UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BYRON BROWN, et al., Defendants-Appellants.
Nos. 17-1650, 17-2854, 17-2858, 17-2877, 17-2899, 17-2917, 17-2918, 17-2931, 17-3063, & 17-3449
United States Court of Appeals For the Seventh Circuit
ARGUED JUNE 3, 2020 — DECIDED AUGUST 28, 2020
Before SYKES, Chief Judge, and WOOD and ST. EVE, Circuit Judges.
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.
I
A
The defendants now before us were the core group that formed the Hobos. Although the Hobos did not have a structure 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 criminal 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 attempted murder), and robbery.
Drug Trafficking. The Hobos ran many drug lines throughout Chicago‘s south side. Defendant Bush managed two heroin lines, known as “Cash Money” (identifiable by the baggies’ green dollar signs) and “X-Men” (identifiable by the red Xs on the baggies). Ford and others sold the Cash Money line
Council and other Hobos oversaw drug lines at the Robert Taylor Homes, selling “Pink Panther” marijuana and crack cocaine (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 cooperated with law enforcement, and defend their drug trafficking territory. The Hobos had long-running rivalries with several other gangs, including the BDs and associated BD factions 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 Hampton and his uncle were driving when they were shot at by a passenger in a car driven by Stanley. Both were hit—Hampton 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
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 Darnell. 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 several 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
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 Daniels—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 Department (CPD). Information he provided led to the search of an apartment from which Council supplied crack cocaine. During the search, CPD officers seized cocaine, crack cocaine, heroin, cannabis, and firearms from the apartment. Council figured 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 began providing information about the Hobos to law enforcement. 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
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 arresting 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 followed, 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 information 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 supplier. 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 November 2008, Council and three other Hobos robbed a clothing 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.
B
Before we proceed to the defendants’ many contentions, we offer a brief overview of the charges. Of the nine defendants involved in these appeals, three pleaded guilty to one count of RICO conspiracy, in violation of
| # | Charge (Violated Statute) | Bush | Chester | Council | Derrick | Ford | Poe |
|---|---|---|---|---|---|---|---|
| 1 | RICO Conspiracy ( | G1 | G | G | G | G | G |
| 2 | Murder of Moore in Aid of Racketeering ( | G | G | ||||
| 3 | Murder of Anderson in Aid of Racketeering ( | G | |||||
| 4 | Murder of Bluitt in Aid of Racketeering ( | G |
| 5 | Murder of Neeley in Aid of Racketeering ( | G | |||||
| 6 | Obstruction of Justice through Murder of Daniels ( | G | |||||
| 7 | Use of Firearm During Crime of Violence (Robbery of Collections) ( | G | |||||
| 8 | Possession of Firearm by a Felon ( | G | |||||
| 9 | Possession with Intent to Distribute Marijuana ( | G | |||||
| 10 | Possession of Firearm in Furtherance of Drug Trafficking Crime ( | NG |
The trial lasted about four months, and more than 200 witnesses 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 convictions, 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 tackles various evidentiary challenges; Section IV addresses sentencing contentions; Section V discusses Brown‘s individual
II
We begin with the defendants’ challenges to the sufficiency 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 reasonable 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
Under the RICO statute, an “enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in
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. Although most gangs allegedly have initiations, treasurers, dues, and manifestos, the Hobos did not bother with those formalities.
The defendants also dispute the government‘s contention that the Hobos’ loyalty and protection of one another was indicative of common purpose. The evidence on which the government 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 admitted 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-
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 independent 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, identifiable 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 Montgomery described the Hobos as a gang. Cashell Williams, a Fifth Ward BD, testified that his gang had a rivalry with the Hobos.
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 murders 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 Hobos shot the BDs to retaliate against a rival gang and to control Hobos territory.
And this was not all. Many other crimes illustrated the relationships 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’ cooperative 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 managed certain Cash Money drug spots, and Montgomery collected 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.”
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 evidence before this jury was sufficient to establish a RICO enterprise.
2. Derrick Vaughn
Derrick contends that even if there was a Hobos enterprise, 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 [Derrick] 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 participation in the Hobos’ racketeering activity. For example, in recorded conversations between Derrick and Courtney Johnson (a government cooperator), Derrick admitted to Johnson that he participated in the Bluitt and Neeley murders. He described hearing his co-conspirators’ gunshots and mentioned that he saw the victims dead. Even though Derrick may not
Several of Derrick‘s co-defendants also implicated him. In a recorded conversation, Ford mentioned Derrick‘s involvement in the Bluitt and Neeley murders. Jones similarly testified 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 Derrick‘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 personal and unrelated to their respective gang affiliations, and so, in his view, the shooting could not have been part of a conspiracy. 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 Johnson 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
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 insufficient evidence to support their convictions on this Count, which charged them with murdering Moore in aid of the Hobos racketeering conspiracy, in violation of
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, testified 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. Montgomery saw Poe fire a .40 caliber firearm from the back passenger window. Bush and Montgomery then left the scene.
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 downstairs, and saw a maroon vehicle speeding east on 43rd Street before making a left on Langley.
Offering further support, Marcus Morgan, a Met Boy, testified 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 explained that he killed Moore because Moore “turned state evidence on another Hobo,” Council.
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, Montgomery 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 testified 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
Next, the defendants argue that even if they actually committed the murder, the government failed to present sufficient evidence that it was “for the purpose of ... maintaining or increasing position in” the Hobos enterprise, as required under
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 apartment was based on false information.” The hearing established that “Moore had in fact acted as an informant and supplied 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.”
Finally, the defendants argue that there was insufficient evidence that Moore‘s murder was “committed in a cold, calculated 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 aggravating 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 defendants 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 rational 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. Furthermore, the search of Council‘s “crib” occurred about 18 months before Moore‘s murder. This was enough to permit
C. Count 3 - Anderson‘s Murder
Count 3 alleged that Bush murdered Terrance Anderson in aid of the racketeering enterprise, in violation of
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” Anderson. 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, intentionally 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 constitutes 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 murdered Anderson: Council “grabbed [Anderson], slammed him to the ground and hit him,” and then Bush “grabbed him
In a recorded conversation, Ford told Todd that one of the Brown twins saw Bush kill Anderson. Kevin Montgomery testified 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 began “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 (although 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 baseball 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.
Bush and Council also argue that Bush did not kill Anderson for the purpose of maintaining or increasing his position within the Hobos enterprise. See DeSilva, 505 F.3d at 715. Instead, 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’ territory. 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 enterprise or that he committed it in furtherance of that membership.” Id.
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 premeditated. Bush and Anderson had a long-standing dispute over drug territory, and Anderson shot Bush in 2005 as a result 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 support 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
In Derrick‘s recorded conversations with cooperator Johnson, 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 carried 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, Council, 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
In recorded conversations, Ford told Todd about his participation 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 Chester‘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 Hobos 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 addition, 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 eyewitness testimony.
Despite all this evidence, Derrick argues that the government 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 participation 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 reasonable doubt by any rational jury.”
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 defendants 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 implicated themselves in recorded conversations. Bush orchestrated the caravan and yelled “go.” Williams testified that he saw Ford during the shooting. This is enough, particularly recalling again that the jury was entitled to make credibility determinations.
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
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 immediately. 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 racketeering activity included the commission, or aiding and abetting, of the attempted first-degree murders of Andre Simmons and Darnell Simmons. Bush argues that the only evidence introduced against him in this respect was the unreliable testimony 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 Council was in the rear passenger seat. Todd got into the car behind Bush. The group sat and waited, watching a black Nissan
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 crushing 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 vehicle. 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 attempted 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
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 evidence 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
We already have noted that Council‘s brother, Keith Daniels, 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 federal grand jury on April 4, 2013. On April 10, Chester was arrested 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 arresting 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
After Poe left, Peatry called 911. She knew Poe from previous 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
In addition, the government produced evidence from other sources. FBI Special Agent Bryant Hill testified that, consistent 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 Daniels 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 girlfriend. 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 provision, “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 administration of that proceeding.” Torzala v. United States, 545 F.3d 517, 522-23 (7th Cir. 2008). A grand jury investigation can constitute 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
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 contacted 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 highlights 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 testified 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 Daniels meet with Murphy and Royal while Daniels was cooperating. 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
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 murdered 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 evidence to show that, in killing Daniels, he intended to obstruct a pending judicial proceeding. This is a more difficult question.
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.
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 Chester‘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 another Hobo. And Poe spoke to Chester while he was in custody, 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 Chester 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 unaware 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
Nevertheless, there was sufficient evidence to allow a rational 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 federal 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, Zentmyer 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 support the district court‘s decision to deny Poe‘s motion for acquittal 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
This time, we have no trouble finding ample evidence to support the conviction. At trial, Bland testified that he, Ahmad Hicks, and Pierre Skipper were sitting in a vehicle with firearms on their laps, when Council approached them. Council 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 visible 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 gunpoint. 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.
These are minor or easily explained discrepancies. Regardless 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 inconsistent, 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 discrepancies or credibility issues Bland presented.
It appears likely that the jury credited Bland‘s testimony because it was corroborated by the video captured by Collections’ security cameras. The footage shows the robbers entering the store and Bland and Hicks carrying guns. The employees 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 employees ... which is consistent with testimony that guns were used to gain their swift compliance. With such an orderly process, 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
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
Council contends that Hobbs Act robbery is not a crime of violence under
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 violation of
There are three elements required for a conviction under
This evidence permitted the jury to conclude that Ford intended 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
We also briefly comment on Ford‘s contention that he should not have been tried at all in the case as a whole, because he was not named in the Second Superseding Indictment. Ford was charged in four counts of the Superseding Indictment: 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 indictment, 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 clarification of “[w]hat indictment” was the subject of trial. The district court answered that the trial was proceeding on the Superseding 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
We are not persuaded. First, Ford‘s motion came too late, as it is among those that
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 pursuant to the forfeiture-by-wrongdoing doctrine violated their Sixth Amendment Confrontation Clause rights. Poe joins this
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.”
One such exception is common-law forfeiture by wrongdoing. Codified in
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 provides 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
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 confrontation 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 confrontation rights occurs only if the defendant acts with the specific 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 reasonably 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 foreseeable 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 unavailability.’”); United States v. Dinkins, 691 F.3d 358, 386 (4th Cir. 2012) (“We conclude that the district court properly admitted the … hearsay statements against [the defendant who
Pinkerton itself was not decided until 1946, and it was controversial from the outset. One scholar had this to say about it:
In the years following Pinkerton, the decision was almost universally condemned by the academic community. And, although no statistics exist, Pinkerton liability 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 acceptance.
Alex Kreit, Vicarious Criminal Liability and the Constitutional Dimensions 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 Amendment in 1791. In the 18th century, criminal liability was generally 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.
The statements at issue came from Daniels‘s grand jury testimony. The defendants objected to the admissibility of certain 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. Council is his older brother. Daniels was familiar with the Hobos through Council and others. Chester was the leader of the Hobos, 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
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 funeral 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 witnesses. Daniels‘s grand jury statements provided general information 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 participated 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, robberies, and narcotics activity) that was part of the enterprise and for which defendants were prosecuted in state court. In
Their effort to preserve this issue for possible Supreme Court review made sense at the time, but events have outstripped them. After the defendants filed their briefs, the Supreme 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 seemingly 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 defendants do not challenge the qualifications of any of these four experts. Rather, the defendants challenge only the reliability 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
These markings are either (1) “class characteristics,” which are features that a group shares, (2) “sub-class characteristics,” 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 casings, were fired from the same firearm when the class and individual characteristics of two items, such as casings, match.
Pomerance examined 9mm cartridge casings that were recovered 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 between .40 caliber cartridge casing from the Wilber Moore murder and the same type from the October 2005 shooting.
The defendants argue that the district court erred in denying their motions to exclude this toolmark evidence on reliability grounds.
A district court “holds broad discretion in its gatekeeper function of determining the relevance and reliability of the expert 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 defendants urge that it occurred in this instance when the district court found that the toolmark analysis is sufficiently reliable. They assert that the “premise underlying the field of firearms analysis—that no two firearms will produce the same microscopic features on bullets and cartridge cases—[i]s, at
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 identifies only one such study, the Ames Study. According to PCAST, the other available studies could not estimate the reliability 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 representative 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 dispositive 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 product 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
Taking these criteria into account, the district court found the toolmark evidence was admissible. It noted that the Association of Firearms and Toolmark Examiners (AFTE) methodology 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 address 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 arguments 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
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 Daniels‘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 updates 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 confront Jodale with the calls before they could be introduced as prior inconsistent statements under
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 irreconcilably at odds. In such an event, the cross-examiner is permitted to show the discrepancy by extrinsic evidence 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 hallmarks of Rule 613(b).…In contrast, Rule 608(b) addresses situations in which a witness’ prior activity, whether exemplified by conduct or by a statement, in and of itself casts significant doubt upon his veracity.…So viewed, Rule 608(b) applies to a statement, as long as the statement in and of itself stands as an independent 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 testimony. Jodale testified that he knew nothing about the Hobos
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, pursuant to a search warrant. The officers found 99.6 grams of heroin. 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 detention 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
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 question Chester on October 22 and denied Chester‘s motion to suppress.
At trial the jury thus heard Chester‘s incriminating statements. 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 enforcement, but he refused to testify publicly.
“Probable cause to make an arrest exists when a reasonable person confronted with the sum total of the facts known to the officer at the time of the arrest would conclude that the
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 information 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 Chester 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 aspect of what the arresting officers, particularly those who
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 ambiguous at best. Moreover, he argues, “it simply does not matter 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 unclear. 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
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 presence of the jury. He did not object to the prosecutor’s statements at trial, however, and so we review his claim of prosecutorial 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 intentionally relinquished or abandoned;” (2) that was “clear or obvious;” (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 different;” and (4) that “seriously affect[ed] the fairness, integrity, 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 participation in the execution of a search warrant at a residence associated with Bush. During this testimony, Brogan was
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 [Ingemar] 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 evidence of his guilt beyond his familial association to the Hobos. Moreover, the court instructed the jury that a defendant
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 sentenced to life. They contend that these sentences were improper 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 penalty includes life imprisonment.”
These defendants’ violations were based on their participation in murders in Illinois. As we noted briefly earlier, under Illinois law first-degree murder is normally punishable by a 20- to 60-year sentence.
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 defendant’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
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 “generic” definition of RICO’s predicate offenses and then to limit the government to generic murder, rendering life imprisonment unavailable under Illinois law. This argument is not consistent with the text of the statute.
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.
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 committed in aid of the enterprise. For instance, Paragraph 8(r)(i) alleged that the “murders committed by members and associates of the enterprise in the conduct of the affairs of the enterprise” 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 defendants eligible for enhanced penalties. Using this example, the defendants argue that only Council and Poe had notice
We are not persuaded. In the example, every defendant was placed on notice that the murder of Moore was committed 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 Paragraph 8(r) of specific coconspirators who committed particular murders does not affect the potential coconspirator liability of the remaining defendants.
Chester individually argues that the government constructively amended the superseding indictment by improperly shifting from a solicitation theory to coconspirator liability. At trial, the government argued that Chester’s racketeering 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 amendment.
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) knowingly and intentionally distributing heroin. In July 2014 the Probation Officer prepared a Presentence Investigation Report (“PSR“). The PSR listed Chester’s offense level as 26 and
On August 4, 2017, the district court conducted a joint sentencing hearing for all defendants to calculate their offense levels under the Sentencing Guidelines. For Chester, it determined that his racketeering activity resulted in an offense level of 51, reduced to 43 (the top level) and that his Guidelines range and statutory maximum for the racketeering offense was life imprisonment. The court did not explicitly calculate 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 heroin 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 racketeering case.
Chester argues that the district court’s imposition of a sentence so far above the recommended Guidelines range in the heroin case, without comment or explanation, was both procedurally and substantively unreasonable. At sentencing, district courts must calculate the Guidelines range, give the defendant an opportunity to identify section 3553(a) factors that might warrant a non-Guidelines sentence, and explain its sentence in relation to the section 3553(a) factors. Gall v. United States, 552 U.S. 38, 49–50 (2007); United States v. Dorsey, 829 F.3d 831, 836–37 (7th Cir. 2016).
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 conspiracy, 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
At his sentencing hearing, Stanley objected to the determination that his racketeering activity included the murders, attempted murders, and drug trafficking mentioned in his PSR. The court overruled his objections, based largely on the evidence 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 discredit “the much larger and much more significant consistencies 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 Disciples out of this area and to take it over for the Hobos,” referring to an altercation between Stanley and the BDs. The court also concluded that the evidence was sufficient for the attempted murders. To each racketeering act, it added an obstruction enhancement that increased the proposed offense
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 disputed, however, whether it should run consecutively or partially 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 Stanley’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 serious 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 presented 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-
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 nature 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, inconsistent, 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 incident, 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
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, convicted felon, or large scale drug-dealing, paid government informant.” 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 began shooting. Bush, who was with Stanley, also began shooting. Todd’s testimony was corroborated by a CPD officer’s testimony that an eyewitness to the shooting reported a license plate of a vehicle at the scene. The report matched National Car Rental records showing that Stanley rented a blue GMC SUV that was returned on the day of the shooting without license plates.
Next, Stanley asserts that the district court abused its discretion by running Stanley’s sentence consecutively to his undischarged sentence for the Springfield drug conviction. The government points us to
Stanley responds in two ways. First, he emphasizes that the Springfield conduct was relevant conduct to the racketeering case. See U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, Guideline § 5G1.3(b) applies. It states: “If … a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction … the sentence for the instant offense 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 mandatory.
But nothing in the Guidelines is mandatory anymore. United States v. Booker, 543 U.S. 220 (2005), “made all Guidelines 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 concurrent 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 imposed a partially concurrent sentence because he was sentenced as a career offender in the Springfield case. Although the career-offender designation was correct at the time of sentencing, Stanley argues, his earlier Illinois Residential Burglary conviction is no longer a qualifying predicate offense for
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
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 opportunity 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 pressured him to do so.
The district court discussed the terms of the plea agreement’s cooperation provision with Brown. Although the murder-in-aid-of-racketeering charge carried a mandatory minimum 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 continued cooperation with the government. At the request of the district court, the government summarized what would be required 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 confirmed that he understood and agreed to do so. He also confirmed that he understood that the government had sole discretion to determine whether he lived up to that obligation.
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 motion 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 accusations were “exceedingly unreliable,” and that “summary denial without a hearing [was] warranted.” On March 14, 2017, the district court sentenced him to concurrent terms of life imprisonment on the two counts.
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 advice 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 quotation marks omitted). Moving to withdraw a guilty plea does not automatically entitle a defendant to an evidentiary hearing. See United States v. Collins, 796 F.3d 829, 834 (7th Cir. 2015). A defendant must offer substantial evidence supporting 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
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 argument for plain error, which requires error that is plain, obvious, and prejudicial. United States v. Fuentes, 858 F.3d 1119, 1120−21 (7th Cir. 2017). Brown has come nowhere near meeting that standard.
Moreover, even assuming Brown received ineffective assistance 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 insisted 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 decide whether Brown provided complete and truthful cooperation 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
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 felony 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 provide 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 sentencing judge the extent of defendant’s cooperation. If the government 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
In November 2017, the government filed a sentencing memorandum. Pursuant to section 5K1.1, it asked for a sentence of 297 months based on Jones’s cooperation and testimony 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 calculated Jones had already served for the Freeman case. This
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 voluntary. 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 confront witnesses. See
“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 substantial 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 represented since his arraignment. And Jones’s plea agreement advised him that he had the right to confront witnesses at trial.
The court also failed to discuss the appeal waiver contained in Jones’s plea agreement. See
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 factor (such as race), or … the sentence exceeded the statutory maximum.” Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1998). Neither exception applies here. Jones’s sentence of 450 months was within the statutory maximum (life imprisonment) and it was within the parties’ agreed range. Jones’s sentence was also not the result of a constitutionally impermissible 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 excellent handling of the case. We AFFIRM the convictions of all the defendants. We also AFFIRM the sentences of all the defendants 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.