*1 America, UNITED STATES
Plaintiff-Appellee-Cross-
Appellant, Williams, JACKSON, Kevin Dion
Harold Garrett, Defendants-
Lewis & Jathel
Appellants-Cross-Appellees, Mallett, Wash,
Derrick Richard Scott
Davis, Doty, Gaines, Michelle James Haywood, Cedric Parks &
Clarence Yates, Defendants-Appel-
James A.
lants. 98-2696, 98-2697,
Nos. 98-2703 to 98- 98-2716, 98-2766, 98-2714 to 98-
2799, 98-2800, 98-2965. Appeals, States Court of
Seventh Circuit.
Argued Jan.
Decided March
Rehearing Rehearing En Banc
Denied May *3 POSNER, Judge, and
Before Chief EVANS, Circuit DIANE P. WOOD Judges.
POSNER, Judge. Chief indicted 39 Gangster Disciples, members of operating southwestern Chi- gang street (argued), Office suburbs, Crowl Chicago Matthew C. on cago and the southern Ap- Attorney, Criminal Twelve of these charges. the United federal narcotics IL, Division, Chicago, individuals, for Plaintiff- in the fed- by jury convicted peals after a three- Chicago district court eral Appellee. *4 us, trial, challenging to their appeal month (argued), Gerald J. Lipuma Francis C. of heavy and sentences —three convictions IL, Collins, Defendant-Appel- for Chicago, to life in were sentenced the defendants lant Jackson. only and four received sentences prison, (argued), Susan Lipuma Francis C. years. shorter than 20 IL, Shatz, Defendant-Appel- for Chicago, complaining that sev- cross-appealed, has lant Garrett. too short. eral of the sentences were IL, (argued), Chicago, George E. Becker few have suffi- Many issues are raised but IL, Walter, Prospect, for Mt. William 0. The evi- merit to warrant discussion. cient Lewis. Defendant-Appellant clearly guilt defendant’s dence of each alleged trial errors were sufficient and the IL, Chicago, (argued), E. Becker George impor- with an part though for the most — Stevens, Pin- Landau & Kopka, J. William nonexistent exception tant —either Point, IN, kus, Defendant-Ap- for Crown clearly harmless. Mallett. pellant favorably as to the Taking the evidence Kent R. (argued), E. Becker George permits, as we as the record Carlson, IL, Defendant-Ap- for Chicago, do, gang a some we have required are pellant Wash. 6,000 of mainly in the sale strong engaged Chicago, Lipuma (argued), Francis C. cocaine, by led an Illi- powder crack and Park, Eberhardt, IL, Tinley E. Stephen Larry inmate named prison nois state IL, Davis. Defendant-Appellant for gang had By early 1990s Hoover. G. (argued), Robert George E. Becker year. As million revenues of some $100 IL, Clarke, Defendant-Appel- Chicago, for magnitude, of such operation befits an lant Doty. Hoover an elaborate structure. gang had directors, and by a board was assisted Donna Lipuma (argued), Francis C. and re- governors were the board below IL, for Defen- Hickstein-Foley, Chicago, along jurisdictions, having territorial gents dant-Appellant Gaines. treasurers, secu- governors, with assistant (argued), Chicago, Lipuma Francis C. chiefs, all de- other officials with rity IL, Defendant-Appellant for Williams. The defendants responsibilities. fined IL, Chicago, George (argued), E. Becker mainly from the lead- are drawn this case Haywood. Defendant-Appellant for (and assis- governors, include ership ranks although regents), governors, tant IL, Chicago, George (argued), E. Becker the leaders. merely assisted some of them Walz, Adamski, E. Gregory A. Katherine Conti, IL, for Defen- Chicago, Adamski & strong Some of Parks. dant-Appellant electronic by obtained est evidence was were IL, Microphones Hoover. surveillance of Chicago, Levy (argued), Howard B. of Hoo- badges in the visitors’ concealed Yates. Defendant-Appellant “the aural “interception” is defined as gang whom were case many of ver’s visitors— captured acquisition” of the contents of a the conversations or other officials—and relayed communication, 2510(4), microphones were on those U.S.C. Illinois, which is southern prison, place took in the “acquisition” that an recorded, and there and listened Chicago, District, agents first Northern since the to, Two the discus by agents. federal Chicago. conversations in listened to the raised the defen sion-worthy issues literally persuaded true and has This is this electronic surveillance. dants concern in which the issue has arisen other courts surveil relating to electronic A third issue Unit- uphold government’s position, Hoover) only requires not of (though lance Denman, ed States It whether a mentions. the briefest of (5th Cir.1996); United States v. Rodri- “roving authorizes surveil warrant (2d Cir.1992); guez, lance,” authorized interception as the such Tavarez, see also 2518(11), here, to 18 pursuant U.S.C. Cir.1994); cf. any phones cellular calls to and from Ramirez, (Darryl Gangster Disciples one of the Cir.1997), creates, govern- but Johnson) use, Fourth might violates the acknowledged with refresh- lawyer ment’s particularity requirement Amendment’s ing argument, potential candor at searched. description place problem the familiar abuse that resembles *5 have no fixed locus and phones Cellular shopping” for conventional “judge of by a tele here were not even identified search and arrest warrants. Candace hold that number. But the cases phone McCoy, “The Good-Faith Warrant constitutional, is roving such surveillance 21 Judge-Shopping?,” Price Cases—What 545, Gaytan, v. 74 553 United States F.3d L. Bull. 53, (1985); Crim. 62 see also Bianco, v. (5th Cir.1996); United States Leon, 897, 918, v. United States 468 U.S. (2d Cir.1993); 1112, 1120-25 (1984). 3405, 677 This 104 S.Ct. 82 L.Ed.2d Petti, States v. F.2d United 973 gloss “acqui- though is true even the cases (9th Cir.1992); Michael see also United acquisition.” sition” to mean “first Goldsmith, Reform: The “Eavesdropping Denman, 403; supra, v. F.3d at States 100 Surveillance,” 1987 U. Roving Legality of Rodriguez, supra, States v. 968 United noth-, 415-25, L. Ill. Rev. and we have still could F.2d at 136. The analysis their of the issue. ing to add to any judge in the United States ask federal do want to dis The first issue we order, simply an interception to issue judge of the is whether the chief cuss intercepted for the communica- arrange court in the Northern Dis federal district district relayed judge’s to be to the tions (which mainly Chicago) of Illinois is trict by agents. and listened to there federal the surveil jurisdiction to authorize had Hawaii, in the inter- judge might The III, regu Title the federal statute lance. Florida, in and the cepted communication surveillance, authorizes an lating electronic per- interception to which the investigation the interception judge order “within tained in Maine. jurisdiction of the court which territorial for abuse is unde- Although potential the 2518(3). sitting.” 18 judge the is U.S.C. niable, us to rewrite it does not authorize in the District prison Hoover’s Southern statute, the defen- especially because argue that of Illinois and the defendants potential has argue that the dants do not power lacked the judge therefore the posi- actual and because their ever become right, If this is the evi issue the order. tion, cre- would curing problem, while one by the surveillance was dence obtained interception or- namely ate §§ inadmissible. 18 U.S.C. another — often have to be obtained ders would Oje v. 2518(10)(a); see also United States wholly adventitious judges at locations Rios, 257, 260 n. da to which the (1990). investigation relation to 1845, 109 govern The L.Ed.2d 224 Admittedly this is pertained. interception far bears on this points ment out that so as
915 well, diately upon expiration period discovery practice a feature id.; gov- anomaly order, thereof,” quite so is not or extensions see See, Fed. Rios, depicts e.g., it as. ernment Ojeda supra, States v. United 495 45(a)(2). Still, accident it is sheer R.Civ.P. 1845; United States at 110 U.S. S.Ct. in southern imprisoned Hoover was Plescia, (7th v. 1463 Cir. Northern Dis- rather than Illinois Wong, 1995); Illinois, that matter Colo- or for trict (2d Cir.1994), it is not Indiana; prison of his rado or the location immediately sealed it can’t be used in evi to the location of his and no relation bears dence unless the offers “sat govern- and of the confederates’ crimes his isfactory explanation” delay for the seal of those crimes. And investigation ment’s 2518(8)(a); United ing. 18 U.S.C. privacy interest in this means that the Rios, Ojeda supra, States v. 495 U.S. at protect likely to be the statute seeks to United 262-65, 1845; protected under the better Plescia, 1463; supra, judge who is interpretation, because Maxwell, States v. in a bet- investigation familiar with the Pedroni, United States materiality appraise ter position (9th Cir.1992). F.2d communications that intercept. wants to inter recordings of Hoover’s Furthermore, although parties have until cepted conversations were sealed territo- that the reference to “the assumed days expiration after the of the surveil the court” is to the jurisdiction rial long lance warrant. That was much too sits, in which the this is not district qualify sealing, as an immediate certain, juris- many purposes since for Williams, beyond diction of a district court extends Wilkinson, (3d Cir.1997); the boundaries of the district. For exam- *6 United 53 F.3d 759-60 jurisdiction of a federal ple, personal the 1375; Wong, supra, States v. at 40 F.3d beyond extends the district court often Pitera, 5 F.3d boundaries, and district and even state (2d Cir.1993), must consider and so we to the nation as whole under indeed explanation was government’s whether the for nationwide ser- provide statutes expire The warrant was to on adequate. Some districts are coter- process. vice of 2,1994, 19 Hoo January but on December much states that are minous with entire micro had discovered the concealed ver districts; the compare than other larger interrupting the surveillance. phone, the of Montana with Southern District recording continue wanted to government for position York. The District of New that Hoover microphone a smaller but with contend would which the defendants It likely be less to discover. need would This the abuse that concerns them. cure ed, needed, thought access to rather if Congress for to solve problem existing recordings order to com problem enough is serious to warrant solu- recordings them with made with pare tion. the new microphone new to make sure most issue The next and troublesome acoustically no worse than recordings were judi- requirement prompt concerns the poor, had been so the old. The old ones sealing recordings intercepted cial Parks, United States v. tape recordings communications. Because (7th Cir.1996), new were yet powerful are evidence of conversations (as eventually turned out to they worse may be ex- susceptible tampering be), installing them in the there was no use discover, they must “be tremely difficult government badges. Since visitors’ way protect done in such as will re- tapes access to the old for wanted to have cording editing or other alterations.” it didn’t want 2518(8)(a). purposes comparison, end, To this 18 U.S.C. judicially “imme- them sealed. recording must be sealed If this were all there tapes was to the have the sealed as soon as the inter- for explanation failing to ception expired, warrant because he antici- recordings judicially have the sealed imme pated seeking an extension of the warrant diately, A enough. it wouldn’t be what he thought within a reasonable time satisfac tory explanation is “objectively one (30 days) expiration. after its He was confi- reasonable,” Rios, Ojeda dent that recording system the new would 266-67, 1845; supra, up be and running by then and he thought Quintero, United States that during period he would need the (3d Cir.1994); 1328-30 original recordings purposes of com- Carson, (3d Cir. parison. When toward the end of this peri- 1992); States, cf. Tuke v. United time, od he realized it ready wouldn’t be Cir.1996), as well as sin he had them sealed at thirty last. But days Quintero, cere. supra, United States v. merely period maximum for which 1326-27; Vastola, F.3d at United States v. authorized, electronic can surveillance be (3d Cir.1993). Hoo 2518(5); 18 U.S.C. it has no relevance to ver’s conversations had been recorded period within which surveillance re- triplicate, so the could have cordings be must sealed. There is no ba- recordings sealed one set of and used one (nor sis in the statute or the case law was compare of the others to recordings with there when had to Safer make the decision made microphone. new It is sur sealed, whether to have the recordings least, prising, say that the Assistant time, which is the relevant Attorney U.S. in charge investiga Rios, Ojeda supra, 495 U.S. at tion, a long-time senior member of the 1845), for a rule that the office, Attorney’s U.S. Safer, Ronald can leave surveillance recordings unsealed unaware that there were duplicate record up days to 30 it ponders while whether ings (It intercepted conversations. to seek an extension. The would be reckless not to in dupli record must have a reason for such a delay. It is or, here, triplicate, cate since it is so later, true that months in May, govern- fail.) easy for recording equipment ment obtained a new authorization to rec- an oversight Such could not thought ord Hoover’s conversations. But “an or- tapes reasonable. One of the sets of could authorizing der surveillance of the same sealed, have leaving been two others for location, subject, at the same regarding purposes comparison. better, And it is *7 the same matter as an earlier authorized from standpoint of minimizing the risk surveillance, constitutes an ‘extension’ of of tampering, to seal tapes and then the earlier purposes authorization for unseal them as needed than to leave them 2518(8)(a) if, if, section but only the new unsealed for an indefinite (though time authorization was obtained as soon as ad- statutory permission original to leave the ministratively practical any delay or is sat- tapes during any unsealed extension of the i.e., isfactorily explained, is shown to have original warrant, surveillance 18 U.S.C. occurred without fault or 2518(8)(a); bad faith on the Carson, su part government.” v. pra, 969 require F.2d makes the Carson, supra, 969 F.2d at sealing ment of a 1488. porous prophylac rather against tic tampering). Nor is it obvious So large a mistake of law as thinking why comparison necessary was a or useful that one has an days automatic 30 to seal method for determining audibility. Re surveillance tapes, large and so a mistake cordings made the new microphone of fact realizing as not that multiple tapes were, not, either or were audible. Listen cut, were difficult are to describe as being ing to the old tapes would cast little if any affidavit, “without fault.” Safer’s only light on the new. government evidence the tendered with
But regard there is more. to the delay, First and reasonableness of the least, Safer believed that he didn’t have to states that days he believed that “30 was
917
Starbuck,
period
E.g.,
of time
fication.
Hernandez v.
69
within that reasonable
well
extension, i.e.,
(10th Cir.1995).
the nature of this
given
F.3d
1093
But that
intercept, same criminal con-
place of
same
inadvertent,
language
probably
or influ
duct,
the affidavit
interceptees,”
same
but
built
exceptions
enced
into waiver
days;
nor is
gives
picking
no reason
30
doctrine,
doctrine,
plain-error
such as the
for the
good grounds
the fact that
existed
shortly.
of which
qualification
more
The
delay in
extension a rational basis for
seek-
language
of these cases occludes
ing
opposite might
argued.
it—the
well be
(that
ground
not have been waived or
“wanted to
The affidavit adds
Safer
court)
easily
forfeited in the district
original tapes
have the
available
com- overlooked
a party
required
because
is not
tapes produced by
to
the new de-
parison
all
in a
possible grounds
advance
its
vice,”
explain why
but does not
this was
judgment
pleadings
motion for
on the
necessary when there were three sets of
summary judgment, with the result
original tapes.
ground,
the failure to advance a
and the
has an
The
alterna
resulting failure of the district court to
ground
point—
tive
for affirmance on
it,
address
do not work a forfeiture. Door
to be
recordings
didn’t have
Systems,
Systems,
Inc. v. Pro-Line Door
extending
sealed because an order
Inc.,
173-74;
supra,
F.3d at
cf.
83
Curran
yet
not
original interception order had
ex
(7th
Kwon,
F.3d
n. 11
153
487 and
2518(8)(a).
This
pired.
18 U.S.C.
Cir.1998).
ground
But a
not raised at trial
ground
presented
not
to the district
is forfeited and
cannot
therefore
be used
court,
but the
asks us to over
appeal.
on
defendant can move to
“[A]
the forfeiture because the facts under
look
summary judgment
dismiss or for
on few
But
lying
argument
are not contested.
possible
er than all
without waiv
grounds
is before
we cannot do
when the case
others,
...
ing
goes
but
the case
judgment
us after a trial.
can affirm a
We
grounds
trial he cannot hold some of his
any
ground
on
that was
waived or
for use
he lose on the
reserve
should
court,
the district
unless one
forfeited
grounds
present.”
he does
v. Ric
Smith
relieving
party
the conditions for
(7th
hert,
Cir.1994).
35 F.3d
present.
waiver or forfeiture is
Jenkins v.
(7th Cir.1998);
Nelson,
157 F.3d
Perhaps, though, it would be a
Systems,
Sys
Door
Inc. v. Pro-Line Door
reject
plain
error
(7th
tems, Inc.,
Cir. ground; and while it is unusual for the
1996); Singletary v. Continental Illinois
in a
arguing plain
to be
error
Co.,
National Bank & Trust
case,
nothing
prevent
criminal
there is
(7th Cir.1993);
Schreiber,
cf. Rowe v.
Brown,
doing
its
so. United States v.
(11th
1382 and n.
Cir.
Cir.1998);
1998).
qualification
that we have itali
Zeigler,
see,
always explicit,
e.g.,
cized is not
Mas
Sprei,
Ludwig,
sachusetts Mutual
Ins. Co.
*8
Life
(2d
Cir.1998);
United States
479, 481,
426
48
U.S.
96 S.Ct.
Barajas-Nunez, 91 F.3d
(1976)
curiam), though
L.Ed.2d
(per
Cir.1996).
(See
P.
also Fed. R. Crim.
only
have
in which it
we
found
two cases
52(b), which draws no distinction between
(but
rejected
explicitly
was
without discus
defendant.)
the
and the
It is
government
sion).
Voting Rights
American
African
government
true that
the
has failed to
Fund,
Villa,
Legal
Inc. v.
Defense
us;
argued
to
it has
argue plain error
International
error,
argue
has
to
the
but
failed
Corp.
Ore & Fertilizer
SGS Control
plain,
realizing, apparently,
error was
not
(2d
Services, Inc.,
Cir.
the error in the dis
1994).
that it had forfeited
cases,
true,
Plenty of other
it is
invoke the
trict court and thus had to
language
might
have broad
be
rule to
But when an
thought
imply
rejection
quali- plain-error
prevail.
to
the
recordings
did
to have the
justice
apparatus),
re-
seek
the interests
plain,
error is
can,
court,
the
If
judicial
if it
to notice
under
seal.
the techni-
quire
placed
the
rather
than to
prompting
prosecutors that
kept assuring
error without
cians
the
unjust
Unhappily
decision.
perpetrate an
day away
completion,
bug
the
was a
plain;
error is not
the
government,
for the
they
would think
naturally
prosecutors
the
For
an
at all.
remember
it is not
error
day.
say,
As we
could wait another
conduct surveil-
to
the new authorization
argued
was
in the
brief but
was not
conversations
lance of Hoover’s
in
affidavit—which
appear
does not
Safer’s
May,
previous
and the
order
sought until
untrue, especially since it
doesn’t mean it’s
January. Re-
expired
previous
had
the
judge
one of the reasons the district
indefinite-
cannot be left unsealed
cordings
recordings
of Hoo-
gave
allowing
years later
ly just
months or
because
conversations to be admitted into evi-
ver’s
to
to convince a
government is able
dence;
argue
do not
and the defendants
Allowing
resume.
allow the surveillance to
point
government
that the
waived
purpose
defeat the
such a hiatus would
suggestion
There is no
the district court.
sealing.
requirement
See United
sealing
government postponed
that the
Rios, supra, 495
at
Ojeda
States v.
U.S.
them,
tamper
to
tapes
order
263-64,
1845;
States v.
110 S.Ct.
any
suggestion
such
the absence of
Carson,
The statute’s drafters did factors. large enterprise, criminal envisage such a in imagine replacing One can the limit receipts annual of a con- for the minimum for assault and murder separate statutes are neces- tinuing enterprise criminal by single a in which the violator statute administrator, sary principal to make a if punished by probation would be he com- subject mandatory organizer, or leader injury mitted an assault that caused no at million, 21 imprisonment life U.S.C. $10 by if in all and death the assault consisted 848(b)(2)(B), which is less than a tenth killing the intentional of the victim. gross receipts annual of the of the The avoidance constitutional issue Gangster could and did attribute to the by statutory is not construction available Disciples. meaning think the literal We 841, in the case of section because by construing not strained overmuch “sev- between the elements of the crime division in rather than absolute eral” relative relating severely factors and to how terms, carry purpose the better to out the much in punish offenders is clearer than provision, although behind the we cannot Jones. Subsec- the statute in interpreted dealing with the find a case issue. Of (a), acts,” captioned tion “Unlawful defines relativity course there are limits to the of of distributing, the offense etc. a controlled If there “several.” we assume were 30 (or controlled) substance, at level higher, GDs Yates’s that would counterfeit while percent be one-half of one of the total (b), “Penalties,” captioned spec- subsection conspirators, number of and it would be “person how the who ifies violates subsec- distinctly odd to think that a reference to (a) namely tion ... shall be sentenced” — 1,375,000 “several” Americans could be to severely depending type more on the people; we think will stretch but “several” quantity drug. The defendants in 30, bearing objec- mind the statute’s distributing this case were convicted of a tive. variety drugs, including marijuana, light- distribution of which calls for a much vexing question,
Next is the
made
841(b)
er
than
sentence
section
other
urgent by
Supreme
Court’s recent de
States,
v.
cocaine,
Jones United
drugs, notably
crack
cision
526 U.S.
one
1215,
119 S.Ct.
justify
juncture
have no need at this
to rule out
suggests, ante
majority
possibility absolutely.
may
There
where mistakes
always
“prejudice”
we
find
unusual circumstances
which an error
*13
result
the
during
proceedings
criminal
may
that benefits a defendant
be so severe
and a
of the Guidelines
misapplication
fairness,
“seriously
that it
the
in-
affect[s]
I accept
for a defendant.
longer sentence
judicial
of
tegrity
public reputation
pro-
or
in prison
extra time
the
proposition
Young,
United States v.
ceedings.”
52(b) pur-
Rule
prejudice
qualifies
1, 15
U.S.
105 S.Ct.
84 L.Ed.2d
law,
that it
court’s
under this
poses
Atkinson,
(1985),
quoting United States v.
consequence
the
should have this
157, 160,
80 L.Ed.
But
the defendant.
this
perspective of
(1936).
adopted
This court
that for-
whether the
question
not answer the
does
U.S.,
mulation in Durrive v.
F.3d
a few extra
failure to win
prosecutor’s
(7th Cir.1993),
at-
govern
collateral
on
prejudice
the
months inflicts similar
on sentences.
It reflects the fact
tacks
thing,
one
a mechanical
government. For
normally reserved
that collateral attack is
ig-
between the two situations
comparison
of
of
only
gravest
the
mistakes —those
the
fact that Assistant U.S.
nores
basic
that cast
constitutional dimension or those
time as a
Attorneys
prison
do not serve
verdict,
integrity
on the
of the
doubt
importantly,
More
the
result of error.
implicate
thus
both the individual defen-
plain
error rule should
application
broadly.
public
dant and the
interest more
this ex-
purpose
related to the
behind
be
cases,
public
In
criminal
the
interest
all
forfeiture
to our normal rules of
ception
As
government represents.
is what the
is,
which
as we
exception
and waiver—an
is
appellant,
the
here
now
before,
have
out
“inconsistent with
pointed
seeking
consequences
relieved of the
be
adversary system,”
of an
premises
If
point
sentencing.
its forfeiture of a
of
Caputo,
all, it
relief
available to it at
should
(7th Cir.1992).
it,
Caputo
“What
put
As
plain
granted only
be
where the error
criminal
justify
anomaly
could
fairness,
effect on the
had a serious
injustice
sphere?
allowing
It is the
of
judicial
integrity,
public reputation
an innocent
or an
person,
conviction of
an
example of such
n unlawfulsentence
er-
proceedings. One
imposed upon
guilty
might
ror
the situation the Sixth Circuit
Id. No such
injustice
person,
to stand.”
Barajas-
considered
if
a sentence
prosecutor
occurs
obtains
(6th Cir.1996). There,
Nunez,
ready decades-long sentences. mistake, with its minimal
chance that this will
sentencing consequences, prompt upon the criminal
public to look askance Durrive, where
justice system. Compare discrepancy was deemed insuffi-
a similar the relevant standard for
cient to meet respectfully attacks. I therefore
collateral disposition the court’s
dissent from cross-appeal. *14 HERMAN, Secretary
Alexis M.
Labor, Plaintiff-Appellee,
LOCAL UNITED STEELWORK- AMERICA, AFL-CIO,
ERS OF
CLC, Defendant-Appellant.
No. 99-3146. Appeals, States Court of
Seventh Circuit.
Argued Feb. March
Decided