United States v. Kyle Pagan
2017 U.S. App. LEXIS 13743
| 7th Cir. | 2017Background
- From 1996–2013 an open-air drug market on Keystone Avenue in Chicago was run by members of the Imperial Insane Vice Lords (Double-Is); multiple defendants (including Brown, Hawthorne, Pagan) were indicted in 2013 for racketeering/narcotics/firearms offenses related to that market.
- Brown (member of a different gang) sold crack and heroin on Keystone Avenue from 2007 onward; after leadership changes he paid a tax (money or drugs) to the market boss, Hoskins, to be allowed to sell there.
- Hawthorne and Pagan were Double-Is members who sold narcotics for market leaders; Hawthorne was also charged with being a felon in possession of a firearm (jury deadlocked on that count).
- After a seven-day trial in 2014: Brown pleaded guilty to distribution counts; jury convicted Brown, Hawthorne, and Pagan of the conspiracy count; Hawthorne and Pagan convicted on their possession/distribution counts; timely appeals followed.
- On appeal: Brown challenged sufficiency of evidence for the conspiracy conviction and two refused jury instructions; Hawthorne sought a new trial under Brady based on late disclosure of impeachment material about a government witness; Pagan challenged his criminal-history calculation at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Brown joined narcotics conspiracy | Brown: his payments were a coerced "street tax" or mere buyer-seller relationship, not an agreement to further distribution | Government: Brown agreed to pay Hoskins for the right to sell (mutual financial interest), and other evidence showed coordinated participation | Affirmed — viewing evidence in government’s favor, jury could find Brown knowingly joined the conspiracy |
| Denial of Brown's proposed jury instructions (conspiracy proof; "street tax") | Brown: wanted additional instruction emphasizing "participatory link" and a definition of "street tax"/extortion to negate conspiratorial intent | Court: Pattern instruction already covered participatory link; no evidence of duress/extortion and instruction would mislead | Affirmed — refusal proper (duplicative and unsupported/misleading) |
| Hawthorne Brady claim (late disclosure about witness Vaughn) | Hawthorne: belated impeachment evidence about Vaughn’s violent acts would have undermined witness credibility and affected verdict | Government: evidence was disclosed collectively; impeachment evidence not material because case did not rest on Vaughn alone and other witnesses corroborated guilt | Affirmed — district court did not abuse discretion; no reasonable probability of different result |
| Pagan’s criminal-history calculation at sentencing | Pagan: PSR overstated his criminal history (points for juvenile cannabis and wrong probation length for traffic offense) | Government: initially accepted PSR at sentencing; on appeal agrees PSR was incorrect | Reversed in part — plain error found; sentence vacated and remanded for resentencing with corrected criminal-history calculation |
Key Cases Cited
- United States v. Moshiri, 858 F.3d 1077 (7th Cir. 2017) (standard for sufficiency review)
- United States v. Longstreet, 567 F.3d 911 (7th Cir. 2009) (rent/payment agreement can establish conspiracy)
- United States v. Brown, 726 F.3d 993 (7th Cir. 2013) (buyer-seller relationship vs. conspiracy)
- United States v. Contreras, 249 F.3d 595 (7th Cir. 2001) (distinguishing buyer-seller from conspiratorial relationships)
- United States v. Hall, 608 F.3d 340 (7th Cir. 2010) (right to instruction on defense theory)
- United States v. Sinclair, 74 F.3d 753 (7th Cir. 1996) (duplication as basis to refuse instruction)
- United States v. Campbell, 985 F.2d 341 (7th Cir. 1993) (participatory link explanation)
- United States v. McGee, 408 F.3d 966 (7th Cir. 2005) (duress/duress defense limits)
- Bailey v. United States, 444 U.S. 394 (1980) (duress standards)
- Brady v. Maryland, 373 U.S. 83 (1963) (government must disclose favorable material evidence)
- Youngblood v. West Virginia, 547 U.S. 867 (2006) (materiality standard for suppressed evidence)
- United States v. Salem, 578 F.3d 682 (7th Cir. 2009) (new impeachment evidence ordinarily not material)
- United States v. Jenkins, 772 F.3d 1092 (7th Cir. 2014) (adopting erroneous PSR info that alters Guidelines is plain error)