emphasizes that Todd did not describe how Ford and
Bush switched seats, or how it would even be possible given
the sizes of Bush and Ford and the center console in the vehi‐
cle. Bush emphasizes that Todd’s testimony throughout the
trial was riddled with inconsistencies. Todd admitted to lying
on earlier occasions to law enforcement. Furthermore, setting
aside the sufficiency of the proof that he committed the at‐
tempted murders, Bush argues that the government failed to
present sufficient evidence showing that his purpose was to
maintain or increase his position within the enterprise or that
the attempted murders were part of his racketeering activity.
The government counters that Todd’s testimony was well‐
corroborated. Todd testified that a friend of Bush’s girlfriend
rented the Impala. That friend testified at trial and confirmed
that she rented the car for Bush. After the shooting, Bush’s
30 Nos. 17‐1650 et al.
girlfriend told the friend that the car had been stolen, but dur‐
ing a later search of the car, police found documents in Bush’s
name, as well as Council’s and Bush’s fingerprints. In addi‐
tion, the police recovered cartridge casings from the scene.
The casings matched the type of gun Todd described in his
testimony and also matched the gun that was used in the
Jones and Robinson shootings. The officer who arrested
Council after the car chase corroborated this portion of Todd’s
testimony. The Simmonses also both corroborated Todd’s ac‐
count of the shooting at trial. The Simmonses testified that
they were in Andre’s Nissan in a turn line when they heard
multiple gun shots and that Andre ducked down and contin‐
ued driving, ultimately crashing into a CTA bus stop. Moreo‐
ver, in secretly recorded conversations between Todd and
Ford, Ford discussed the shooting and said that he gave away
a leather jacket to a person who helped him flee after they
crashed the car. The government finally argues that the jury
reasonably found that the murder was part of the racketeering
conspiracy because Andre Simmons was Bluitt’s friend, and
the Hobos were determined to retaliate against New Town
BDs.
The evidence relating to the Simmonses’ shooting is not
the strongest we have ever seen. Nevertheless, the jury was
entitled to credit Todd’s account, as corroborated by the evi‐
dence cited by the government. In any event, the shooting was
only one of many predicate acts on Count 1 for which the jury
found Bush responsible; it was not the subject of a substantive
act. Any error would therefore be harmless.
F. Count 6 – Obstruction of Justice
On Count 6, Poe was convicted of obstruction of justice in
violation of the “catchall” clause in 18 U.S.C. § 1503, which
Nos. 17‐1650 et al. 31
provides that a crime occurs when a person “corruptly ... in‐
fluences, obstructs, or impedes, or endeavors to influence, ob‐
struct, or impede, the due administration of justice….” After
he was convicted, Poe moved for acquittal. The district court
found that ample evidence supported Poe’s guilt, and so it
denied his motion.
We already have noted that Council’s brother, Keith Dan‐
iels, cooperated with law enforcement to make controlled
buys of heroin from Chester and Dillard. Recall, too, that after
Daniels was relocated for his safety, he testified before the fed‐
eral grand jury on April 4, 2013. On April 10, Chester was ar‐
rested on a criminal complaint charging him with distributing
heroin. The supporting affidavit provided to Chester did not
name Daniels, but it summarized the controlled transactions
and gave specific details about the buys. Chester told arrest‐
ing agents that he “knew who the informant was” and “all
[he] ever did was take [him] under my arm.” Another Hobo,
Walter Binion, was at the scene when Chester was arrested.
He left separately and later “got the paperwork” for Chester’s
case. That night, Poe cut off his electronic monitoring bracelet.
Two days later, on April 12, Chester spoke to a woman on
the phone while he was detained at Kankakee County Jail.
The conversation was recorded. Chester told the woman that
“[a] motherfucker wore a wire on me in 2011. He was working
with the Feds.” The following day, Chester spoke to Poe in
coded language. They referenced catching someone who
would end up dead. Chester told Poe, “They coming with
some other shit and god damn it, probably real soon.”
On April 14, Daniels was in the passenger seat of a car
driven by his girlfriend, Shanice Peatry. Their children were
in the back seat. Peatry testified that after she parked the car
32 Nos. 17‐1650 et al.
in front of their apartment, Poe walked toward them. He be‐
gan shooting at the driver’s seat, but then he turned his aim
to Daniels in the passenger seat as he got closer. To try to pro‐
tect his family from the gunfire, Daniels jumped out of the car.
He was knocked over by bullets. Poe walked even closer,
stood over Daniels, and then fired additional bullets at him.
Peatry testified that Poe’s face was covered by something
black, but she was able to recognize his eyes, dreadlocks, and
his distinctive gait.
After Poe left, Peatry called 911. She knew Poe from pre‐
vious interactions and identified him repeatedly: in the 911
call, a post‐incident photo array, and at trial. She also told the
911 operator that Poe’s getaway car was a gold Trailblazer.
Some evidence indicated that a second person was driving the
car and may also have fired at Daniels.
Surveillance footage corroborated Peatry’s testimony. It
showed a tan SUV driving in the area of Daniels’s apartment
at 7:27 and at 7:43 in the evening. Peatry called 911 at 7:44 p.m.
A neighbor testified that she heard gunshots and then saw a
tan SUV driving away from the scene. At 8:19 p.m., Chester
spoke to a woman on the phone, asking if she heard from Poe.
She said that she had not, and Chester told her, “He didn’t
even have to do that.” Chester said that it “was crazy” but he
“understand[s] too” because it was“[b]etter [to] be safe than
sorry.” An hour later, Chester spoke to an unidentified man.
The man told Chester, that they “got it under control. That’s
all you need to know.” The man also referenced Poe pulling
up in a “lil’ Trailblazer truck.” Chester said, “Played me like
a straight bitch,” and the man replied, “you know what you
got to resort to.” After the murder Poe left Chicago, switching
Nos. 17‐1650 et al. 33
hotels frequently. He also cut his dreadlocks. The FBI arrested
him on May 2, 2013.
In addition, the government produced evidence from
other sources. FBI Special Agent Bryant Hill testified that, con‐
sistent with Peatry’s 911 call, he had seen Poe walk with a
limp on several occasions. Zentmyer, Poe’s cellmate and a jail‐
house lawyer, testified that Poe admitted that he killed Dan‐
iels because Daniels was going to testify against Chester in a
heroin case. Poe said he cut off his electronic monitoring band,
went to Dolton, and shot Daniels in front of his kids and girl‐
friend. Last, the day after the murder Council spoke to his
(and Daniels’s) mother on the phone. Council’s mother told
him that Daniels had been killed and Council replied, “[W]hat
that boy doin’… he can’t do that in the street …I ain’t shed a
tear.”
To sustain a conviction under section 1503’s catchall pro‐
vision, “the government must prove: (1) a judicial proceeding
was pending; (2) the defendant knew of the proceeding; and
(3) the defendant corruptly intended to impede the admin‐
istration of that proceeding.” Torzala v. United States, 545 F.3d
517, 522–23 (7th Cir. 2008). A grand jury investigation can con‐
stitute a pending judicial proceeding. United States v. Aguilar,
515 U.S. 593, 599 (1995).
Poe argues that there was insufficient evidence that he
murdered Daniels. He emphasizes that there was no physical
evidence linking him to the murder—no DNA, fingerprints,
or trace evidence. Poe also asserts that he did not confess any
crimes to Zentmyer. Instead, Zentmyer came up with his
story by researching the charges against Poe using publicly
available case documents, newspapers, television programs,
and Poe’s discovery materials. In fact, Poe argues, Zentmyer
34 Nos. 17‐1650 et al.
claimed that Poe bragged about personally shooting and kill‐
ing a man in a Range Rover in front of a funeral home. This
was a reference to the Bluitt/Neeley murders, but it is undis‐
puted that Poe was in custody when they occurred.
Realizing that Peatry’s testimony stands in his way, Poe
attempts to discount her account. Poe contends that Peatry
was in a romantic relationship with Arsenio Fitzpatrick and,
in the ten days leading up to Daniels’s death, she had con‐
tacted Fitzpatrick more than 1,000 times by call and text.
Shortly after Daniels was killed, she deleted all her text and
call records from her phone. Peatry’s affair and the timing of
those deletions, Poe contends, was suspicious. Poe also high‐
lights the fact that Peatry did not initially tell law enforcement
that the shooter was wearing a mask, making them think she
could clearly identify the shooter. Moreover, at trial, she tes‐
tified for the first time that she identified Poe as the shooter
based primarily on his gait. She never mentioned this to the
police or the grand jury.
Poe tried to point the finger at other possible perpetrators:
Ricky Royal and Lamar Murphy. He notes that Royal and
Murphy had greater reason to fear Daniels’s cooperation than
he did. Daniels had never committed any crimes with Poe, but
he had committed a home invasion, robbery, and kidnapping
with Murphy and Royal. Additionally, Peatry had seen Dan‐
iels meet with Murphy and Royal while Daniels was cooper‐
ating. Peatry testified that on the day he was killed, Daniels
received a text message from his cousin warning him that two
people from “out west” were planning to kill him. Royal and
Murphy were from the west side; Poe was not. Poe also argues
that in the recorded calls between Chester and the unknown
Nos. 17‐1650 et al. 35
male, the unknown male was Murphy, indicating his connec‐
tion to the murder.
Once again, the choice between Poe’s version of these
events and the government’s was for the jury. Its conclusion
that Poe killed Daniels was adequately supported by the trial
evidence. It was the jury’s prerogative to credit both Peatry’s
and Zentmyer’s testimony. Peatry identified Poe in her 911
call and testified that she recognized Poe’s eyes, dreadlocks,
and gait. Zentmyer added details of the murder that were not
in the complaint or the news, such as that Daniels was mur‐
dered in Dolton, that Daniels was Council’s brother, and that
Daniels’s girlfriend and children saw the murder. As for the
other possible perpetrators, in the recorded jail calls, Chester
spoke to a woman, asking for Poe and telling her that “he”
“didn’t even have to do that,” seemingly referring to Poe. In
addition, the jury may reasonably have questioned why Poe
cut off his electronic monitoring bracelet, fled Chicago, cut his
distinctive dreadlocks, and moved from hotel to hotel. Juries
are “permitted to consider flight as evidence of consciousness
of guilt and thus of guilt itself.” United States v. Starks, 309 F.3d
1017, 1025 (7th Cir. 2002).
Poe follows up with an attack on the sufficiency of the ev‐
idence to show that, in killing Daniels, he intended to obstruct
a pending judicial proceeding. This is a more difficult ques‐
tion.
Three judicial proceedings bear on Count 6: the grand
jury’s investigation into Chester and Dillard; the drug charges
that were brought against Chester and Dillard; and the grand
jury’s RICO investigation. The government argues that there
was sufficient evidence that Poe was aware of both Chester’s
case and the ongoing grand jury investigation.
36 Nos. 17‐1650 et al.
As evidence that Poe knew about the grand jury’s RICO
investigation, the government points to the conversation be‐
tween Chester and Poe in which they talked about “some
other shit” coming “real soon.” It argues that the jury in the
present case could conclude that this statement was a coded
reference to the grand jury’s proceedings. The government
also notes that when Zentmyer was helping Poe with his legal
issues, Zentmyer wrote a note asking, “Was confidential
source working for state or state prosecution?” Poe crossed
out “state” and wrote “federal” and “joined [sic] task, state
and federal.”
In addition, the government argues, Poe was aware of the
more immediate federal drug charges against Chester. Fellow
Hobo Binion was present when the FBI arrested Chester, and
then there was a lengthy discussion about Daniels and Ches‐
ter’s arrest among the Hobos. Poe absconded the night of
Chester’s arrest, even though his parole was about to expire,
indicating that he learned about the arrest from Binion or an‐
other Hobo. And Poe spoke to Chester while he was in cus‐
tody, confirming that Poe knew Chester had been arrested.
Binion went to federal court after the arrest to get copies of
the “paperwork” in Chester’s case.
In response to all this, Poe admits that he knew that Ches‐
ter was in jail, but he says that he was unaware of the charges
against Chester, let alone that they were federal. With respect
to the grand jury investigation, Poe asserts that, at most, he
was informed that charges were coming, but that he was un‐
aware of any ongoing federal grand jury investigation.
We agree with Poe that the evidence supporting a finding
that he knew about the grand jury’s RICO investigation was
Nos. 17‐1650 et al. 37
weak. Although Poe may have known the FBI was investigat‐
ing the Hobos as an enterprise, “it is not enough that there be
an intent to influence some ancillary proceeding, such as an
investigation independent of the court’s or grand jury’s au‐
thority.” Aguilar, 515 U.S. at 599. It is speculative at best that
Poe knew that the investigation had reached the level of a
grand jury.
Nevertheless, there was sufficient evidence to allow a ra‐
tional jury to find that Poe knew about the pending federal
drug charges against Chester. Poe spoke to Chester while he
was in custody, and so he knew Chester had been arrested.
Chester was aware that Daniels had been working with fed‐
eral agents. In a recorded call before Daniels’s murder, he said
“A motherfucker wore a wire on me in 2011. He was working
with the Feds.” A jury could infer other Hobos also knew
Daniels was working with federal agents and knew there
would be federal charges against Chester. In addition, Zent‐
myer testified that Poe admitted to killing Daniels because he
was going to testify against Chester. When asked why Poe
committed the murder, Zentmyer stated: “He said that this
guy [Daniels] had made heroin buys off of Bowlegs [Chester].
And that’s what Bowlegs was in custody for, and this was the
main guy to testify against Bowlegs.” This is enough to sup‐
port the district court’s decision to deny Poe’s motion for ac‐
quittal on Count 6.
G. Count 7 – Robbery of Collections store
Count 7 charged Council with aiding and abetting the use,
carrying, or brandishing of a firearm during the robbery of the
Collections store, in violation of 18 U.S.C. § 924(c). “[T]o con‐
vict a defendant of a § 924(c) violation as an accomplice, the
government must prove that he had advance knowledge of
38 Nos. 17‐1650 et al.
his collaborator’s plan to use or carry a gun during the com‐
mission of the crime.” Farmer v. United States, 867 F.3d 837, 841
(7th Cir. 2017). Council concedes that he was present during
the robbery, but he contends that the government failed to
show that he had advance knowledge that his accomplices
would use firearms.
This time, we have no trouble finding ample evidence to
support the conviction. At trial, Bland testified that he, Ah‐
mad Hicks, and Pierre Skipper were sitting in a vehicle with
firearms on their laps, when Council approached them. Coun‐
cil suggested that they rob Collections, and, after they agreed,
Council passed out masks and laundry bags. The four of them
entered the store together. According to Bland, during the
robbery, Hicks had his firearm “upped,” meaning it was visi‐
ble in his hand. Once inside the store, Council and Skipper
gathered expensive jackets and other clothes while Hicks and
Bland moved the store’s employees to a backroom at gun‐
point. Store employees testified that as they were moved, they
saw a gun in one robber’s sleeve and another robber carrying
one in his hand.
Council argues that Bland’s testimony does not suffice. He
emphasizes that Bland testified at trial in order to reduce his
sentence and that inconsistencies plagued his testimony.
Originally, Bland told law enforcement that he did not know
anything about the guns used during the robbery. Then he
testified that they were not his guns. Then he testified that the
guns belonged to Hicks and Skipper, only later to testify that
the guns belonged to Hicks, but that Hicks gave him one gun
that he held for a minute and then returned.
Nos. 17‐1650 et al. 39
In addition to these problems, Council highlights the in‐
consistencies between Bland’s testimony at trial and his testi‐
mony before the federal grand jury. Bland told the grand jury
that just before the robbery, when Council approached the
car, he asked the group if they had weapons on them and they
said yes. At trial, however, Bland testified that the guns were
already sitting on their laps when Council approached.
These are minor or easily explained discrepancies. Re‐
gardless of whether Council asked his coconspirators about
guns or merely saw guns on their laps, the evidence showed
that he had advance knowledge of the guns. And although
Bland’s statements about who owned the guns were incon‐
sistent, Council’s advance knowledge did not depend on who
owned the weapons. More importantly, Bland’s testimony
about other details, such as the make and model of the guns,
was consistent. It was the jury’s job to unravel whatever dis‐
crepancies or credibility issues Bland presented.
It appears likely that the jury credited Bland’s testimony
because it was corroborated by the video captured by Collec‐
tions’ security cameras. The footage shows the robbers enter‐
ing the store and Bland and Hicks carrying guns. The employ‐
ees were herded to the back of the store while Council was
gathering jackets and other clothing items. As the district
court noted, “[n]o physical force was used to compel the em‐
ployees … which is consistent with testimony that guns were
used to gain their swift compliance. With such an orderly pro‐
cess, the jury could reasonably infer from the videotape that
using guns was part of the plan from the start.”
The evidence was therefore sufficient for the jury’s guilty
verdict on Count 7. Based on the same evidence, we also reject
Council’s related argument that the evidence failed to support
40 Nos. 17‐1650 et al.
the jury’s special finding that in the course of the robbery he
aided and abetted the “brandishing” of a firearm (as opposed
to using or carrying one).
We also briefly address, though it is not a sufficiency
argument, Council’s other challenge to Count 7. The predicate
offense for this section 924(c) charge was robbery affecting
commerce in violation of 18 U.S.C. § 1951(a) (Hobbs Act
robbery). “Robbery” under the Hobbs Act is defined as “the
unlawful taking or obtaining of personal property from the
person or in the presence of another, against his will, by
means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property, or
property in his custody or possession, or the person or
property of a relative or member of his family or of anyone in
his company at the time of the taking or obtaining.” 18 U.S.C.
§ 1951(b).
Council contends that Hobbs Act robbery is not a crime of
violence under 18 U.S.C. § 924(c)(3)(A) because it is possible
to commit this type of robbery without the use or threatened
use of force. We have squarely rejected this argument. United
States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017) (“Because one
cannot commit Hobbs Act robbery without using or
threatening physical force, … Hobbs Act robbery qualifies as
a predicate for a crime‐of‐violence conviction.”).
Alternatively, Council contends that even if Hobbs Act
robbery is a crime of violence, an inchoate offense such as
aiding and abetting does not qualify as a crime of violence.
Again, the rule is otherwise for inchoate offenses. See Hill v.
United States, 877 F.3d 717, 719 (7th Cir. 2017) (attempted
crimes); United States v. García‐Ortiz, 904 F.3d 102, 109 (1st Cir.
2018) (aiding and abetting); United States v. Grissom, 760 F.
Nos. 17‐1650 et al. 41
App’x 448, 454 (7th Cir. 2019). We thus reject both of these
legal challenges to Council’s conviction on Count 7.
H. Count 9 – Possession with Intent to Distribute
This time we address one of Ford’s convictions: one for
possession of marijuana with the intent to distribute it, in vi‐
olation of 21 U.S.C. § 841(a)(1). In February 2013, during a
lawful search of Ford’s residence, CPD officers found approx‐
imately 50 plastic baggies of user quantities of marijuana, to‐
taling 10.6 grams. The baggies were divided among five larger
bags, which were, in turn, put into one bag. Two witnesses,
an FBI agent (testifying as an expert) and a CPD officer, testi‐
fied that the marijuana was packaged for distribution.
There are three elements required for a conviction under
21 U.S.C. § 841(a)(1): (1) knowing or intentional possession of
a substance with (2) the intent to distribute it, and (3)
knowledge that the material is a controlled substance—here,
marijuana. United States v. Campbell, 534 F.3d 599, 605 (7th Cir.
2008). Ford does not dispute that the baggies of marijuana
were his, or that he knew they contained marijuana. He con‐
tends only that the evidence of intent to distribute fell short.
He emphasizes that the government never detailed whether
the 50 baggies contained different quantities of marijuana and
whether some were empty. Nor did the government present
any evidence of scales, wrappers, or money, items typically
surrounding drug dealing.
This evidence permitted the jury to conclude that Ford in‐
tended to distribute the marijuana. United States v. Bernitt, 392
F.3d 873, 879 (7th Cir. 2004) (“[T]he quantity and packaging
of drugs … can be sufficient to support the inference of an in‐
42 Nos. 17‐1650 et al.
tent to distribute.”). The FBI agent’s expert testimony con‐
firmed that the marijuana was packaged for distribution. And
Ford’s own statements reinforce the conclusion that he in‐
tended to distribute the marijuana. In a recorded conversation
between Ford and Todd, Ford stated that although he did not
“smoke weed” himself, he was going to get a pound of “kush”
(marijuana) to sell once he was released from prison. No more
was necessary.
We also briefly comment on Ford’s contention that he
should not have been tried at all in the case as a whole, be‐
cause he was not named in the Second Superseding Indict‐
ment. Ford was charged in four counts of the Superseding In‐
dictment: Count 1 (racketeering conspiracy), Count 8 (felon in
possession of a firearm), Count 9 (possession with intent to
distribute marijuana), and Count 10 (possession of a firearm
in connection with the marijuana offense). In the same indict‐
ment, Ford’s co‐defendant, Poe, was charged in Count 6 for
obstruction of justice.
About one week before trial, Poe moved to dismiss Count
6, on the ground that it failed to allege the obstruction of a
specific pending judicial proceeding. The grand jury speedily
returned a Second Superseding Indictment against only Poe.
The Second Superseding Indictment cured the deficiency Poe
had mentioned by alleging the specific judicial proceedings
that were obstructed.
During jury selection, Ford’s counsel requested clarifica‐
tion of “[w]hat indictment” was the subject of trial. The dis‐
trict court answered that the trial was proceeding on the Su‐
perseding Indictment, with the exception of Count 6, as to
which Second Superseding Indictment replaced the earlier
version of Count 6 with a new Count 6. A week into trial, Ford
Nos. 17‐1650 et al. 43
asked the district court to dismiss him from the case. He ar‐
gued that the Second Superseding Indictment nullified the
Superseding Indictment and, because he was not named in
the Second Superseding Indictment, there were no longer
charges pending against him. He argued that the government
was required to select only one indictment on which to pro‐
ceed to trial. The district court denied the motion, rejecting
“the premise that a superseding indictment wholly replaces
previous ones.” Ford now echoes this argument before us.
We are not persuaded. First, Ford’s motion came too late,
as it is among those that Federal Rule of Criminal Procedure
12(b)(3)(B) requires to be raised before trial. Second, it is not
the case that “a superseding indictment zaps an earlier indict‐
ment to the end that the earlier indictment somehow vanishes
into thin air.” United States v. Bowen, 946 F.2d 734, 736 (10th
Cir. 1991). “An original indictment remains pending prior to
trial, even after the filing of a superseding indictment, unless
the original indictment is formally dismissed.” United States
v. Yielding, 657 F.3d 688, 703 (8th Cir. 2011). Here, the govern‐
ment did not move to dismiss the Superseding Indictment,
and it was entitled to proceed to trial against Ford on it. This
objection is meritless.
III
We now turn to the defendants’ challenges to the court’s
rulings on the admission of evidence.
A. Forfeiture by Wrongdoing
Bush, Chester, Council, Ford, and Derrick contend that the
admission of Keith Daniels’s out‐of‐court statements pursu‐
ant to the forfeiture‐by‐wrongdoing doctrine violated their
Sixth Amendment Confrontation Clause rights. Poe joins this
44 Nos. 17‐1650 et al.
argument only to the extent that he asserts that the district
court erred in requiring the government to prove the elements
of forfeiture by wrongdoing only by a preponderance of the
evidence. The government argues that Daniels’s statements
were properly introduced, and even if they were not, any er‐
ror was harmless. “Where the defendant’s Sixth Amendment
right to confront witnesses is directly implicated, our review
is de novo.” United States v. Ochoa, 229 F.3d 631, 637 (7th Cir.
2000).
The Sixth Amendment’s Confrontation Clause provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right ... to be confronted with the witnesses against him.” U.S.
CONST. amend. VI. In 2004, the Supreme Court held that the
right to confrontation prohibits “admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant ... had a prior
opportunity for cross‐examination.” Crawford v. Washington,
541 U.S. 36, 53–54 (2004). Yet Crawford permits courts to admit
testimonial statements “where an exception to the confronta‐
tion right was recognized at the time of the founding.” Giles
v. California, 554 U.S. 353, 357 (2008).
One such exception is common‐law forfeiture by wrong‐
doing. Codified in Federal Rule of Evidence 804(b)(6), the for‐
feiture‐by‐wrongdoing doctrine allows testimonial state‐
ments to be admitted, even if unconfronted, when the defend‐
ant’s own conduct caused the declarant to be unavailable at
trial. Rule 804(b)(6) describes this as “[a] statement offered
against a party that wrongfully caused—or acquiesced in
wrongfully causing—the declarant’s unavailability as a wit‐
ness, and did so intending that result.” Giles requires the gov‐
Nos. 17‐1650 et al. 45
ernment to prove that the defendant’s actions were under‐
taken for the purpose of preventing the witness from testify‐
ing. 554 U.S. at 367−68.
At trial, the government sought to admit Daniels’s out‐of‐
court statements—his grand jury testimony—against all the
defendants, not just against Poe (the person who directly
caused Daniels’s unavailability by murdering him). It argued
that it could do so under the theory of liability recognized in
Pinkerton v. United States, 328 U.S. 640 (1946). Pinkerton pro‐
vides that a person is liable for an offense committed by a co‐
conspirator when its commission is reasonably foreseeable to
that person and is in furtherance of the conspiracy. Id. at 647.
According to the government, “[i]t would make little sense to
limit forfeiture of a defendant’s trial rights to a narrower set
of facts than would be sufficient to sustain a conviction and
corresponding loss of liberty.” United States v. Cherry, 217 F.3d
811, 818 (10th Cir. 2000).
The district court agreed with the government, relying on
United States v. Thompson, 286 F.3d 950 (7th Cir. 2002). In
Thompson, we stated that under Federal Rule of Evidence
804(b)(6), a defendant who “acquiesces in conduct intended
to procure the unavailability of a witness” waives his hearsay
objection. Id. at 964. We noted that by using the term “acqui‐
esce,” the drafters of Rule 804(b)(6) expressed an intent to al‐
low for the imputation of waiver. Id. Therefore, “if a murder
is reasonably foreseeable to a conspirator and within the
scope and in furtherance of the conspiracy, the conspirator
waives his right to confront that witness just as if he killed the
witness himself.” Id. at 963. “Without a rule of coconspirator
waiver, the majority of the members of a conspiracy could
benefit from a few members engaging in misconduct. Such a
46 Nos. 17‐1650 et al.
result is at odds with the waiver‐by‐misconduct doctrine’s eq‐
uitable underpinnings.” Id. at 964.
The defendants, however, argue that the decisions in
Crawford and Giles have undermined Thompson’s approach,
and that their holdings rule out the use of Pinkerton to impute
waiver of a defendant’s Sixth Amendment right to confronta‐
tion under the forfeiture‐by‐wrongdoing concept. They note,
accurately, that courts did not recognize Pinkerton liability at
common law; from that, they conclude that any exception to
the confrontation right based on Pinkerton was not recognized
at the founding. The defendants also contend that Pinkerton is
inconsistent with Giles’s requirement that forfeiture of con‐
frontation rights occurs only if the defendant acts with the spe‐
cific purpose of precluding the witness’s testimony.
Several of our sister circuits have found, post‐Crawford,
that Pinkerton liability allows the admission of testimonial
statements under a forfeiture‐by‐wrongdoing theory. They
permit the inference of waiver for coconspirators who reason‐
ably could foresee that a fellow conspirator would engage in
premeditated murder in furtherance and within the scope of
the conspiracy. See United States v. Cazares, 788 F.3d 956, 975
(9th Cir. 2015) (“The district court should have articulated
that the … murder was within the scope of and in furtherance
of the conspiracy, and that the murder was reasonably fore‐
seeable to the defendants other than Martinez and Avila so
that the forfeiture by wrongdoing doctrine applied to all who
had ‘acquiesced in wrongfully causing—the declarant’s una‐
vailability.’”); United States v. Dinkins, 691 F.3d 358, 386 (4th
Cir. 2012) (“We conclude that the district court properly ad‐
mitted the … hearsay statements against [the defendant who
Nos. 17‐1650 et al. 47
did not commit the murder] under the forfeiture‐by‐wrong‐
doing exception to the Confrontation Clause pursuant to
Pinkerton principles of conspiratorial liability.”); United States
v. Carson, 455 F.3d 336, 364 (D.C. Cir. 2006) (“[T]he reasons
why a defendant forfeits his confrontation rights apply with
equal force to a defendant whose coconspirators render the
witness unavailable, so long as their misconduct was within
the scope of the conspiracy and reasonably foreseeable to the
defendant, as it was here.”). But these cases do not analyze
whether Pinkerton liability was recognized at common law,
and so we are reluctant to jump onto that bandwagon.
Pinkerton itself was not decided until 1946, and it was con‐
troversial from the outset. One scholar had this to say about
it:
In the years following Pinkerton, the decision was al‐
most universally condemned by the academic commu‐
nity. And, although no statistics exist, Pinkerton liabil‐
ity appears to have been rarely utilized until the 1970’s.
Indeed, in 1962 the drafters of the Modal Penal Code
rejected Pinkerton liability and by 1972, LaFave and
Scott’s influential Handbook on Criminal Law declared
that the Pinkerton rule had never gained broad ac‐
ceptance.
Alex Kreit, Vicarious Criminal Liability and the Constitutional Di‐
mensions of Pinkerton, 57 AM. U. L. REV. 585, 597−98 (2008)
(quotation marks and citations omitted). Rule 804(b)(6) was
codified in 1997, long after the ratification of the Sixth Amend‐
ment in 1791. In the 18th century, criminal liability was gen‐
erally limited to those who acted as principals or those who
aided and abetted. Under a strict reading of Crawford and
Giles, it seems that Thompson may no longer be good law.
48 Nos. 17‐1650 et al.
This is an important question, but it is one that we can save
for another day. Our problem is a simple one: was one con‐
spirator acting as the agent for the others, while acting within
the scope of the conspiracy? If yes, then ordinary agency prin‐
ciples suggest that the act can be attributed to all of them.
Moreover, we are confident that any error in admitting Dan‐
iels’s out‐of‐court statements was harmless. “[C]onstitutional
error that is harmless will not cause an otherwise valid con‐
viction to be set aside. … The test is whether the reviewing
court can determine beyond a reasonable doubt that the error
did not contribute to the verdict.” Ochoa, 229 F.3d at 639–40
(internal citation omitted).
The statements at issue came from Daniels’s grand jury
testimony. The defendants objected to the admissibility of cer‐
tain passages on various grounds, such as a failure to indicate
the basis of Daniels’s personal knowledge. The district court
conducted a line‐by‐line review, excised substantial portions
of the testimony, and admitted the remainder.
The jury heard that Daniels testified before the grand jury
on April 4, 2013, and offered the following information. Coun‐
cil is his older brother. Daniels was familiar with the Hobos
through Council and others. Chester was the leader of the Ho‐
bos, and Council, Poe, Bush, and Ford were members. The
Hobos had a hand sign, and “Hobo” was stitched on some
members’ cars’ headrests. Council sold drugs in the Robert
Taylor Homes, and Bush and Stanley also sold drugs.
Daniels also mentioned robberies and rivalries. He stated
that the Hobos committed robberies together. Daniels himself
participated in one that Chester had arranged. Afterwards,
Chester took some of the proceeds. On another occasion,
Chester told Daniels he was planning a robbery. Daniels also
Nos. 17‐1650 et al. 49
saw Chester with $100,000 cash. As for gang rivalries, Daniels
identified the Hobos’ conflict with the Met Boys, which
started when Jones stole marijuana and was shot. The Hobos
also had a feud with the Mickey Cobras.
Daniels also testified that he accompanied Chester when
he bought a loaded firearm for Poe, and Chester told him that
Chester was trying to get as many guns as possible. Poe told
Daniels he planned to kill a BD, and Ford told Daniels he and
Brandon Brown were part of the group that shot up the fu‐
neral home. Daniels discussed his drug transactions with
Chester and Dillard.
Overall, what remained after the district court’s redactions
was information that was largely duplicated by other wit‐
nesses. Daniels’s grand jury statements provided general in‐
formation about the Hobos and their criminal activity. There
is no meaningful chance that they contributed to the jury’s
verdict. Our finding that any error that may have occurred in
their admission was harmless makes it unnecessary for us to
address some related arguments, namely, whether the court
erred in applying a preponderance of the evidence standard
to the elements of forfeiture by wrongdoing, or whether there
was insufficient evidence to establish that Chester partici‐
pated in or conspired to murder Daniels in order to prevent
his testimony at trial.
B. Guilty Pleas
Bush, Chester, Council, Ford, Poe, and Derrick argue that
the district court should not have admitted their guilty pleas
to underlying racketeering activity (such as murders, rob‐
beries, and narcotics activity) that was part of the enterprise
and for which defendants were prosecuted in state court. In
50 Nos. 17‐1650 et al.
allowing the evidence, the court relied on the dual‐sovereign
doctrine, which permits the federal government to prosecute
a defendant under a federal statute even if a state has prose‐
cuted him for the same conduct under state law. The defend‐
ants ask us to overrule the dual‐sovereign doctrine, arguing
that it violates the Double Jeopardy Clause of the Fifth
Amendment.
Their effort to preserve this issue for possible Supreme
Court review made sense at the time, but events have out‐
stripped them. After the defendants filed their briefs, the Su‐
preme Court addressed dual sovereignty and held that the
doctrine is consistent with the text of the Fifth Amendment,
its history, and “a chain of precedent linking dozens of cases
over 170 years.” Gamble v. United States, 139 S. Ct. 1960,
1962−69 (2019). The district court acted properly in admitting
the guilty pleas.
C. Toolmark Analysis
Bush, Chester, Council, Ford, Poe, and Derrick argue that
the district court improperly admitted expert testimony on
toolmark analysis, allowing them to argue that “these seem‐
ingly unrelated crimes were committed by the same group of
people.” At trial, the government called four firearms experts:
Illinois State Police firearms examiners Marc Pomerance, Kurt
Murray, and Aimee Stevens, and a scientist with the FBI’s
Firearms‐Toolmarks Unit, Rodney Jiggets. Notably, the de‐
fendants do not challenge the qualifications of any of these
four experts. Rather, the defendants challenge only the relia‐
bility of toolmark analysis as a discipline for expert testimony.
Pomerance testified that toolmark analysis, a discipline
within the forensic sciences, is used to determine whether a
Nos. 17‐1650 et al. 51
bullet or casing was fired from a particular firearm. It can also
be used to determine whether two bullets or casings were
fired from the same firearm. An examiner can make these de‐
terminations by looking through a microscope to see mark‐
ings that are imprinted on the bullet or casing by the firearm
during the firing process. Firing pins impart marks, and
scratches are made as the bullet travels down the barrel.
These markings are either (1) “class characteristics,” which
are features that a group shares, (2) “sub‐class characteris‐
tics,” which are shared by a subset of items, or (3) “individual
characteristics,” which are microscopic imperfections on the
surface of the object that are unique to a particular firearm.
Firearms examiners can conclude that two items, such as cas‐
ings, were fired from the same firearm when the class and in‐
dividual characteristics of two items, such as casings, match.
Pomerance examined 9mm cartridge casings that were re‐
covered from the area where Cordale Hampton and his uncle
were shot. He compared them to 9mm cartridge casings from
an October 2005 shooting. The individual characteristics were
the same on both, and so he determined that they were fired
by the same firearm. Pomerance also compared a 5.7 x 28mm
cartridge casing from the Eddie Jones shooting to a 5.7 x
28mm cartridge casing from the Simmons shooting. The
markings matched.
Murray found a match between 5.7 x 28mm casings from
the Jonte Robinson shooting and comparable casings from the
Simmons shooting. Murray also found that a FN firearm
seized from Bush’s storage locker fired the cartridge casings
from the Eddie Jones shooting. Stevens found a match be‐
tween .40 caliber cartridge casing from the Wilber Moore
murder and the same type from the October 2005 shooting.
52 Nos. 17‐1650 et al.
Jiggets testified that the .45 caliber cartridge casings recovered
from the Bluitt/Neeley murder scene matched casings found
at the Daniels murder scene. In response, the defense called a
forensic metallurgist, William Tobin, who testified that tool‐
mark identification lacks scientific foundation.
The defendants argue that the district court erred in deny‐
ing their motions to exclude this toolmark evidence on relia‐
bility grounds. Federal Rule of Evidence 702 governs the ad‐
missibility of expert testimony. Under Rule 702, if “scientific,
technical, or other specialized knowledge will help the trier of
fact,” then “a witness who is qualified as an expert by
knowledge, skill, experience, training, or education may tes‐
tify in the form of an opinion … .”
A district court “holds broad discretion in its gatekeeper
function of determining the relevance and reliability of the ex‐
pert opinion testimony.” Krik v. Exxon Mobil Corp., 870 F.3d
669, 674 (7th Cir. 2017). We use a two‐step standard of review
where a defendant challenges a district court’s admission of
expert testimony. United States v. Johnson, 916 F.3d 579, 586
(7th Cir. 2019). First, we consider de novo whether the district
court properly applied the Rule’s framework. If so, we review
the ultimate decision to admit or exclude the evidence only
for abuse of discretion, understanding that the district court
abuses its discretion only when no reasonable person could
take the court’s view. Id. at 586−87.
Although it is hard to show abuse of discretion, the de‐
fendants urge that it occurred in this instance when the dis‐
trict court found that the toolmark analysis is sufficiently reli‐
able. They assert that the “premise underlying the field of fire‐
arms analysis—that no two firearms will produce the same
microscopic features on bullets and cartridge cases—[i]s, at
Nos. 17‐1650 et al. 53
best, an unproven hypothesis.” They also complain that there
are no objective, quantitative standards for determining
whether two ammunition components “match.”
The defendants’ argument has respectable grounding. It is
based largely on a report issued by the President’s Council of
Advisors on Science and Technology (PCAST). The report
states that the “foundational validity can only be established
through multiple independent black box studies,” and it iden‐
tifies only one such study, the Ames Study. According to
PCAST, the other available studies could not estimate the re‐
liability of firearms analysis because they employed “artificial
designs that differ[ed] in important ways from the problems
faced in casework,” which “seriously underestimate[d] the
false positive [match] rate.” Ultimately, the PCAST report
found that firearms analysis “[fell] short of the criteria for
foundational validity.” The defendants also emphasize that
even the Ames Study had not been published or subject to
peer‐review at the time of trial. Moreover, they contend, the
government’s experts misled the jury by testifying about the
Ames Study’s error rate, because that rate is not representa‐
tive of the “entire discipline of firearms analysis.”
The defendants brought the PCAST report to the district
court’s attention, but the district court chose not to give it dis‐
positive effect, and that choice was within its set of options.
See General Electric Corp. v. Joiner, 522 U.S. 136, 142–43 (1997)
(appellate review of expert‐evidence rulings is only for abuse
of discretion). Rule 702(c) requires testimony to be “the prod‐
uct of reliable principles and methods.” Courts frequently
look to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), which the Rule largely reflects, to assess that point.
Under Daubert, to determine reliability, a court considers
54 Nos. 17‐1650 et al.
whether the theory or technique has been (1) tested, (2) sub‐
jected to peer review and publication, (3) analyzed for known
or potential error rate, and (4) generally accepted within the
specific scientific field. Daubert, 509 U.S. at 592−94.
Taking these criteria into account, the district court found
the toolmark evidence was admissible. It noted that the Asso‐
ciation of Firearms and Toolmark Examiners (AFTE) method‐
ology used by the government’s witnesses had been “almost
uniformly accepted by federal courts.” See, e.g., Cazares, 788
F.3d at 989. The AFTE method has been tested and subjected
to peer review. Three different peer‐reviewed journals ad‐
dress the AFTE method, and several reliability studies have
been conducted on it. Although the error rate of this method
varies slightly from study to study, overall it is low—in the
single digits—and as the district court observed, sometimes
better than algorithms developed by scientists. The court also
noted that firearm and toolmark analysis is widely accepted
beyond the judicial system.
The district court used the methodology prescribed by the
Rule, and we see no abuse of discretion in its application of
these principles. Almost all the defendants’ contentions were
issues that could be raised on cross‐examination. These argu‐
ments go to the weight of the evidence, not its admissibility.
Expert testimony is still testimony, not irrefutable fact, and its
ultimate persuasive power is for the jury to decide.
D. Recorded Conversations
Chester, Council, Bush, Poe, Ford, and Derrick argue that
the district court erred in admitting Jodale Ford’s recorded
Nos. 17‐1650 et al. 55
conversations. Again, we review this ruling for abuse of dis‐
cretion. United States v. McGee, 408 F.3d 966, 981 (7th Cir.
2005).
At trial, Chester called Jodale Ford (to whom we refer as
“Jodale” to avoid confusing him with his brother, defendant
William Ford) as a witness. Jodale was then in state custody
for murder and home invasion. Jodale contradicted most of
the elements of the government’s case. He testified that he did
not rob a jewelry store with Chester, that there was no Hobos
gang, and that he was not a leader of the Hobos. On cross‐
examination, Jodale testified that, while in prison, he did not
receive updates about the defendants and did not send letters
to Council. He also denied remembering anything about Dan‐
iels’s murder or receiving money from the Hobos while in
prison.
In rebuttal, the government sought to introduce some of
Jodale’s jail calls. In these conversations, Jodale asked for up‐
dates on some members of the Hobos and identified himself
as “Hobo.” Callers also gave Jodale information about the
Daniels murder.
The defense objected, arguing that they needed to con‐
front Jodale with the calls before they could be introduced as
prior inconsistent statements under Federal Rule of Evidence
613, which states: “Extrinsic evidence of a witness’s prior in‐
consistent statement is admissible only if the witness is given
an opportunity to explain or deny the statement and an ad‐
verse party is given an opportunity to examine the witness
about it, or if justice so requires.” Fed. R. Evid. 613(b). The
government responded that it was not introducing the calls
under Rule 613.
56 Nos. 17‐1650 et al.
Instead, it said, it was planning to introduce the calls un‐
der Rule 608(b), which governs extrinsic evidence of conduct.
Rule 608(b) forbids the use of such evidence to attack a wit‐
ness’s character for truthfulness, but it allows its admission
on cross‐examination if the conduct “[is] probative of the
character [of the witness] for truthfulness or untruthfulness.”
The government argued that Jodale’s phone calls, i.e., his
prior conduct, was evidence that contradicted his testimony
that he had no relationship to the Hobos.
We have explained the difference between Rules 608(b)
and 613 this way:
In our view, Rule 613(b) applies when two statements,
one made at trial and one made previously, are irrec‐
oncilably at odds. In such an event, the cross‐examiner
is permitted to show the discrepancy by extrinsic evi‐
dence if necessary—not to demonstrate which of the
two is true but, rather, to show that the two do not jibe
(thus calling the declarant’s credibility into question).
In short, comparison and contradiction are the hall‐
marks of Rule 613(b).…In contrast, Rule 608(b) ad‐
dresses situations in which a witness’ prior activity,
whether exemplified by conduct or by a statement, in
and of itself casts significant doubt upon his verac‐
ity.…So viewed, Rule 608(b) applies to a statement, as
long as the statement in and of itself stands as an inde‐
pendent means of impeachment without any need to
compare it to contradictory trial testimony.
McGee, 408 F.3d at 982 (quoting United States v. Winchenbach,
197 F.3d 548, 558 (1st Cir. 1999)). Here, no comparisons are
necessary. The calls themselves cast doubt on Jodale’s testi‐
mony. Jodale testified that he knew nothing about the Hobos
Nos. 17‐1650 et al. 57
and that he did not receive updates on them while incarcer‐
ated. Yet the calls show Jodale engaging in conduct that
demonstrates his leadership within the Hobos, including re‐
ceiving updates on the Hobos and giving directions. At any
rate, any error in admitting the calls was harmless. United
States v. Olano, 507 U.S. 725, 734 (1993). The calls were only a
small part of the evidence presented, and, quite frankly, we
suspect that it would have been more prejudicial if Jodale had
been required to explain the calls under Rule 613(b).
E. Chester’s Motion to Suppress
Chester argues that the district court erroneously admitted
statements he made on October 22, 2008, when the police
stopped a car in which he was a passenger, took him to the
station, and questioned him. He argues that the officers who
stopped him did not have probable cause.
On June 26, 2008, the FBI and CPD executed a search of an
apartment at 1221 North Dearborn Street in Chicago, pursu‐
ant to a search warrant. The officers found 99.6 grams of her‐
oin. Four months later, on October 22, some of the officers
who had been involved in the Dearborn search headed to
Shark’s Fish & Chicken. When Binion and Chester’s vehicle
pulled out of the restaurant’s parking lot, the officers stopped
it, took Chester to a CPD facility, and interviewed him. After
Chester waived his Miranda rights, he made incriminating
statements.
Before trial, Chester moved to suppress his October 22
statements, arguing that they were the result of an illegal de‐
tention that was not supported by probable cause. The district
court held a suppression hearing in June 2016 to explore the
issue. Both Chester and Binion testified. They stated that they
58 Nos. 17‐1650 et al.
were pulled over, handcuffed, and transported to the police
station involuntarily. Officer Sanchez testified about the stop,
and both Sanchez and Agent Hill testified about the interview
that followed. Sanchez’s testimony was riddled with incon‐
sistencies. As one example, Sanchez provided inconsistent
testimony about what led officers to Shark’s Fish. Originally,
he stated that Agent Hill had received a tip that Chester was
engaging in criminal activity there. Later, after reviewing a
CPD report, he stated that he had actually been the one to re‐
ceive the tip.
As a result, the government filed a post‐hearing brief in
which it abandoned any attempt to justify the stop based on
Sanchez’s testimony. Instead, it argued that, regardless of any
subjective reasons for stopping Chester, the October stop was
lawful because it was supported by probable cause to believe
that Chester unlawfully possessed heroin on June 22, 2008.
The district court agreed that the heroin found during the
Dearborn search provided probable cause to detain and ques‐
tion Chester on October 22 and denied Chester’s motion to
suppress.
At trial the jury thus heard Chester’s incriminating state‐
ments. During the interview, Chester had told officers that he
was the Hobos’ most successful drug dealer and that he
robbed drug dealers with other Hobos. Chester was shown
photographs of the seized heroin, and he did not deny that it
was his. Chester had also offered to cooperate with law en‐
forcement, but he refused to testify publicly.
“Probable cause to make an arrest exists when a reasona‐
ble person confronted with the sum total of the facts known
to the officer at the time of the arrest would conclude that the
Nos. 17‐1650 et al. 59
person arrested has committed … a crime.” Venson v. Altami‐
rano, 749 F.3d 641, 649 (7th Cir. 2014). Contrary to Chester’s
contentions, it does not matter whether the officers who
stopped him did so with the intent of arresting him for the
heroin found months earlier during the Dearborn apartment
search. The officers’ subjective intentions are irrelevant so
long as there was probable cause to detain him for any crime.
See Devenpeck v. Alford, 543 U.S. 146, 154–55 (2004). “What
matters, and all that matters, is whether the facts known to the
arresting officers at the time they acted supported probable
cause to arrest.” White v. Hefel, 875 F.3d 350, 357 (7th Cir.
2017). Here, the fact was that Chester had possessed almost
100 grams of heroin. This supplied probable cause to arrest
him. While some time had passed since the search and the ar‐
rest, that “does not necessarily dissipate the probable cause
for an arrest.” United States v. Haldorson, 941 F.3d 284, 291 (7th
Cir. 2019).
Chester argues that the police, particularly Officer
Sanchez, did not have enough information to link the drugs
found at the Dearborn address to him. But there was evidence
connecting him to the apartment. The search was based on in‐
formation provided by Todd, who stated that he had seen
Chester with a gun in the apartment. Surveillance officers saw
Chester enter and exit the Dearborn apartment building, and
women who were present during the search identified Ches‐
ter as the apartment’s resident. As for Sanchez’s knowledge
specifically, the government contends that collective
knowledge of CPD, the agency he works for, is imputed to
him.
At oral argument, we were concerned with a different as‐
pect of what the arresting officers, particularly those who
60 Nos. 17‐1650 et al.
stopped Binion’s car, knew before they make the stop: how
did they know that Chester was a passenger in the car?
Sanchez had testified about this aspect of the stop, but the dis‐
trict court totally rejected his testimony as unreliable, and the
government concedes we cannot rely on him. We therefore
asked the parties to submit post‐argument letters under Fed‐
eral Rule of Appellate Procedure 28 addressing the question
whether Detective Brogan, one of the officers involved in
stopping the car, covered this base.
The short answer is that he offered no such testimony at
the suppression hearing. He did, however, testify at trial that
he saw Chester in a Nissan’s passenger seat. The Nissan was
initially parked in a parking lot, before it left and was then
stopped by officers. The government asserts that we “may
consider trial testimony in reviewing a pretrial suppression
ruling.” United States v. Howell, 958 F.3d 589, 596 (7th Cir.
2020). Chester begs to differ and points out that in any event,
Detective Brogan’s testimony about whether he identified
Chester before the detention of Binion’s automobile was am‐
biguous at best. Moreover, he argues, “it simply does not mat‐
ter if Officer [B]rogan happened to identify Mr. Chester before
the stop,” because there is no evidence he communicated such
information to the arresting officer.
The circumstances surrounding the stop of the car are un‐
clear. We ultimately need not wade through the evidence,
however, because any error in admitting Chester’s October 22
statements was harmless. “The test for harmless error is
whether, in the mind of the average juror, the prosecution’s
case would have been ‘significantly less persuasive’ had the
improper evidence been excluded.” United States v. Emerson,
501 F.3d 804, 813 (7th Cir. 2007). This trial lasted over four
Nos. 17‐1650 et al. 61
months, and the evidence of Chester’s guilt on Count 1 was
overwhelming. The evidence included Jones’s testimony that
Chester was the leader of the Hobos and that Chester ordered
other Hobos to distribute drugs. Todd testified about Ches‐
ter’s role as a heroin supplier. Recorded conversations of Ford
revealed Chester’s role in the Hobos and certain robberies he
committed. Jail calls also linked Chester to the Daniels mur‐
der. This is only some of the relevant evidence. Although a
person’s own admissions may be powerful in front of a jury,
there was too much other evidence to find that the prosecu‐
tion’s case would have been significantly less persuasive had
Chester’s October 22 statements been excluded.
F. In‐Court Identifications of Derrick Vaughn
Derrick argues that it was prosecutorial misconduct to ask
two government witnesses to identify him in court in the pres‐
ence of the jury. He did not object to the prosecutor’s state‐
ments at trial, however, and so we review his claim of prose‐
cutorial misconduct for plain error. Rosales‐Mireles v. United
States, 138 S. Ct. 1897 (2018). In order to establish plain error,
a defendant must show (1) “an error that has not been inten‐
tionally relinquished or abandoned;” (2) that was “clear or ob‐
vious;” (3) that “affected the defendant’s substantial rights,”
meaning that there is a “reasonable probability that but for
the error, the outcome of the proceeding would have been dif‐
ferent;” and (4) that “seriously affect[ed] the fairness, integ‐
rity, or public reputation of the judicial proceedings.” Id. at
1904–05 (internal citations and quotation marks omitted).
At trial Detective Brogan testified about the joint federal
and state investigation of the Hobos. He described his partic‐
ipation in the execution of a search warrant at a residence as‐
sociated with Bush. During this testimony, Brogan was
62 Nos. 17‐1650 et al.
handed a photograph that had been confiscated during the
search. The government asked Brogan to identify the people
in the photo. After identifying Poe both in the photo and in
court, Brogan identified Stanley. The government asked if
Stanley had a younger brother. Brogan replied that he has two
younger brothers, Ingemar Vaughn and Derrick. The govern‐
ment asked Brogan to point out Derrick in court. Brogan did
so without a peep from the defense. The government then
asked Brogan to identify three additional defendants (Bush,
Chester, and Council) in the photograph and in court.
Maurice Perry, a Fifth Ward BD, was the second witness to
identify Derrick. He testified about the rivalry between the
Fifth Ward and the Dirty Low and mentioned that Stanley
was associated with the Dirty Low. Perry was asked if Stanley
had any brothers. Perry replied that he had two: “Boo [Inge‐
mar] and D‐Block [Derrick].” Derrick stipulated to the in‐
court identification that followed.
Derrick complains that these witnesses identified him as
Stanley’s younger brother and then gave additional testimony
regarding events—including a double murder in Perry’s
case—without ever mentioning Derrick again. He contends
that these identifications were extremely prejudicial in that
they encouraged the jury to find him guilty by association.
We are not convinced that there was any prosecutorial
misconduct here. In any event, Derrick failed to establish that
any error affected his substantial rights. Rosales‐Mireles, 138 S.
Ct. at 1905. Derrick concedes that the in‐court identifications
were accurate. In addition, the identifications were only a
small part of a four‐month trial. The jury heard plenty of evi‐
dence of his guilt beyond his familial association to the Ho‐
bos. Moreover, the court instructed the jury that a defendant
Nos. 17‐1650 et al. 63
is “not a member of a conspiracy just because he knew and/or
associated with people who were involved in a conspiracy,”
lessening the risk of potential prejudice. Cf. Zafiro v. United
States, 506 U.S. 534, 539 (1993) (“[L]imiting instructions … of‐
ten will suffice to cure any risk of prejudice.”).
IV
We now turn to sentencing, where we review claims of
procedural error de novo, United States v. Gill, 889 F.3d 373, 377
(7th Cir. 2018), and those about substantive reasonableness
for abuse of discretion. Id. at 378.
A. Life Sentence Eligibility
Chester, Council, Bush, Ford, Poe, and Derrick argue that
the district court erred in sentencing them to more than 20
years in prison on Count 1 (RICO conspiracy). Chester was
sentenced to 40 years and the other trial defendants were sen‐
tenced to life. They contend that these sentences were im‐
proper because the statutory maximum penalty that may be
imposed upon a defendant found guilty of RICO conspiracies
is 20 years unless the government proves the “violation is
based on a racketeering activity for which the maximum pen‐
alty includes life imprisonment.” 18 U.S.C. § 1963(a). They ar‐
gue the government did not meet this burden.
These defendants’ violations were based on their partici‐
pation in murders in Illinois. As we noted briefly earlier, un‐
der Illinois law first‐degree murder is normally punishable by
a 20‐ to 60‐ year sentence. 720 ILCS 5/9‐1(a); 730 ILCS 5/5‐4.5‐
20(a). A life sentence is permissible, however, when aggravat‐
ing factors are present. Two aggravating factors are relevant
here: (1) where the murder was “… with intent to prevent the
murdered individual from testifying or participating in any
64 Nos. 17‐1650 et al.
criminal investigation or prosecution…,” 720 ILCS 5/9‐1(b)(8),
and (2) where the murder was “committed in a cold, calcu‐
lated and premeditated manner pursuant to a preconceived
plan, scheme or design to take a human life by unlawful
means, and the conduct of the defendant created a reasonable
expectation that the death of a human being would result
therefrom.” 720 ILCS 5/9‐1(b)(11).
The jury found that the murders of Bluitt, Neeley, Daniels,
Moore, and Anderson qualified as aggravating under at least
one of those two provisions. It also found that each defend‐
ant’s racketeering activity included at least one aggravated
first‐degree murder. The district court therefore determined
that the defendants were eligible for life imprisonment.
The defendants disagree. They argue that 18 U.S.C.
§ 1962(d) criminalizes the agreement to commit an act, not the
act itself. Looking for some symmetry, they contend that the
proper analogous state‐law offense is conspiracy to commit
murder. Unfortunately for the defendants, however, section
1963 requires that the “violation”—in this case, the conspir‐
acy—be “based on a racketeering activity for which the max‐
imum penalty includes life imprisonment.” The defendants’
conspiracies were all based on murders for which the maxi‐
mum penalty includes life imprisonment.
The defendants also argue that the “categorical approach”
in Mathis v. United States, 136 S. Ct. 2243 (2016), ought to apply
in a RICO prosecution. This would require us to discern a “ge‐
neric” definition of RICO’s predicate offenses and then to
limit the government to generic murder, rendering life im‐
prisonment unavailable under Illinois law. This argument is
not consistent with the text of the statute. Section 1963 con‐
Nos. 17‐1650 et al. 65
templates a statutory enhancement when qualifying circum‐
stances exist. See United States v. Warneke, 310 F.3d 542, 549–
50 (7th Cir. 2002) (affirming life sentences for RICO conspir‐
acy based on Illinois aggravated murder predicate).
Next, the defendants argue that their enhanced sentences
were based on allegations not presented to, or found by, the
grand jury, in violation of the Presentment Clause of the Fifth
Amendment. U.S. CONST. amend. V. They add that the statu‐
tory enhancement is impermissible because the facts increas‐
ing the statutory maximum were not alleged in the indictment
and proven beyond a reasonable doubt at trial, as required by
Apprendi v. New Jersey, 530 U.S. 466 (2000).
An example helps to illustrate this argument. Count 1
charged the defendants with RICO conspiracy. It alleged that
the defendants engaged in murder and attempted murder in
violation of Illinois law. Paragraphs 8(r) and (s) specified
seven murders and five attempted murders that were com‐
mitted in aid of the enterprise. For instance, Paragraph 8(r)(i)
alleged that the “murders committed by members and associ‐
ates of the enterprise in the conduct of the affairs of the enter‐
prise” included “[t]he murder of Wilbert Moore by ARNOLD
COUNCIL and PARIS POE.” The Notice of Special Findings
alleged that each of the murders identified in Paragraphs
8(r)(i)‐(iv) and 8(r)(vii) was committed in a cold, calculated,
and premeditated manner pursuant to a preconceived plan.
The Notice of Special Findings also alleged that Moore and
Daniels were murdered to prevent their testimony or because
they gave material assistance to law enforcement. The Special
Findings, to the extent the jury made them, would make de‐
fendants eligible for enhanced penalties. Using this example,
the defendants argue that only Council and Poe had notice
66 Nos. 17‐1650 et al.
that the jury could return a Special Finding against them, be‐
cause they were the “named defendants.”
We are not persuaded. In the example, every defendant
was placed on notice that the murder of Moore was commit‐
ted by Council and Poe to prevent his testimony, or because
he gave material assistance to law enforcement. Although
Council and Poe were the only “named defendants,” the other
defendants were placed on notice that the conspiracy—the
RICO violation—was based upon racketeering activity
(Moore’s murder) for which the maximum penalty includes
life imprisonment. The indictment’s identification in Para‐
graph 8(r) of specific coconspirators who committed particu‐
lar murders does not affect the potential coconspirator liabil‐
ity of the remaining defendants.
Chester individually argues that the government con‐
structively amended the superseding indictment by improp‐
erly shifting from a solicitation theory to coconspirator liabil‐
ity. At trial, the government argued that Chester’s racketeer‐
ing activity included Bluitt’s murder under a Pinkerton theory
of liability. Pinkerton liability need not be specifically alleged
in an indictment, and so there was no constructive amend‐
ment.
B. Chester’s Sentence
Recall that Chester faced federal drug charges stemming
from Daniels’s controlled heroin buys. In that heroin case,
(No. 13 CR 288 in the district court), Chester was convicted at
trial of two counts: (1) conspiracy to distribute and (2) know‐
ingly and intentionally distributing heroin. In July 2014 the
Probation Officer prepared a Presentence Investigation Re‐
port (“PSR”). The PSR listed Chester’s offense level as 26 and
Nos. 17‐1650 et al. 67
his criminal history category as III, resulting in a Guidelines
range of 78 to 97 months’ imprisonment. After the PSR was
submitted, the parties agreed to continue the heroin sentenc‐
ing until the conclusion of the RICO trial. The parties later
agreed that the heroin case would be transferred to Judge
Tharp, who was presiding over the RICO trial, No. 13 CR 774,
for joint resolution.
On August 4, 2017, the district court conducted a joint sen‐
tencing hearing for all defendants to calculate their offense
levels under the Sentencing Guidelines. For Chester, it deter‐
mined that his racketeering activity resulted in an offense
level of 51, reduced to 43 (the top level) and that his Guide‐
lines range and statutory maximum for the racketeering of‐
fense was life imprisonment. The court did not explicitly cal‐
culate the Guidelines range for Chester’s heroin case.
Six days later, on August 10, the court conducted Chester’s
sentencing hearing. It imposed a below‐Guidelines sentence
of 40 years’ imprisonment in the racketeering case. In the her‐
oin case, the district court imposed a term of 20 years for each
of the two counts, which were to run consecutively to each
other and concurrently to the term of 40 years in the racket‐
eering case.
Chester argues that the district court’s imposition of a sen‐
tence so far above the recommended Guidelines range in the
heroin case, without comment or explanation, was both pro‐
cedurally and substantively unreasonable. At sentencing, dis‐
trict courts must calculate the Guidelines range, give the de‐
fendant an opportunity to identify section 3553(a) factors that
might warrant a non‐Guidelines sentence, and explain its sen‐
tence in relation to the section 3553(a) factors. United States v.
68 Nos. 17‐1650 et al.
Gall, 552 U.S. 38, 49–50 (2007); United States v. Dorsey, 829 F.3d
831, 836−37 (7th Cir. 2016).
The district court did not follow those steps for the heroin
case. This was plain error, especially considering that the size
of the departure from the recommended Guidelines range
and the lack of explanation. The government contends that
the court “dedicated almost 30 pages of transcript to explain‐
ing why a 40‐year sentence was necessary and appropriate.”
But this explanation was focused on the racketeering conspir‐
acy. The government also argues that any error in sentencing
Chester in the heroin case was harmless because the sentence
added no additional time: it was concurrent to the 40 years’
imprisonment on the racketeering count. But this rationale
overlooks possible future developments. Suppose that Con‐
gress passes a retroactive statute that caps RICO conspiracy
sentences at 30 years. That may seem unlikely now, but Con‐
gress has passed other retroactive sentencing laws such as the
Fair Sentencing Act. Such a law would leave the 40‐year her‐
oin sentence untouched. We therefore vacate Chester’s sen‐
tence in the heroin case, No. 13 CR 288, and remand for fur‐
ther proceedings consistent with this opinion.
C. Stanley Vaughn’s Sentence
Stanley was one of the few defendants who chose not to
go to trial. After he pleaded guilty to Count 1, the RICO con‐
spiracy, his case was severed from that of his co‐defendants.
The government elected not to seek an enhanced statutory
sentence, and so Stanley proceeded directly to sentencing.
On June 29, 2017, the Probation Officer prepared a PSR. In
calculating Stanley’s offense level, Probation took the position
that his racketeering activity included participation in (1) the
Nos. 17‐1650 et al. 69
Bluitt/Neeley murders; (2) the attempted murders of Jonte
Robinson, Cashell Williams, and Roosevelt Walker; and (3)
drug trafficking. Each of these was treated as a separate group
under Guideline § 3D1.1. The PSR calculated a total offense
level of 45, reduced to 43 pursuant to Guideline § 4B1.3. Stan‐
ley had a criminal history category of VI, resulting in a Guide‐
lines “range” of life imprisonment. This was reduced to 20
years to reflect the statutory maximum.
At his sentencing hearing, Stanley objected to the determi‐
nation that his racketeering activity included the murders, at‐
tempted murders, and drug trafficking mentioned in his PSR.
The court overruled his objections, based largely on the evi‐
dence presented at his co‐defendants’ trial for the
Bluitt/Neeley murders. This evidence established that Stanley
“participate[d] in this ambush.” Although there were some
inconsistencies in the details, the court found no reason to dis‐
credit “the much larger and much more significant consisten‐
cies in the evidence about how this transpired,” particularly
considering the ambush’s quick nature. Recorded statements
of Derrick, Stanley’s brother, implicated Stanley. Ford and
Jones also placed Stanley within the caravan that ambushed
Bluitt and Neeley.
As for the drug trafficking, the court looked to Todd’s and
Jones’s testimony and Ford’s proffer and found that Stanley
“manag[ed] drug lines at 47th and Vincennes.” It noted that
Stanley was “the leader of the effort to drive the Black Disci‐
ples out of this area and to take it over for the Hobos,” refer‐
ring to an altercation between Stanley and the BDs. The court
also concluded that the evidence was sufficient for the at‐
tempted murders. To each racketeering act, it added an ob‐
struction enhancement that increased the proposed offense
70 Nos. 17‐1650 et al.
level by two levels. With grouping, the combined adjusted of‐
fense level was 49, reduced to 43. This again resulted in a
Guidelines range of life; that in turn was reduced to the 20‐
year statutory maximum.
On August 10, 2017, the court held a second sentencing
hearing to consider the section 3553(a) factors. Stanley and the
government both argued for a 20‐year sentence. They dis‐
puted, however, whether it should run consecutively or par‐
tially concurrently to an undischarged sentence that Stanley
was serving based on a conviction in the Central District of
Illinois. That conviction, which carried a 262‐month sentence,
was based on Stanley’s distribution of heroin in Springfield.
The court held that the Springfield drug trade was relevant
conduct in the racketeering case, but it decided to run Stan‐
ley’s 20‐year sentence for the latter consecutively to the
Springfield term. It explained that it was necessary to account
for the violent activity and “personal participation in murders
and attempted murders” that were part of the racketeering
case. The Springfield drug trafficking, the court thought,
“pale[d] in significance to the conduct” in which the Hobos
enterprise engaged. While there was “some overlap,” it said,
the racketeering case “concerns a far broader and more seri‐
ous range of conduct than was at issue in the Central District
case.” Moreover, it noted that Stanley had a lengthy criminal
record and “has had a second chance, a third, fourth, fifth,
sixth, seventh chance. At each opportunity that has been pre‐
sented to him to put his criminal conduct behind him, he has
instead concluded to escalate his criminal conduct … .”
Stanley raises two arguments on appeal: first, he accuses
the district court of relying on unreliable trial evidence to cal‐
Nos. 17‐1650 et al. 71
culate his offense level; and second, he contends that the evi‐
dence underlying the district court’s determination that his
racketeering activity included the murders and attempted
murders was incredible and full of inconsistences. These
make essentially the same point, and so we treat them to‐
gether.
With respect to the Bluitt/Neeley murders, Jones testified
that Stanley was in the third car of the four‐car caravan, but
Derrick told Johnson that Stanley was in the first car. Ford’s
proffer suggested yet a different lineup. The district court
chalked these inconsistencies up to the quick and chaotic na‐
ture of an ambush. It also disregarded the fact that neither of
Todd’s two sources mentioned Stanley as a participant.
Stanley also argues that the finding that he participated in
the shooting of Jonte Robinson was based on unreliable, in‐
consistent, and untrustworthy evidence. The district court
chose to credit Todd’s testimony, which implicated Stanley.
Stanley had rented the car that a witness saw during the inci‐
dent, and he later returned that car to the rental company
without license plates and traded it for a different car. Stanley
argues that Todd was an admitted perjurer who could not be
trusted, and that his testimony conflicted with the testimony
of Robinson on details such as the type of car Stanley had and
where he was shot. Ford told law enforcement that Derrick,
not Stanley, was the shooter.
These discrepancies were for the district court to resolve.
The government needed to satisfy only the preponderance of
the evidence standard. United States v. England, 555 F.3d 616,
622 (7th Cir. 2009). In addition, although due process requires
reliable evidence, the rules of evidence and the Confrontation
Clause do not apply at sentencing, and so the court may rely
72 Nos. 17‐1650 et al.
on hearsay even if the defendant did not have an opportunity
to cross‐examine witnesses. See United States v. Bogdanov, 863
F.3d 630, 635 (7th Cir. 2017).
Although the witnesses did not agree on the details, Jones,
Derrick, and Ford all placed Stanley at the scene of Robinson’s
shooting. “[A] sentencing court may credit testimony that is
totally uncorroborated and comes from an admitted liar, con‐
victed felon, or large scale drug‐dealing, paid government in‐
formant.” United States v. Clark, 538 F.3d 803, 813 (7th Cir.
2008) (internal quotation marks omitted). That is what the
court did, accepting Todd’s testimony that he met Stanley and
Derrick in front of a daycare center. Stanley was in a GMC
vehicle and Derrick was in a white Grand Am. Stanley
pointed Robinson out and then someone in the Grand Am be‐
gan shooting. Bush, who was with Stanley, also began shoot‐
ing. Todd’s testimony was corroborated by a CPD officer’s
testimony that an eyewitness to the shooting reported a li‐
cense plate of a vehicle at the scene. The report matched Na‐
tional Car Rental records showing that Stanley rented a blue
GMC SUV that was returned on the day of the shooting with‐
out license plates.
Next, Stanley asserts that the district court abused its dis‐
cretion by running Stanley’s sentence consecutively to his un‐
discharged sentence for the Springfield drug conviction. The
government points us to 18 U.S.C. § 3584(a), which says that
if a defendant is “already subject to an undischarged term of
imprisonment,” the court may run a term of imprisonment
“concurrently or consecutively” to the undischarged term.
The default rule is that “[m]ultiple terms of imprisonment im‐
posed at different times run consecutively unless the court or‐
ders that the terms are to run concurrently.” 18 U.S.C.
Nos. 17‐1650 et al. 73
§ 3584(a). Section 3584(b) instructs a court to consult the sec‐
tion 3553 factors when it makes its decision between the two
options. As we indicated earlier, that is just what the court did
here.
Stanley responds in two ways. First, he emphasizes that
the Springfield conduct was relevant conduct to the racketeer‐
ing case. See U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, Guideline
§ 5G1.3(b) applies. It states: “If … a term of imprisonment re‐
sulted from another offense that is relevant conduct to the in‐
stant offense of conviction … the sentence for the instant of‐
fense shall be imposed to run concurrently to the remainder
of the undischarged term of imprisonment.” Stanley seizes on
the word “shall” to argue that a concurrent sentence was man‐
datory.
But nothing in the Guidelines is mandatory anymore.
United States v. Booker, 543 U.S. 220 (2005), “made all Guide‐
lines advisory; the judge must understand what sentence the
Guidelines recommend but need not impose it.” United States
v. Bangsengthong, 550 F.3d 681, 682 (7th Cir. 2008). We have
recognized that courts are “free to disagree with a guidelines
recommendation, as the court did here when it rejected con‐
current sentences under section 5G1.3(b).” United States v.
Moore, 784 F.3d 398, 404 (7th Cir. 2015). The district court in
the present case thus was free to choose to impose consecutive
sentences.
Stanley also urges that the court should at least have im‐
posed a partially concurrent sentence because he was sen‐
tenced as a career offender in the Springfield case. Although
the career‐offender designation was correct at the time of sen‐
tencing, Stanley argues, his earlier Illinois Residential Bur‐
glary conviction is no longer a qualifying predicate offense for
74 Nos. 17‐1650 et al.
the enhancement. Because of this, instead of 262 months, he
argues that he would have received only 120 months for the
Springfield conviction, as there is nothing in the record to sug‐
gest the sentencing judge would have imposed an upward
variance of 142 months. He concludes that a partially concur‐
rent sentence was necessary to avoid a composite sentence
that is greater than necessary.
We see no abuse of discretion on the district court’s part.
The Springfield sentence was imposed post‐Booker, and so
that court had the discretion to depart from the Guidelines. It
chose not to do so. Here, the district court explained in detail
why it was choosing consecutive sentences, and we have no
reason to overturn its decision.
V
We have hardly spoken of Byron Brown so as not to add
unnecessary length to an already long opinion, but Brown
was also actively involved with the Hobos. We need not delve
into all his criminal activity, which included drug dealing,
home invasions, robbery, shootings, and murder. It is enough
to give a brief summary of the facts pertinent to his individual
contentions.
On August 27, 2014, Brown pleaded guilty to Count 1,
racketeering conspiracy in violation of 18 U.S.C. § 1962(d),
and Count 4, murder in aid of racketeering in violation of 18
U.S.C. § 1959(a). He was represented by two appointed attor‐
neys, Robert Loeb and Keith Spielfogel, during the proceed‐
ings in the district court, including at the change‐of‐plea hear‐
ing. (Under 18 U.S.C. § 3005, as a person facing potential cap‐
Nos. 17‐1650 et al. 75
ital charges, Brown was entitled to representation by two at‐
torneys, at least one of whom was knowledgeable about the
defense of death penalty cases.)
At the change‐of‐plea hearing, the district court found that
Brown was competent to enter a guilty plea. Brown stated
multiple times, under oath, that he was satisfied with both of
his attorneys’ representation. He confirmed that he had an op‐
portunity to review with his attorneys the proposed plea
agreement, and he stated he did not need more time to discuss
the plea agreement with counsel. Brown confirmed that he
did not have any questions that were left unresolved in his
mind about whether he should enter into the plea agreement.
Brown also confirmed that he had reviewed and signed the
plea agreement, and that no one had threatened him or pres‐
sured him to do so.
The district court discussed the terms of the plea agree‐
ment’s cooperation provision with Brown. Although the mur‐
der‐in‐aid‐of‐racketeering charge carried a mandatory mini‐
mum term of life imprisonment and the possibility of the
death penalty, the agreement specified an agreed sentence of
35 to 40 years’ imprisonment, conditioned on Brown’s contin‐
ued cooperation with the government. At the request of the
district court, the government summarized what would be re‐
quired of Brown under this provision, telling him that he was
expected to give “complete and truthful testimony in any
criminal, civil, or administrative proceeding[.]” Brown con‐
firmed that he understood and agreed to do so. He also con‐
firmed that he understood that the government had sole dis‐
cretion to determine whether he lived up to that obligation.
76 Nos. 17‐1650 et al.
Brown also acknowledged that he would not be able to
withdraw his guilty plea, and he confirmed his understand‐
ing that he would be subject to life imprisonment if the gov‐
ernment determined he had not kept up his end of the bar‐
gain. Next, the court established a factual basis for Brown’s
guilty plea. Afterward, it returned to the issue of voluntari‐
ness, confirming that no one had threatened or forced Brown
to plead guilty. The court then accepted his guilty plea.
The prosecutors later discovered that Brown had provided
materially false information to the government. He did so
during interviews and during testimony before the federal
grand jury. Accordingly, the government told Brown that it
would not seek a reduced sentence on Brown’s behalf.
On November 17, 2015, the district court set a sentencing
date. One month later, on December 23, Brown filed a pro se
demand for special appearance and a motion to strike his
guilty plea. On January 21, 2016, Brown’s lawyers filed a mo‐
tion to withdraw, which the court granted. It then struck the
sentencing date and appointed new counsel for him.
On May 20, 2016, Brown moved to withdraw his guilty
plea. He alleged that he received ineffective assistance from
Robert Loeb before pleading guilty. Brown asserted that Loeb
had threatened and coerced him to plead guilty even though
he knew Brown had testified falsely before the grand jury.
The district court denied Brown’s motion a month later
without an evidentiary hearing, finding that Brown’s accusa‐
tions were “exceedingly unreliable,” and that “summary de‐
nial without a hearing [was] warranted.” On March 14, 2017,
the district court sentenced him to concurrent terms of life im‐
prisonment on the two counts.
Nos. 17‐1650 et al. 77
Brown argues that the district court erred when it decided
not to hold an evidentiary hearing to investigate whether he
should be allowed to withdraw his guilty plea. Brown claims
that counsel was ineffective, as defined in Strickland v. Wash‐
ington, 466 U.S. 668 (1984), by (1) failing adequately to advise
him that he would be required to testify at trial and (2) failing
to investigate the circumstances surrounding his untruthful‐
ness, possible coercion by law enforcement, and the possibil‐
ity of correcting misstatements in the grand jury.
Guilty pleas, as we have stressed in the past, should not
lightly be withdrawn. See, e.g., United States v. Chavers, 515
F.3d 722, 724 (7th Cir. 2008). Only a few grounds merit this
relief: “where the defendant shows actual innocence or legal
innocence, and where the guilty plea was not knowing and
voluntary.” United States v. Graf, 827 F.3d 581, 583 (7th Cir.
2016). “A defendant who contends that his guilty plea was not
knowing and intelligent because of his lawyer’s erroneous ad‐
vice must show that the advice was not within the range of
competence demanded of attorneys in criminal cases.” United
States v. Trussel, 961 F.2d 685, 690 (7th Cir. 1992) (internal quo‐
tation marks omitted). Moving to withdraw a guilty plea does
not automatically entitle a defendant to an evidentiary hear‐
ing. See United States v. Collins, 796 F.3d 829, 834 (7th Cir.
2015). A defendant must offer substantial evidence support‐
ing his claim, and “if the allegations advanced in support of
the motion are conclusory or unreliable, the motion may be
summarily denied.” Id.
We begin with Brown’s contention that his counsel did not
advise him that he would be required to testify at trial against
his co‐defendants. The record shows otherwise. As we noted,
the district court ensured that Brown was fully informed
78 Nos. 17‐1650 et al.
about the plea agreement and his cooperation obligations.
Brown is simply experiencing buyer’s remorse; the district
court acted within its discretion in crediting his statements,
made under oath, at the change‐of‐plea hearing.
Brown’s assertion that his lawyers failed to investigate his
truthfulness, coercion by law enforcement, and the possibility
of correcting misstatements in the grand jury strikes us as
somewhat bizarre. In any event, Brown did not present this
theory to the district court. We therefore review Brown’s ar‐
gument for plain error, which requires error that is plain, ob‐
vious, and prejudicial. United States v. Fuentes, 858 F.3d 1119,
1120−21 (7th Cir. 2017). Brown has come nowhere near meet‐
ing that standard.
Moreover, even assuming Brown received ineffective as‐
sistance of counsel, he cannot show prejudice. “[I]n order to
satisfy the ‘prejudice’ requirement, the defendant must show
that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have in‐
sisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
We find this unlikely, as Brown was deciding between a plea
and a possible death sentence. In addition, under Brown’s
plea agreement, the government had the sole discretion to de‐
cide whether Brown provided complete and truthful cooper‐
ation deserving of a § 5K1.1 motion.
VI
Rodney Jones pleaded guilty pursuant to a plea agreement
to one count of RICO conspiracy in violation of 18 U.S.C.
§ 1962(d). He was sentenced to 450 months in prison, reduced
by 110 months to account for time that he already had served
in a related state case. Jones filed a timely notice of appeal, but
Nos. 17‐1650 et al. 79
his appointed counsel has moved to withdraw under Anders
v. California, 386 U.S. 738 (1967), because she believes an ap‐
peal to be without merit or possibility of success. Pursuant to
Circuit Rule 51(b), Jones was notified of the opportunity to re‐
spond to his counsel’s motion to withdraw, but he did not do
so. Having considered counsel’s brief, which addresses the
topics one would expect to see in this situation, we grant her
motion to withdraw and dismiss the appeal.
Jones was a member of the Hobos and participated in
many of the crimes discussed above and others, including
armed robbery of a marijuana dealer, the attempted murder
of Courtney Johnson, home invasion and attempted robbery,
the murder of Daniel Dupree, and the home invasion and fel‐
ony murder of Tommye Freeman (the elderly woman whose
car he struck while trying to elude law enforcement). Jones
was charged with RICO conspiracy, and in February 2016, he
pleaded guilty and admitted to facts regarding the predicate
RICO acts.
In the plea agreement, the parties agreed to the relevant
guidelines calculations. In addition, Jones promised to pro‐
vide complete and truthful information to the government
and give complete and truthful testimony if called upon to do
so. In exchange, the government agreed that “[a]t the time of
sentencing, the government shall make known to the sentenc‐
ing judge the extent of defendant’s cooperation. If the govern‐
ment determined that defendant has continued to provide full
and truthful cooperation as required by this Agreement, then
the government shall move the Court, pursuant to Guideline
§ 5K1.1, to depart from the low end of the applicable guideline
range, and to impose the specific sentence agreed to by the
parties as outlined below.” The agreement specified that if the
80 Nos. 17‐1650 et al.
government so moved, “the parties have agreed that the sen‐
tence imposed by the Court be a term of imprisonment in the
custody of the Bureau of Prisons of not less than 360 months
and not more than 504 months.” The court was to have dis‐
cretion to reduce the sentence below 360 months only to ac‐
count for time Jones served in state custody pursuant to
charges brought against him by the Cook County State’s At‐
torney’s Office in People v. Rodney Jones, 09‐CR‐1125729, as the
underlying offense conduct in that state case was part of the
offense conduct in the present case. The Cook County case
was for the felony murder of Freeman. In it, Jones was found
guilty of this offense in March 2013, and he was sentenced to
42 years in state prison. After an agreement between the par‐
ties to the federal case and the State’s Attorney, that state sen‐
tence was reduced to 25 years on July 2016. Critically, the fed‐
eral plea agreement also included a waiver of Jones’s right to
appeal his conviction and sentence.
In November 2017, the government filed a sentencing
memorandum. Pursuant to section 5K1.1, it asked for a sen‐
tence of 297 months based on Jones’s cooperation and testi‐
mony at trial. The government indicated that this sentence
was calculated based on a total sentence of 418 months in
prison for the federal case, which was then reduced by 121
months for the time Jones had spent in prison for the Freeman
murder. Jones requested a total sentence of 239 months based
on various mitigating factors.
The district court held a sentencing hearing on November
20, 2017. It rejected both requests and chose a sentence of 450
months, which it then reduced by the 110 months that it cal‐
culated Jones had already served for the Freeman case. This
Nos. 17‐1650 et al. 81
resulting in a federal sentence of 340 months, to be served con‐
currently with the remainder of the state court sentence. The
court imposed restitution of $22,272.16 for two victims, but it
declined to impose a fine. Jones also received a special assess‐
ment of $100 and a three‐year term of supervised release.
Counsel first considers whether any challenge to Jones’s
conviction would be frivolous. Jones indicated to her that he
wants to withdraw his guilty plea, and so a potential issue for
appeal would be whether his plea was knowing and volun‐
tary. Because Jones did not move to withdraw his guilty plea
in the district court, our review is limited to determining
whether plain error occurred. United States v. Driver, 242 F.3d
767, 769 (7th Cir. 2001).
Counsel identifies two Rule 11 omissions by the district
court during the change‐of‐plea hearing. First, the court did
not inform Jones of some of the rights he was waiving by
pleading guilty. These rights included the right to plead not
guilty, the right to assistance of counsel, and the right to con‐
front witnesses. See Fed. R. Crim. P. 11(b)(1)(B), (D), & (E).
“Compliance with Rule 11 is not meant to exalt ceremony
over substance.” United States v. Coleman, 806 F.3d 941, 944
(7th Cir. 2015). “If the record reveals an adequate substitute
for the missing Rule 11 safeguard, and the defendant fails to
show why the omission made a difference to him, his substan‐
tial rights were not affected.” Id. at 944–45. Here, Jones knew
he could plead not guilty because he previously had pleaded
not guilty. In addition, Jones knew that he had the right to
counsel’s assistance because he had been continuously repre‐
sented since his arraignment. And Jones’s plea agreement ad‐
vised him that he had the right to confront witnesses at trial.
82 Nos. 17‐1650 et al.
Thus, any error made by the omission did not affect Jones’s
substantial rights. See Rule 11(h).
The court also failed to discuss the appeal waiver con‐
tained in Jones’s plea agreement. See Rule 11(b)(1)(N). To
show that this omission affected his substantial rights, Jones
would have to show that there is a reasonable probability that,
but for the Rule 11 error, he would not have pleaded guilty.
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). The
appeal waiver is unambiguous, and Jones told the district
court multiple times that he had read the agreement and dis‐
cussed it with his attorney. He also acknowledged in the plea
agreement that his attorneys had explained the rights he was
waiving, that he had read and reviewed each provision with
his attorney, and that he understood and accepted every term.
Counsel notes that it is difficult to see how the omission of the
appellate waiver warning by the district court at the change‐
of‐plea hearing could have affected Jones’s decision to plead
guilty, given the benefits he received under the agreement, in‐
cluding a sentence that falls well below the guidelines recom‐
mendation of life in prison. We agree and find no plain error.
Counsel next considered whether any challenge to Jones’s
sentence would be frivolous. Jones explicitly waived the right
to appeal his sentence in his plea agreement, and we review
the enforceability of a waiver of appeal rights de novo. United
States v. Woods, 581 F.3d 531, 534 (7th Cir. 2009).
Because Jones’s guilty plea was knowing and voluntary,
his waiver of appellate rights in the plea agreement was also
knowing and voluntary. We will honor that waiver unless
“the trial court relied on a constitutionally impermissible fac‐
tor (such as race), or … the sentence exceeded the statutory
maximum.” Jones v. United States, 167 F.3d 1142, 1144 (7th Cir.
Nos. 17‐1650 et al. 83
1998). Neither exception applies here. Jones’s sentence of 450
months was within the statutory maximum (life imprison‐
ment) and it was within the parties’ agreed range. Jones’s sen‐
tence was also not the result of a constitutionally impermissi‐
ble factor. Therefore, we grant counsel’s motion to withdraw,
and we dismiss Jones’s appeal.
VII
In the end, almost the entirety of this complex criminal
trial will remain undisturbed thanks to Judge Tharp’s excel‐
lent handling of the case. We AFFIRM the convictions of all the
defendants. We also AFFIRM the sentences of all the defend‐
ants except for Chester. We VACATE Chester’s sentence in
13 CR 288, appeal No. 17‐3063, and order a limited remand
for further proceedings consistent with this opinion. In
Jones’s case, No. 17‐3449, we GRANT Counsel’s motion to
withdraw and DISMISS the appeal.