U.S.A. v. Smith et al

Page 554

223 F.3d 554 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Frank Smith, Keith McCain, Russell Ellis, Eric Wilson, Sherman Moore, Steven Pink and Charles Poteete, Defendants-Appellants.

Nos. 98-1501, 98-1578, 98-1683, 98-1684, 98-2005, 98-2179, 98-2570

In the United States Court of Appeals For the Seventh Circuit

Argued September 10, 1999

Decided August 17, 2000

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 509--Paul E. Plunkett, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Manion and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

For many years, the Gangster Disciples (GD) street gang operated a massive drug distribution business in the Chicago area. Eventually, the government caught up with it, and in 1995 the grand jury returned indictments against different members of the GD gang. We considered the appeals of other GDs in United States v. Jackson, 207 F.3d 910 (7th Cir. 2000), and in United States v. Irwin, 149 F.3d 565 (7th Cir. 1998). In the present case, we have before us the appeals of seven more members from their convictions and sentences for a variety of drug, weapons, and money laundering offenses. We affirm on all counts.

I

The phrase "street gang" hardly begins to describe the breadth and complexity of the GD organization, which began its operations in Chicago in the early 1970s. Its chairman was Larry Hoover, for years an inmate of the Vienna Correctional Center in Vienna, Illinois, and now an inmate of the maximum security federal prison known as ADX Florence, in Florence, Colorado. Next in command was Gregory Shell, who served as Hoover's go-between to GD leaders who were not in prison. As of 1993, the GDs had approximately 6,000 members.

As we have explained elsewhere, see Jackson, 207 F.3d at 913, the GDs were organized along both territorial and hierarchical lines. Below Hoover and Shell and the board of directors were the Governors, each of whom was responsible for a specific geographic territory. The Governors had Assistant Governors, and in addition each Governor had several Regents working under him. Each Regent in turn had several coordinators and soldiers working for him and for whom he was responsible. The number of coordinators and soldiers was referred to as the "count." Defendants Keith McCain ("Khadafi"), Sherman Moore, Eric Wilson ("Fat Eric"), and Russell Ellis ("Poncho") were all Governors; defendants Steven Pink ("Chi Chi") and Charles Poteete were Regents; and defendant Frank Smith ("L'il Frank") collected drug money for Shell and sold cocaine for the group. The GDs as a whole protected their territory from incursions by rival gangs, using violence where necessary. They sometimes used minors, armed with guns provided by the GDs, to provide security and protection for GD leaders and drug dealers.

The GDs had an elaborate code of conduct and set of rules for the internal management of the organization. They enforced these codes through punishments, known as "violations"; they typically spoke of "violating person X." The violations could be as lenient as fines or as stringent as severe physical beatings, depending on the infraction. Gang leaders decided which punishment was appropriate for which misdeed.

The GDs sold drugs throughout Chicago and the surrounding areas. They organized their sales both by territory and through the coordinating efforts of the Governors and the higher gang leadership. The Governors supervised their own territories, ensured that members did not interfere with one another's sales, and kept tabs on rival drug sellers. In addition, the Governors and Regents often served as drug suppliers for their territories. The principal illegal substance involved in the present case was cocaine, and so we often refer simply to cocaine for the sake of simplicity.

Hoover devised a number of ways by which the street profits from cocaine sales worked their way up to the higher levels of the GD organization. First, he developed the system of "nation work." This referred to the obligation of members to devote one day a week to sales for the GD organization. GD leaders provided members with cocaine to sell on those days and required them to return all receipts to the leaders. As recorded on tapes from prison, see generally Jackson, Hoover estimated that "nation work" would be extremely lucrative, guessing that it would bring in $300,000 per week. Next was the "street tax," under which GDs were required to pay $35 to $75 per week to their leaders on pain of being "violated." The leaders, in turn, had to pay "count" on a weekly basis, which was an amount determined by the number of GDs in the leader's territory. In addition, Regents had to pay $50 to $200 weekly to fund one of the GDs' political organizations, the 21st Century Vote project. Last, GD members were required to buy tickets to concerts sponsored by another ancillary organization, Save the Children.

The government's investigation relied heavily on tape recordings of conversations among high- ranking GD members. We discussed in some detail the recordings made of Hoover and his visitors at Vienna in Jackson. In addition, the government wiretapped June's Shrimp on the Nine, a southside restaurant purchased for Shell by a former gang crimes police officer. GD members occasionally used June's Shrimp as a meeting place. Finally, GD Governor Cedric Parks and GD Board Member Darryl Johnson were wiretapped.

The government also used a document it discovered in the files of Save the Children (which was owned by Hoover's female partner). The document was a list describing the territorial and hierarchical organization of the entire GD operation, and it was known simply as "The List" at the trial. Hoover had mentioned his desire to develop such a document in some of the taped conversations, which he wanted to use to keep track of gang members and their payments to the GDs. "The List" includes all of the defendants here except Wilson.

Before turning to the many arguments raised in this appeal, we review briefly (1) who the players are, (2) what they were accused of doing, and (3) what they were convicted for. We also set forth the charges in the superseding indictment, for ease of reference. (The charges in the original indictment were dismissed on the government's motion.)

A. Indictment

Count 1: Operation of drug conspiracy, 21 U.S.C. sec. 846.

Count 2: Operation of a continuing criminal enterprise (CCE), 21 U.S.C. sec. 848(a).

Counts 3, 4: Using minors to further drug conspiracy and to avoid detection, 21 U.S.C. sec. 861(a), 18 U.S.C. sec. 2.

Counts 5-8, 10, 11, 13-17, 28, 38, 39: Possession and distribution of drugs by various individuals, 21 U.S.C. sec. 841(a)(1), 18 U.S.C. sec. 2.

Count 12: Attempted possession with intent to distribute drugs by conspirators, 21 U.S.C. sec. 846, 18 U.S.C. sec. 2.

Counts 9, 18-27, 29-37: Using or causing use of telephones to facilitate drug crimes, 21 U.S.C. sec. 843(b), 18 U.S.C. sec. 2.

Count 40: Using a firearm during a drug trafficking crime, 18 U.S.C. sec. 924(c), 18 U.S.C. sec. 2.

Count 41: Money laundering, 18 U.S.C. sec. 1956(a)(1) (B)(i).

B. Defendants, Accusations, and Convictions¹

Name    Position        Charges         Convictions 
______________________________________________________
McCain  Governor,       Counts 1-40      Counts 1-8, 
        South East                       11-27, 29
        Chicago                          31-36,39, 40
______________________________________________________
Moore   Governor,       Counts 1-40      Counts 1-7
        Near West
        Chicago        
______________________________________________________
Ellis   Regent          Counts 1-40      Counts 1-8
        under Moore,                     11-27, 29, 31
        later                            36, 39, 40 
        Governor
______________________________________________________                                
Wilson  Governor        Counts 1-41      Counts 1-8
        after Ellis                      11-27, 29,
                                         31-36, 39-41
______________________________________________________
Pink    Co-Regent,      Counts 1, 7,     Counts 1, 7,
        McCain          10, 14           14
        territory 
______________________________________________________
Poteete Regent,         Counts 1, 5,     Counts 1, 5, 6
        Moore           6
        territory
_______________________________________________________
Smith   Collection      Counts 1, 17     Counts 1, 17
        agent
_______________________________________________________

We have organized our discussion of this complex set of appeals as follows. We consider first the issues raised in the consolidated brief filed on behalf of all defendants; next we consider the individual issues that related to convictions; and finally, we consider the individual sentencing issues.

II

A. Common Issues

1. Section 848(b)

Offense Element or Sentencing Factor?

Defendants McCain, Moore, Ellis, and Wilson (the Governor defendants) begin with an argument to which the Supreme Court has given significant attention in recent years. Count 2 of the indictment charged all four with engaging in a continuing criminal enterprise in violation of 21 U.S.C. sec. 848(a), which provides in pertinent part as follows

Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment, to a [specified] fine . . . , and to the forfeiture prescribed in section 853 of this title; except that if any person engaged in such activity after one or more prior convictions of him under this section have become final, he shall be sentenced to a term...