U.S. v. Cooper, s. 91-3800

• Citation: 19 F.3d 1154
• Decision Date: 23 March 1994
• Docket Number: Nos. 91-3800,s. 91-3800
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexander COOPER and Anthony Davis, also known as "Future", Defendants-Appellants. & 92-1375.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1154

19 F.3d 1154

UNITED STATES of America, Plaintiff-Appellee, v. Alexander COOPER and Anthony Davis, also known as "Future" Defendants-Appellants.

Nos. 91-3800 & 92-1375.

United States Court of Appeals Seventh Circuit.

Argued Jan. 5, 1994.

Decided March 23, 1994.

Stephen P. Sinnott, argued, Andrea L. Davis, Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

Jeffrey Urdangen argued, Cynthia Giacchetti, Chicago, IL, for Anthony Davis.

James W. Reilley, Reilley & Associates, Des Plaines, IL, Rick Halprin, Carol Repasky, argued, Chicago, IL, for Alexander Cooper.

Before EASTERBROOK and RIPPLE, Circuit Judges, and MIHM, District Judge. ^*

MIHM, District Judge.

In 1983, Robert Parker started working for Alexander Cooper laundering and investing proceeds from Cooper's drug enterprise. In July 1988, Parker contacted the Internal Revenue Service for the purpose of providing detailed information concerning Cooper's financial assets and drug trafficking. This contact eventually led to federal agents setting Parker up as an informant operating from an office and apartment at the Doral Plaza hotel in Chicago's Loop area. From the Doral, federal agents planned to monitor Cooper's drug enterprise.

In early January 1989, Cooper discovered that Parker was acting as an informant for the government and began making arrangements to get rid of him. Cooper met several times with high-level members of his organization, including Anthony Davis, regarding the problem Parker posed to the organization. On the evening of February 6, 1989, Cooper had other members of his organization pick Parker up at the Doral and transport him to the Stop Restaurant, located at 6607 S. King Drive, Chicago, Illinois. After a brief conversation with Cooper, Parker and Davis left the restaurant together. Shortly before midnight, Parker's body was discovered laying by the curbing on a Chicago street. He had been shot five times, twice in the head, with a .380 caliber semiautomatic pistol.

Federal agents arrested Cooper on July 23, 1989. At the time of the arrest, Cooper had in his possession almost $130,000 in cash, approximately $150,000 in jewelry, travel documents for Brazil and Nigeria, and false identification, including an application for a passport in a false name. On July 24, 1989, pursuant to a search warrant, Chicago Police searched Davis's apartment. The Police found cocaine, drug paraphernalia, a loaded .357 magnum revolver, a .22 caliber rifle, an empty .380 caliber ammunition box, and pictures of Davis posing with guns. On May 24, 1990, federal agents arrested Davis.

STATEMENT OF THE CASE

Appellants Anthony Davis and Alexander Cooper, along with 19 other defendants, were named in a 62 count indictment. The indictment named Davis in four counts: conspiracy to distribute narcotics (Count 1); intentional killing of Robert Parker (Count 3); killing of a witness (Count 4); and possession of cocaine (Count 58). The indictment named Cooper in a majority of the 62 counts. Following the voluntary dismissal of several counts and the filing of a superseding indictment, Cooper was charged as follows: one count of conspiracy to distribute narcotics (Count 1); one count of engaging in a continuing criminal enterprise (Count 2); one count of intentionally inducing the killing of Robert Parker (Count 3); one count of causing the killing of a witness (Count 4); one count of soliciting the murder of a witness, Henry Leon Harris (Count 7); five counts of possession with the intent to distribute cocaine and heroin (Counts 25, 26, 41, 43, & 46) four counts of distribution of cocaine and heroin (Counts 6, 18, 29, & 37); twenty-four counts of using the telephone to facilitate a federal felony (Counts 9-14, 17, 20-23, 27, 28, 32-35, 39, 40, 42, 44, 45, 47, & 48); three counts of persuading grand jury witnesses to evade legal process (Counts 49, 50, & 53); two counts of hindering others from communicating with law enforcement officers (Counts 51 & 52); one count of making false statements to secure a passport (Count 54); one count of attempting to prevent the testimony of witnesses (Count 59); and two counts of making false statements on tax returns (Counts 61 & 62).

On May 10, 1990, the government filed a notice of intent to seek the death penalty against Cooper and Davis for Counts 2 and 3, pursuant to 21 U.S.C. Sec. 848.

On January 7, 1991, the district judge ordered separate trials for Cooper and Davis.

On March 7, 1991, the jury in Cooper's trial found him guilty of all counts charged with the exception of a not-guilty finding on Count 23 and no finding as to Count 4. The trial court held a death-penalty hearing pursuant to 21 U.S.C. Sec. 848(g), and on March 15, 1991, the jury did not unanimously find that the court should sentence Cooper to death. On March 19, 1991, the district court sentenced Cooper to: 20 years for Counts 7, 18, 25, 29, 36, 37, 41, 43, and 46; 10 years for Counts 49-53, and 59; 5 years for Count 54; 4 years for Counts 9-14, 17, 20-22, 27, 28, 32-35, 39, 40, 42, 44, 45, 47, and 48; 3 years for Counts 61 and 62; and life imprisonment for Counts 1, 2, and 3 of the second superseding indictment.

On September 25, 1991, the jury in Davis's trial found him guilty on all four counts. The trial court held a death-penalty hearing, and on October 17, 1991, the jury did not unanimously find that the court should sentence Davis to death. On February 3, 1992, the district judge sentenced Davis to life imprisonment for Counts 1, 3, and 4 and to 20 years imprisonment for Count 58 of the second superseding indictment.

On November 22, 1991, Cooper filed a timely notice of appeal, and on February 11, 1992, Davis filed a timely notice of appeal. This Court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.

On appeal Cooper raises one issue: whether the trial court properly found that Davis failed to establish a prima facie case that the prosecutor had exercised peremptory challenges of black jurors on the basis of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Davis presents five questions for appeal: (1) did the government's exercise of peremptory challenges to exclude four black potential jurors violate the Equal Protection Clause pursuant to Batson; (2) should the trial court have suppressed statements made by Davis to Agent Richard Ludowig; (3) was an ammunition box illegally seized during a search; (4) was the evidence presented at trial insufficient to sustain Davis's convictions on Counts 3 and 4 of the indictment; and (5) was 21 U.S.C. Sec. 848(e)(1) improperly applied to the facts of this case. The Court answers the question raised by Cooper in the affirmative, but answers the questions raised by Davis in the negative. The Court affirms the convictions of both Cooper and Davis.

I. BATSON v. KENTUCKY

In Batson v. Kentucky, the Supreme Court set forth a three-step framework for evaluating claims that a party opponent had used peremptory challenges during jury selection in such a manner as to violate the Equal Protection Clause. First, the objecting party must establish a prima facie case that peremptory challenges were used to exclude a prospective jury on the basis of race. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-23. Second, once a prima facie case is established, the burden shifts to the government to articulate a racially-neutral explanation for striking the particular juror in question. Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. Third, the trial court must determine whether the objecting party has carried his burden of proving purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24. See also Hernandez v. New York, 500 U.S. 352, 357-60, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991) and United States v. Chandler, 12 F.3d 1427 (7th Cir.1994).

To establish a prima facie case of purposeful discrimination under Batson, the objecting party must demonstrate: (1) that he is a member of a cognizable racial group; (2) that the government used a peremptory challenge to remove from the venire a member of a cognizable racial group; and (3) that the facts and any other relevant circumstances raise an inference that the opposing party used the peremptory challenge to exclude the venireperson on account of that person's race. United States v. Ferguson, 935 F.2d 862, 864 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 807 (1992), citing Batson, 476 U.S. at 96, 106 S.Ct. at 1723.

The district judge conducted jury selection in the separate Cooper and Davis trials in two stages. He first screened potential jurors by questioning consistent with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). At that stage he asked two questions addressing whether the potential juror would find the death penalty appropriate under any circumstances and whether the potential juror felt the death penalty should always be imposed when available. He then went on to conduct the customary voir dire inquiries into the backgrounds and attitudes of the potential jurors. Pursuant to Rule 24(b), each party had twenty peremptory challenges. Fed.R.Crim.P. 24(b).

A. Cooper Case

Cooper objected to the government's use of peremptory challenges excluding potential jurors Smith and Johnson, both black. The government made the strikes against Smith and Johnson at stage two of the jury selection process. At the time the strikes were made, thirty-seven venirepersons had been interviewed as potential petit jurors. Of those thirty-seven, eight were black. Ten of those interviewed had already been selected for the petit jury. Of those ten jurors, four were black.

The district judge initially denied Cooper's request for a Batson hearing in chambers and out of the presence and hearing of the jury. In his written memorandum opinion filed later in conjunction with his ruling on post-trial motions, the district judge justified his ruling...