United States of America,
Nos. 98-2035, 98-2036, 98-2037, 98-2038 & 98-2060
United States Court of Appeals For the Seventh Circuit
Argued September 27, 1999--Decided April 3, 2000
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 CR 908--James B. Zagel, Judge.
Before Posner, Chief Judge, and Ripple and Rovner, Circuit Judges.
Posner, Chief Judge. The defendants, members of Chicago‘s “El Rukn” street gang, were indicted along with other members of the gang in
The appeals present almost 20 separate issues, but we confine our discussion to those that have at least colorable merit. Although all the appellants are represented by counsel, Robinson has filed a pro se supplemental brief. Earlier motions by him to file such a brief were repeatedly denied. Eventually the presiding judge of this panel allowed it to be filed; but on further consideration, given the lateness of the filing (long after the case was argued), we have decided to vacate the order allowing the brief to be filed. It goes without saying that a represented litigant has no right to file a pro se brief, e.g., United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998), and although we can permit such a filing in appropriate circumstances, e.g., Hayes v. Hawes, 921 F.2d 100, 101-02 (7th Cir. 1990) (per curiam), given the lateness of the filing and the repetitive character of the motion the circumstances are not appropriate.
At the first trial--the one set aside because of prosecutorial misconduct--Edgar Cooksey was a defendant and he was convicted with the others. But after the new trial was ordered, he pleaded guilty, and he testified for the government at the second trial. The examination of Cooksey both by the government‘s lawyer and by one of the defense lawyers, which was conducted over a period of three days, brought out the fact that Cooksey hаd been a codefendant of at least some of the current defendants, that they had been indicted in 1989, that he had testified at a previous jury trial in 1991 called “United States v. Boyd” (which the current jury knew, of course, was the title of the case it was hearing), that he had spoken to the judge in that trial in “allocution” and had “accepted responsibility” for his acts, that he had pleaded guilty shortly before the beginning of the current trial, and that he had been in prison continuously since 1991. The lawyers for the other defendants thrice objected to the questions that elicited this information, and moved for a mistrial on the ground that the jury was bound to infer that the defendants had been convicted by a previous jury. The government concedes that it can be a reversible error to disclose to the jury (or allow the jury to discover) that a defendant was previously сonvicted by another jury, see, e.g., United States v. O‘Keefe, 722 F.2d 1175, 1179 (5th Cir. 1983); United States v. Attell, 655 F.2d 703, 705-06 (5th Cir. 1981); United States v. Williams, 568 F.2d 464, 470-71 (5th Cir. 1978), though reversal is not automatic. Patton v. Yount, 467 U.S. 1025, 1031-35 (1984); United States v. Keating, 147 F.3d 895, 900 (9th Cir. 1998); cf. United States v. Bruscino, 687 F.2d 938, 940 (7th Cir. 1982) (en banc); United States v. Plescia, 48 F.3d 1452, 1464-65 (7th Cir. 1995). And reversal is out of the question--no possible prejudice is shown--if the damning fact is not actually disclosed. Judge Zagel refused to grant a mistrial, saying he thought it unlikely that the jury would infer that the defendants had previously been found guilty; if he was right, the question whether the jury could have set aside their knowledge of the fact would not even arise.
The next issue concerns the admissibility of tape recordings of telephone conversations in 1985 and 1986 in which the defendants made incriminating admissions. The defendants argue that the reliability of the recordings was never adequately determined, that some may have been tampered with, and that the government violated the Brady rule by failing to disclose a specific problem with the accuracy of the tapes that could have been used to impeach the government‘s evidence. Brady v. Maryland, 373 U.S. 83 (1963). Because tape recordings at once are devastatingly effective evidence and are susceptible to tampering that is very difficult to discover, Title III--the federal statute that regulates electronic surveillance--requires that recordings “be done in such way as will protect the recording from editing or other alterations.”
The admissibility of the copies was not challenged at the first trial, and the district judge ruled that this waived the issue as to all the appellants but Mays, who was not a defendant at that trial. The judge was wrong. Rulings made at a previous trial of the same case only presumptively control the second trial, under the doctrine of law of the case, Alston v. King, 157 F.3d 1113, 1116 (7th Cir. 1998), and when the ruling concerns the admissibility of evidence the presumption is either nonexistent, Tang v. Rhode Island, 163 F.3d 7, 11 (1st Cir. 1998); United States v. Akers, 702 F.2d 1145, 1147-48 (D.C. Cir. 1983), or weak, Menzer v. United States, 200 F.3d 1000, 1004-05 (7th Cir. 2000); United States v. Williams, 2000 WL 204531, at *11 (2d Cir. Feb. 23, 2000); United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990); United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982), since issues of admissibility are often highly contextual and evidence at a second trial will often deviate significantly from that at the first. See, e.g., Coal Resources, Inc. v. Gulf & Western Industries, Inc., 954 F.2d 1263, 1265-66 (6th Cir. 1992). (The presumption is strongest when the ruling concerns a rule of law, and some cases might be taken to suggest that it operates only then. Arizona v. California, 460 U.S. 605, 618 (1983); Payne v. Churchich, 161 F.3d 1030, 1037 n. 8 (7th Cir. 1998).) Even the Ninth Circuit, which takes a harder line on the binding effect of evidentiary rulings made in the first trial, United States v. Tham, 960 F.2d 1391, 1397-98 (9th Cir. 1991), does not regard failure to object at the first trial as an irrevocable waiver. Id. at 1398; United States v. Seidman, 503 F.2d 1027 (9th Cir. 1974). The judge‘s error in supposing the defendants absolutely precluded from challenging the admissibility of the copies at the second trial was peculiarly harmless, however, since he had to discuss the merits of the issue of admissibility with regard to Mays, and that discussion is equally applicable to the admissibility of the tape recordings against the other defendants. And so let us turn to those merits.
The fact that the recordings used at the trial had not been sealed was not, as the defendants argue, fatal; nor the fact that the seals had been broken (the seals have to be broken at some point, if the recordings are to be placed in evidence). Neither Title III nor the case law places specific restrictions on the manner in which the сontents of tape-recorded conversations can be communicated to the jury at trial. See
The contents of a recorded communication governed by Title III can lawfully be disclosed even if the recording was not under seal, provided the absence of the seal is satisfactorily explained.
But it is not the case that these recordings were merely removed from the boxes and envelopes pursuant to judicial order and played to the jury; they were not played to the jury at all; copies were played to the jury and the second and separate issue concerning their admissibility is whether the copies were adequately authenticated. On this issue two types of evidence were presented that the judge found convincing. First, one оf the turncoat witnesses, Jackie Clay, testified that a recording of a telephone conversation that he had participated in back in 1986 was accurate. Although testifying ten years later Clay could hardly have been certain about the matter--any pretense of certainty would merely have cast doubt on his credibility--participants in other recorded conversations who testified for the government were not asked by the defendants’ lawyers whether the recordings were accurate. The district judge inferred from testimony
Clay‘s testimony was weak because of the lapse of time. The agent‘s was stronger, although not airtight. For one thing, he didn‘t compare all the tapes played at trial with the originals. Rather, he conducted a spot check, and having discovered no discrepancies in the tapes that he sampled decided not to check further. For another, there is an unexplained discrepancy between one of the original recordings and its duplicate original, which although supposed to be identical contained conversations not audible on the original. The expert who examined the two tapes could not determine the cause of the discrepancy. It could have been a malfunction, or it could have been a bit of creative editing, but the latter inference, as the judge determined, was the less likely, precisely because the duplicate contained more conversation than the original. It was the duplicate that was used in evidence, and if the government had edited out portions that favored the defendants, the original would have had more conversation than the duplicate. Although it is possible in principle that the government “edited in” additional conversation to the duplicate, there is no indication at all of this more elaborate form of tampering. Similarly, while it would have been preferable had the agent checked all the tapes, no reasons hаve been suggested for doubting either the good faith or the adequacy of his sampling.
It is essential to distinguish between excluding evidence for want of adequate authentication, and challenging its weight. The defendants were entitled to and did question the weight that the jury should give the tape recordings in light of the possibility of tampering, but questions of authentication are governed by
The Brady rule requires the government to disclose evidence it knows about that would be helpful to the defense, whether because the evidence is exculpatory or because it could be used to impeach the government‘s evidence. Brady v. Maryland, supra, 373 U.S. at 87; Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999). The discrepancy between one of the original tapes and its duplicate, a discrepancy that could have been used to some effect to impeach the government‘s taped evidence, may have arisen as early as 1986, when the two recordings were made; in any event it was not recent, and the defendants ask us to infer from this that the government must have known about it. But of this there is no other evidence and the inference is implausible because the government prepared its case from the duplicate originals while thе “original originals” remained in storage. So far as appears, the discrepancy was first discovered by the defendants, who
We come last to the most troubling issue in the case--whether Judge Zagel should have disqualified himself from presiding at this trial. We have already held, in another case involving the El Rukns, that Judge Zagel‘s refusal to disqualify himself was not a plain error, United States v. Franklin, 197 F.3d 266, 270 (7th Cir. 1999), but the question remains whether it was error. There is a threshold procedural question, whiсh is both novel and unnecessary to resolve.
The defendants also argue, however, that Judge Zagel should have disqualified himself under either of two other subsections (or both) of
In 1983, at which time the now-Judge Zagel was the head of the Illinois state police, Robinson opened a restaurant in Chicago. Late in 1985 or early in 1986, when Zagel was still head of the state police, Robinson hired security guards for his restaurant from a company called Security & Maintenance Service (SMS), which was owned and operated by El Rukn “General” Hunter, a key government witness at the 1996 trial here on appeal. These guards were unarmed but SMS had applied for a license that would permit them to be armed. The El Rukns’ purpose in operating a security agency whose employees were authorized to carry weapons wаs, of course, to strengthen the gang‘s position in the endless turf wars in the course of which the murders with which these defendants were charged were committed. The authorities got wind of the scheme. They were already investigating the El Rukns (whose drug and related criminal activities went back to the 1960s, remember) by means of a joint federal, state, and local task force that included members of the Illinois state police. The task force conducted a “sting” of SMS. An Illinois state police officer played a key role in the sting, operating undercover and dealing directly with Hunter and Robinson. In June of 1986, Chicago police officers who were members of the task force and who later worked on the present case raided SMS‘s premises, which Robinson owned, and arrested (at another location) 18 of its employees. One of them, Crowder, was a defendant in the first trial of this case and a defense witness in the second trial, the trial before Judge Zagel.
The day of the arrest, Director Zagel held a joint press conference with Richard Daley, at the time the Cook County prosecutor. They announced the arrests and explained that they had begun investigating SMS when they learned that Crowder, an El Rukn “captain,” had applied for a state firearm identification card. Zagel remarked that “street gangs [such as the El Rukns] have grown to rival organized crime in the scope of their operations, and in the savagery in which they control entire sections of the city.” The El Rukns task force produced the evidence that led to the 1989 indictments of the present defendants. Not only did two of the El Rukns who had been involved in the SMS caper testify at the trial before Judge Zagel, but they testified--Hunter extensively--about the caper, using it to tie Robinson to other El Rukn activities as well.
In denying the motion to recuse, Judge Zagel said that the SMS investigation had
This conclusion is only superficially in tension with our (and Judge Zagel‘s) crediting the facts alleged in Robinson‘s affidavit in support of his motion to recuse Judge Zagel under
The cases interpreting the participation clause do not require a formal identity between the proceeding in which the government employee who is now a judge participated or expressed an opinion about; it is enough if they overlap significantly. See, e.g., United States v. Outler, 659 F.2d 1306, 1312-13 (5th Cir. 1981); Jenkins v. Bordenkircher, 611 F.2d 162, 166 (6th Cir. 1979); Mixon v. United States, 608 F.2d 588, 591-92 (5th Cir. 1979). And there was an overlap here, in the part of the SMS investigation that linked Robinson to the El Rukns. But Director Zagel never expressed an opinion about that aspect of the investigation, and the requisite “participation” is not imputed to a supervisor by virtue of his supervisory authority; it must be personal, and it was not. E.g., Mangum v. Hargett, 67 F.3d 80, 83 (5th Cir. 1995); Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993); United States v. Di Pasquale, 864 F.2d 271, 279 (3d Cir. 1988). The exception noted in the last-two cited cases for where the supervisor is the U.S. Attorney is not applicable here.
Recurring briefly to
Several sentencing issues remain to be discussed. Green and Mays argue that their sentences violate the ex post facto clause,
Green has a better argument, that he could not be given a sentencing enhancement for having been a leader of the conspiracy (
Green‘s best case is United States v. Torres, 901 F.2d 205, 226-27 (2d Cir. 1990), which held that the ex post facto clause forbids punishing the defendants as “principal administrators, organizers, or leaders” of a continuing criminal enterprise if their leadership role did not continue after the enactment of the statute creating the offense, even though the enterprise itself
Last, we note some clerical mistakes in the judgments. Mays‘s judgment should reflect a guidelines life sentence on count 3 and 60 months on count 4, rather than vice versa, and Green‘s judgment should reflect a life sentence on counts 1 and 3 and concurrent 10-year terms on counts 4 and 5, rather than a life sentence on counts 1, 4, and 5 and a 10-year sentence on count 3. As modified to correct these mistakes, the judgments are
Affirmed.
RIPPLE, Circuit Judge, dissenting. The panel is unanimous in its view that the trial judge should have recused himself under
The rule that mandamus is the only avenue by which a party can seek review of a ruling under
No other court of appeals has followed our approach. See Kenneth M. Fall, Note, Liljeberg v. Health Services Acquisition Corp.: The Supreme Court Encourages Disqualification of Federal Judges Under Section 455(a), 1989 Wis. L. Rev. 1033, 1056. Some circuits have rejected explicitly our position. The Third Circuit has said that mandamus is the preferred method of appeal, but allows review on direct appeal because it may provide a “partial cure” to any harm to the public perception of the judiciary. See In re School Asbestos Litig., 977 F.2d 764, 777 n. 12 (3d Cir. 1992). The Tenth Circuit has held that, although
Moreover, we not only stand alone among the circuits in our approach to this question, but we also have taken a position in considerable tension with the decisions of the Supreme Court of the United States. Indeed, the Supreme Court appears to have taken a different path. Although the Court has not rejected explicitly that mandamus is the only avenue of review for
This case points out one of the pitfalls of our approach. As the Third Circuit has suggested, a trial judge well might appear unbiased at the outset of a trial, but later events might cause a judge‘s impartiality to be reasonably questioned and thus make appropriate the “partial cure” of reversing the improperly obtained verdict. Asbestos Litig., 977 F.2d at 777-78. Indeed, in one recent case, the First Circuit, although denying mandamus relief, specifically left open the possibility that further development of the record could lead to a different conclusion on an appeal from final judgment. See In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir. 1997). Regardless of whether this panel would have issued the same ruling as the earlier motions panel if it had been presented with the record available at that early stage of the litigation, the record made at trial has convinced us that recusal is necessary. There must be public confidence in a judgment that incarcerates defendants, in some cases for the rest of their lives. The trial of this matter was a difficult task. It required that the trial court make many rulings, both with respect to the admissibility of evidence and the enhancement of sеntences, that required the exercise of a great deal of discretion.
After thorough review of the record, this panel believes that the district judge should have recused himself under
The majority characterizes the defеndants’ reference to the earlier mandamus proceeding as a waiver of the argument
Moreover, even if the defendants did not raise this issue, we аre in no way precluded from raising it on our own in the interests of justice. The Supreme Court has acknowledged that it often decides cases on issues other than those argued fully by the parties:
“On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered ‘fairly subsumed’ by the actual questions presented.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 37, 111 S. Ct. 1647, 114 L.Ed.2d 26 (1991) (Stevens, J., dissenting) (citing cases). The court has not always confined itself to the set of issues addressed by the parties.
Kolstad v. American Dental Assoc., 119 S.Ct. 2118, 2127 (1999). The Court has also specifically instructed the courts of appeals that they, too, may raise issues on their own initiative:
The matter of what questions may be taken up and resolved for the first timе on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, or where injustice might otherwise result.
Singleton v. Wulff, 428 U.S. 106, 121 (1976) (citations and quotations omitted); see also Niedert v. Rieger, 200 F.3d 522, 527 (7th Cir. 1999) (quoting Singleton); United States v. Brown, 739 F.2d 1136, 1145 (7th Cir. 1984) (same).
Prior to Singleton, the Ninth Circuit explained the circumstances that might motivate a court of appeals to address a matter without the benefit of full briefing by the parties:
There is . . . no rigid and undeviating judicially declared practice under which courts of review invariably and under all circumstances decline to consider all questions which have not previously been specifically urged. Indeed there could not be without doing violеnce to the statutes which give federal appellate courts the power to modify, reverse or remand decisions as may be just under the circumstances. Exceptional cases or particular circumstances may prompt a reviewing court, where injustice might otherwise result or where public policy requires, to consider questions neither pressed nor passed upon below.
Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir. 1961) (citation and quotations
If we may sua sponte raise and decide substantive questions of law, then surеly we have the power to sua sponte alter the procedures we ask litigants to follow in their efforts to seek resolution of their substantive questions of law. It is well settled that stare decisis has less effect in the context of procedural rules, which do not serve as a guide to lawful behavior. See Hohn v. United States, 524 U.S. 236, 251-52 (1998); United States v. Gaudin, 515 U.S. 506, 521 (1995).
The prosecution of the El Rukn crime organization has been a deeply troubling episode. Chief Judge Aspen presided over the first trial of this particular case, and, in ordering a retrial, described the situation as tragic, noting that the prosecutorial misconduct in the case had wasted years of hard work by the courts, prosecutors, and law enforcement officers. See United States v. Boyd, 833 F. Supp. 1277, 1281 (N.D. Ill. 1993), aff‘d, 55 F.3d 239 (7th Cir. 1995). Two other El Rukn trials were also declared mistrials. See United States v. Andrews, 824 F. Supp. 1273 (N.D. Ill. 1993); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993). As the judiciary was quick to cоrrect an abuse of power in another branch of government after the first trial, it also ought to be willing to correct an error in its own house--even one made in good faith--so that the public can have confidence that, even in the most notorious of criminal cases, the evenhandedness of the judicial process is above reproach.
It is time for us to join the rest of the Country and permit review by appeal of a failure to recuse under