United States v. Larry Hoover, Tirenzy Wilson, Gregory Shell, Jerry Strawhorn, Adrian Bradd, Darrell Branch, Andrew Howard, and William Edwards

Citations: 246 F.3d 1054; 56 Fed. R. Serv. 1148; 2001 U.S. App. LEXIS 6175; 2001 WL 361014Docket: 98-2600, 98-3433, 99-2142, 98-2820, 98-3840, 00-2520, 98-2915, 99-1377

Court: Court of Appeals for the Seventh Circuit; April 12, 2001; Federal Appellate Court

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In the case of United States v. Larry Hoover et al., the Seventh Circuit addresses appeals from eight members of the Gangster Disciples, a notorious street gang involved in extensive drug trafficking in Chicago. Key figures include Larry Hoover, the gang's leader, and several high-ranking members convicted of operating a continuing criminal enterprise under 21 U.S.C. § 848, resulting in life sentences for five of them. The remaining defendants received lengthy prison terms for drug conspiracy and money laundering.

The appellants challenge the admissibility of wiretap evidence, arguing that the district judge lacked authority to authorize interceptions in the Southern District of Illinois, that the law permitting roving surveillance is unconstitutional, and that the tapes should be suppressed due to improper sealing procedures. These arguments echo those previously dismissed in related cases, reinforcing the court's stance on the validity of the evidence used in their convictions.

The Supreme Court's remand in Jackson allowed for consideration of the implications of Apprendi v. New Jersey, but certiorari was denied regarding wiretap issues. In Wilson, similar arguments were previously rejected, and the appellants presented additional but unpersuasive points, including a claim about the necessity of wiretaps over other investigative methods. The circuit law, supported by earlier decisions confirming the admissibility of the tapes, precludes a third panel from re-evaluating this matter. 

The court affirmed the validity of Continuing Criminal Enterprise (CCE) convictions, indicating that the personal involvement of leaders in predicate offenses is not required. Citing Wilson and Smith, it clarified that leaders can be culpable for crimes committed by others in the conspiracy under Pinkerton's doctrine. The definition of predicate offenses includes violations of 21 U.S.C. § 841, with conspiracy members held responsible for each other's actions. The court rejected the idea that different territories should be treated as separate organizations, noting the jury's finding of a single conspiracy.

Furthermore, it was established that life imprisonment is a lawful punishment for CCE convictions, and thus Apprendi does not alter sentencing for such offenses. Although three defendants not convicted under § 848 argued that the jury should determine drug quantities, they failed to request this instruction at trial, limiting appellate review to identifying plain error and requiring a miscarriage of justice for remand.

To establish a specific punishment under 21 U.S.C. § 841, the prosecution must prove beyond a reasonable doubt the minimum quantity of drugs involved. In this case, a conspiracy to distribute 50 grams of crack cocaine could lead to life imprisonment, while as little as 5 grams could result in sentences under 40 years for other defendants. Evidence indicates that the Gangster Disciples distributed significantly more than 50 grams daily, and the jury's verdict supports the culpability of each defendant for more than this amount, negating claims of plain error.

Defendant Wilson’s argument that any fact increasing a mandatory minimum must be proven beyond a reasonable doubt is inconsistent with precedent established in Smith, which was rejected. Additionally, the claim that 21 U.S.C. §§ 841 and 848 are unconstitutional for not designating drug quantities as elements is also dismissed, based on United States v. Brough.

A key issue arises under Bruton v. United States regarding the admission of a co-defendant's confession implicating others without the opportunity for cross-examination. The prosecutor's redaction of Howard's confession, replacing names with titles like "incarcerated leader" and "unincarcerated leader," did not effectively obscure the identities of Hoover and Shell. The Supreme Court’s decision in Gray v. Maryland emphasizes that such transparent substitutes are inadequate to protect against the confrontation clause violations highlighted in Bruton. Although the district judge could not have anticipated the implications of Gray, the United States' assertion that no error occurred is surprising, as the redactions did not sufficiently conceal the identities of the individuals referenced.

The prosecutor cites United States v. Stockheimer to support the use of placeholders in confessions when their incriminating nature is not obvious to those unaware of other evidence presented at trial. Although Stockheimer noted that a confession referring to an "inner circle" would not incriminate non-confessing defendants without additional evidence, this reasoning conflicts with the principles established in Gray. The notion that pseudonyms can be used unless their identities are deducible from the confession undermines the protections set forth in Bruton. Using vague terms like "inner circle" helps avoid direct associations with identifiable defendants, but the prosecution must make substantial alterations to confessions to prevent clear implications. Despite these concerns, any Bruton error was deemed harmless, as the evidence against Hoover and Shell was overwhelming, rendering Howard's confession inconsequential to the jury's verdict. The defense attempted to argue that the "GD" acronym represented "growth and development" rather than a gang affiliation, but substantial evidence contradicted this claim. Additionally, all defendants challenged the district court's admission of co-conspirator hearsay without a pretrial evidentiary hearing to establish the existence of a conspiracy. While a hearing is one approach, it is not the only method; judges can rely on pretrial proffers or early trial evidence to make such determinations.

The district judge's admission of co-conspirator hearsay was justified by a preponderance of evidence indicating the existence of a conspiracy and that the statements made were in furtherance of its objectives. Notably, Tyrone Reames testified that in August 1988, Strawhorn and another gang member threatened him to alter his account of a murder involving two gang members. Although Strawhorn argued that Reames was not a Gangster Disciples member, the judge focused on Strawhorn's threats as evidence of the conspiracy's aim to protect its members from prosecution. The statement was deemed admissible under Fed. R. Evid. 404(b) because it was integral to the conspiracy charge against Strawhorn.

Bradd, another defendant, initially did not testify but later requested to do so after the defense rested, a request the judge granted, despite the possible disruption to the trial. Bradd's testimony implicated himself and other defendants, including Hoover, by supporting the prosecution's claim about a scheme requiring gang members to contribute drug sale profits. Other defendants sought a mistrial or severance post-testimony, which the judge denied, ruling that Bradd's earlier testimony would not have changed the trial dynamics significantly and that joint trials allow for defendants to point fingers at each other to clarify their roles. The judge provided sufficient opportunity for the other defendants to address Bradd's testimony. Additional claims of trial error raised by the defendants did not warrant further discussion.

Wilson asserted that he joined the GDs in 1987 as a civic organization and denied involvement in drug trafficking. In rebuttal, witness Naseen Soldana, Wilson's ex-wife, testified that in late 1992 or early 1993, Wilson sought her help to connect with drug dealer Reynard McDowell to purchase 15 kilograms of cocaine for $270,000, a transaction facilitated by Soldana. She further claimed that Wilson and McDowell engaged in at least two additional drug deals of 26 kilograms each. Following their separation, Soldana became involved with McDowell, who faced prosecution for drug offenses. She testified under immunity to aid in reducing McDowell's sentence. 

The defense requested a writ of habeas corpus to interview McDowell in Chicago to potentially counter Soldana's testimony. The court refused to issue the writ without first confirming McDowell's willingness to cooperate, given that his attorney indicated he would invoke his Fifth Amendment right against self-incrimination. The district judge concluded that it was impractical to summon McDowell without assurance of his cooperation, thus supporting the decision not to issue the writ. 

Wilson argued that this refusal violated his Sixth Amendment right to obtain witnesses in his favor, but the court found McDowell unlikely to serve as such a witness. The judge's decision was deemed appropriate to avoid unnecessary delays in the proceedings. 

Regarding sentencing, the United States acknowledged an error in Branch's sentencing, specifically the assessment of one criminal history point for a 1980 conviction of resisting arrest, which incorrectly placed him in criminal history category IV, resulting in an incorrect sentencing range of 324 to 405 months.

A sentence of 324 months was imposed on Branch, the minimum within the sentencing range, which indicates that a lower sentence could have been possible if his background were evaluated as category III (292 to 365 months). The court determined that category III is appropriate since Branch's prior conviction for resisting arrest should not count towards his criminal history, as he only served two days—insufficient to accrue a criminal history point. As a result, Branch must be resentenced within the 292 to 365-month range. The original sentence of 324 months is below the midpoint of this adjusted range, allowing the district judge to potentially impose the same sentence on remand, provided there is an explanation for why the change in criminal history did not alter the sentence.

All other sentencing arguments were deemed insufficient for a reduction. Life sentences for other defendants involved in the continuing criminal enterprise (CCE) are affirmed. Although there were claims that a one-day-a-week program did not commence and the nation-work program involved smaller quantities, the anticipated large profits illustrated the extensive scope of the organization, making other defendants accountable for sales beyond their direct involvement.

The court affirmed the judgments for all defendants except Branch, whose conviction remains affirmed while his sentence is vacated and remanded for resentencing. Judge Cudahy expressed concerns regarding Reames' testimony about threats related to a murder unrelated to the current drug conspiracy charges, suggesting that its relevance was minimal and the potential for prejudice substantial, yet acknowledging it likely did not influence the overall outcome.

Evidence of witness intimidation is highlighted as a potent factor that can influence a jury's emotions and decision-making, potentially leading them to deviate from the established facts of the case. In the context of a drug conspiracy case, the inclusion of testimony revealing conduct typical of organized crime, without a direct connection to the conspiracy, was deemed inappropriate. While the outcome of the case may remain unchanged, the testimony by Reames should not have been allowed.

Circuit Judge Rovner expresses concern regarding a prior ruling related to the government's failure to seal Vienna surveillance tapes promptly as mandated by 18 U.S.C. § 2518(8)(a). In *United States v. Jackson*, the court found that the government's rationale for a 32-day delay in sealing the tapes was inadequate. Instead of suppressing the tapes, the court accepted an explanation not supported by the record, which raised questions about the reliability of the government's claims regarding the delay. Rovner emphasizes that arguments based on unsubstantiated facts cannot form the basis for legal decisions, as they deprive the opposing party of the chance to respond and undermine the integrity of the judicial process. The lack of evidence to support the government's asserted reason for the delay in sealing the tapes is particularly troubling, as it has become a precedent affecting numerous appeals without the necessary factual foundation.

Credibility in the judiciary hinges on the consistent and fair application of rules. The court emphasizes that the government must adhere to the same standards as any other litigant, particularly regarding the suppression of critical evidence, such as tapes deemed "the government's strongest evidence." The court expresses concern over the government's failure to provide a record justifying its delays in complying with statutory obligations, arguing that negative consequences do not excuse a departure from fairness and legal principles. Despite accepting the precedent set by a previous case (Jackson) regarding the admissibility of evidence, the court does so reluctantly, critiquing the decision to accept unverified government claims as adequate explanations. Additionally, it argues that reliance on unsupported assertions undermines the legal process, stressing the need for the government to substantiate its reasons for non-compliance in future cases.