U.S.A. v. Phillips et al
| Citation | 239 F.3d 829 |
| Decision Date | 01 February 2001 |
| Docket Number | Nos. 99-3052,99-3937,99-3677,s. 99-3052 |
| Parties | (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JARRODE E. PHILLIPS, also known as JAKE, also known as TRIFE, also known as TRIFLING; FRANK E. STORK; LAMAR TAYLOR, also known as BULLET; and JOHN S. WAFFORD, also known as J. HENDERSON, also known as VIETNAM, Defendants-Appellants. & 00-1045 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:98 CR 67--Robert L. Miller, Jr., Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before FLAUM, Chief Judge, and BAUER and HARLINGTON WOOD, JR., Circuit Judges.
Following jury trials, defendants- appellants were convicted on numerous counts relating to their involvement with the Dawg Life street gang in South Bend, Indiana, and now appeal.
On April 19, 1999, after a three-week trial, a jury found three of the defendants guilty as follows: Phillips of maintaining a place for the purpose of manufacturing, distributing, or using a controlled substance, relating to the crack house at 303 LaPorte Street and the crack house at 1115 East Indiana Street, and possessing firearms as a felon; Stork of committing a violent crime in aid of racketeering in violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. sec.sec. 1961-68, and use of a firearm during a crime of violence; and Taylor of committing a violent crime in aid of racketeering activity in violation of RICO, using a firearm in relation to a violent crime, and helping to maintain a crack house at 1115 East Indiana Street. On October 13, 1999, after a separate two-day jury trial, Wafford was convicted of committing a violent crime in aid of racketeering in violation of RICO, possessing a firearm after having been convicted of a felony, and using a firearm during a crime of violence.
Because both trials contained much of the same testimony and evidence, the background information from the two trials is presented together. As several of the issues concern the sufficiency of the evidence, the facts are set forth in detail.
Testimony showed that Dawg Life began in the early 1990s as the Southeast Side Dogs street gang, operating in specific territory on the southeast side of South Bend, Indiana. The gang was involved in the sale of illegal drugs, particularly cocaine, both on the street and from certain gang-operated crack houses. The price paid to acquirecocaine depended on the amount the member could sell as well as his rank in the gang. The more cocaine a member sold, the lower the price he paid. Certain crack houses were controlled by Dawg Life, with only members allowed to sell drugs from the house.
The lowest-ranking members of Dawg Life were referred to as "Little Locs," with ("Gangsta Loc") being the next ascending rank. The highest-ranking members were known as "O.G.s" ("Original Gangsta"). There were identifying handshakes for each rank within the gang. The higher-ranking members received more privileges. Lower-ranking members went to higher-ranking members for drugs in order to make money. One of the Little Locs testified that Wafford, an O.G., had suggested the Little Locs pool their money, which they then gave to Wafford until they had a greater amount to purchase cocaine based on the fact that the price was incrementally less when purchased in greater quantities.
Like other gangs, Dawg Life used hand signs to identify themselves as members and to differentiate themselves not only from other gangs but from friendly subgroups which developed within the gang. Two subgroups within Dawg Life were the Dawgy Style Mafia ("D.S.M.") and the Rush ("Ruthless Unstoppable Street Hustlers") Street Gangstas ("R.S.G."). Phillips and Stork were G. Locs in the R.S.G. Taylor was a G. Loc in the D.S.M. Wafford was an O.G. in the D.S.M. Members also identified themselves by wearing the Dawg Life colors of brown and black (the colors of a Rottweiler or Doberman pinscher).
Dawg Life members advanced in rank by committing acts of violence, which increased the member's reputation within the gang and correspondingly increased the gang's reputation within the community. Members would "put in work" in order to advance. One member testified that "putting in work" meant "shooting, robbing, whatever," and that he was encouraged to shoot a rival gang member because it "might get you a higher rank." One member's brother moved up a rank when he shot someone. Another member stated that an act of violence like a shooting "increases the [member's] position in the gang and they recognize and respect him more." Members could be voted out of the gang if they were not deemed sufficiently violent. One of the witnesses testified he had been voted out of Dawg Life because he "wasn't ready for the funk," defining funk to mean, "like a war or something."
Retaliation also gained a member respect and advancement. Members of Dawg Life lived by the saying "Retaliation is a Must." The gang produced and distributed CDs and tapes to members only, which contained a song entitled "Retaliation is a Must."
Dawg Life also used hand signs to show disrespect to rival gangs or any non-gang persons. One of the threatening signs flashed was O.B.K., meaning "Off Brand Killer." Anyone not from the southeast side was labeled "off brand," and Dawg Life members flashed the sign to warn anyone "off brand" of what the gang might do to them. One witness testified that he was walking with about five friends when two black males approached them and threw the O.B.K. sign, which, the witness said, was like a warning "right before an enemy about to attack." When one of the black males pulled a handgun and began firing, the witness was shot in the ankle. The same witness was also physically assaulted on another occasion by males who identified themselves as members of Dawg Life.
The gang also used personalized graffiti on rival gangs' territory to show disrespect, such as O.B.K. and "Dawg Life 4 Life."1 It was not uncommon for Dawg Life and rival gangs to exchange gunfire. Dawg Life members responded violently when rivals spoke badly of them or showed disrespect. Members would either beat up or shoot rivals. Dawg Life members would also assault any non-member who attempted to sell crack from one of their houses.
All members of Dawg Life attended "meeting[s] with a purpose" (clarified as "not just a party"). Discussions at these meetings included obtaining money to purchase cocaine, what would be done to anyone selling cocaine who was not a Dawg Life member, driving out rival drug dealers who were selling in their southeast territory, and the use of particular weapons in shootings.
On August 29, 1997, at approximately 11:30 a.m., a mail carrier was near a home at 1143 Huey Street, which is located on the north side of South Bend within the territory of the Huey Street Posse, one of Dawg Life's rivals. A police officer testified that 1143 Huey was the residence of Leroy and Charles Humbles, members of the Vice Lords/Huey Street Posse gang.
The mailman saw a stranger in the front yard of the home fire several shots in a north-northeasterly direction. Almost immediately after, he saw a car coming from the north corner slow to a near stop in front of 1143 Huey. He then heard two shots being fired and saw the car speed away. One witness stated that he believed the shots were fired from the passenger side of the car. The mailman provided police with a detailed description of the car and a partial license plate number. Moments before the shooting, a high school student in the area saw someone in the car flash the O.B.K. sign. This student had previously been shot by a Dawg Life member who first flashed the O.B.K. sign at him. The student also recognized the car as belonging to a Dawg Life member. The car was easily identifiable because the body was black with gold rims and had a visible blue primer spot on one door.
Within minutes after the shooting, police saw a car matching the description given by the mailman and began following. After a chase, the car eventually stopped and four occupants fled on foot. Police apprehended two of the occupants, one of whom exited from the front passenger side and was identified as Frank Stork. A .44 caliber,-semi-automatic handgun manufactured in Israel, was recovered from the car. Casings found in the car and on Huey Street were both fired from the .44. Stork, who identified himself as a Dawg Life member, eventually admitted that he had fired the handgun in the direction of the house. He stated that he had heard shots fired and then fired his gun. Dawg Life held a meeting shortly after the shooting and testimony was given that at the meeting Stork discussed the type of gun used for the shooting and the problems he had with firing the gun.
Charlotte Flemming, age 4, was inside the home at 1143 Huey and was injured by metal fragments from the aluminum storm door striking her face when shots penetrated into the house. Two fragments imbedded in her face, one in her cheek and the other above her eye. The fragments were surgically removed but she was left with two permanent scars.
David Carrell lived on the southeast side of South Bend in Dawg Life territory and testified that he had never been a member of any gang. Carrell had several physical altercations with various gang members due to his refusal to join and was often flashed the O.B.K. sign. Carrell was conversing with Taylor's cousin when Taylor interrupted and began arguing with Carrell. Taylor repeatedly referred to Dawg Life and told Carrell, "[T]his is Dawg Life," and "If you ain't down with the life, you ain't shit." Carrell...
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