U.S. v. Moore

• Citation: 363 F.3d 631
• Decision Date: 09 April 2004
• Docket Number: No. 01-3805.,No. 01-3804.,No. 01-3853.,No. 01-3865.,01-3804.,01-3805.,01-3853.,01-3865.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. M.L. MOORE, Alex Ramos, James P. Young, and Edward L. Jackson, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

363 F.3d 631

UNITED STATES of America, Plaintiff-Appellee, v. M.L. MOORE, Alex Ramos, James P. Young, and Edward L. Jackson, Jr., Defendants-Appellants.

No. 01-3804.

No. 01-3805.

No. 01-3853.

No. 01-3865.

United States Court of Appeals, Seventh Circuit.

Argued May 15, 2003.

Decided April 9, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Drennan (argued), Department of Justice Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

Stanley L. Hill (argued), Hill & Associates, Chicago, IL, Sheldon Nagelberg (argued), Northbrook, IL, Linda Amdur (argued) Kent R. Carlson, Chicago, IL, for Defendant-Appellant.

Before BAUER, COFFEY, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Before us is a group of crooked former members of the Chicago Police Department (CPD) who were set up and eventually busted by the CPD's Internal Affairs Division (IAD) and the FBI. The police officers, who devoted a considerable amount of effort to making money from local drug dealers (and undercover agents whom they mistook for drug dealers) through robbery and acts of extortion at the expense of their public duties, were eventually charged in a 39-count superseding indictment with various racketeering, extortion, robbery, drug, and weapons violations. They were tried together and are now before us in a consolidated appeal challenging different aspects of their convictions and sentences. Because we find no reversible error in any of the judgments, we affirm.

I

Prior to their arrests and convictions in this case, appellants M.L. Moore, Alex Ramos, James P. Young, and Edward L. Jackson, Jr. (to whom we refer collectively as the Officers) were Chicago police officers assigned to the CPD's tactical unit in Chicago's 15th District — the Austin District. Tactical unit officers work undercover to combat illicit drug and gang-related activities. These particular officers worked with drugs and gangs, to be sure, but they slipped over to the wrong side of the line: they used their positions of power to skim money, drugs and weapons from the drug dealers in their district. In the account that follows, we present the facts in the light most favorable to the jury's verdict.

Word of these problems eventually reached the CPD. It began its counteroffensive by ordering Eugene Shepherd, a sergeant in the IAD, to pose as Derrick Simpson, a.k.a. "Silky," a fictitious cocaine trafficker. With the help of IAD and FBI agents, Silky arranged to become a repeat victim of the Officers' acts of extortion. To lure the suspect officers into the trap, Silky had CPD informants call the Officers to let them know that the informant or some other individual was scheduled to meet Silky at a set time and place for a drug transaction. Armed with this information, one or more of the Officers would then show up at the agreed location and extort money from Silky.

For example, on March 28, 1996, an informant known as "Boojie" called Moore and told him that a drug dealer, Silky, was set to meet someone named Ronnie at a McDonalds for a drug transaction. Moore's partner that evening was Young. In response to the tip, the two set out for the McDonalds in an unmarked police car. At the McDonalds they observed Silky and Ronnie talking in Silky's car; after a few minutes they approached Silky's car with their guns drawn. Moore had Silky get out of his car and took a bag from him that contained between $8,000 and $10,000. Moore and Young then handcuffed both Silky and Ronnie and put them in the back seat of the unmarked police car while their cars were searched. Their efforts were rewarded with the discovery in Silky's car of a digital scale, a one-kilogram cocaine wrapper, and plastic bags for selling small quantities of cocaine.

Eventually Ronnie was released, but Silky remained handcuffed in the back seat of the unmarked police car. Young then got into Silky's car and followed Moore's unmarked police car, with Silky still in it, out of the McDonalds parking lot. At one point the two cars pulled over on the side of the road. Young stopped Silky's car next to the police car, rolled down his window, and told Silky, "We get all the money, or you go to jail — we get all your money or you go to jail." The police officers then continued driving. After a brief detour to the nearby city of Oak Park, they returned to the Austin District where they met up in a bus turnaround. Young parked Silky's car and joined Silky and Moore in the unmarked police car, where the three negotiated how much of Silky's money the officers would get in exchange for not arresting him. Silky also volunteered to help the officers ensnare other drug dealers. In the end, Young gave Silky his pager number, and the two officers confiscated close to $5,000 from what they thought was Silky's stash. The McDonalds portion of this incident was captured on videotape and played for the jury during Shepherd's testimony at the Officers' trial.

After giving the Officers several more opportunities to extort money from him, Silky added a new tactic. He enlisted Moore's aid in his fabricated drug trafficking operation by paying him to escort fictitious drug couriers as they allegedly transported drugs along the interstate highway. Silky offered to pay Moore $3,500 each time he escorted one of Silky's drug couriers. In exchange, Moore agreed to follow Silky's couriers in and around greater Chicago. In the event a courier was pulled over by a law enforcement officer, Moore agreed to approach the officer, show his police badge, and attempt to talk the officer out of searching the courier's car. On October 16, 1996, Moore followed a man who went by the name of Darin Counsel from a hotel parking lot in Rosemont, Illinois, to Lansing, Illinois. Moore believed that he was escorting Counsel on a drug run, for a fee of $3,500. After successfully escorting Counsel, Silky told Moore that he was going to need more officers to help escort additional couriers over the holidays. Moore indicated that he knew several other police officers who might be interested in serving as escorts. Silky offered to pay those officers $2,500 each time they escorted a narcotics shipment. Eventually, Moore recruited Ramos to escort Silky's drug couriers. Moore received a finder's fee for the referral. Ramos escorted drug couriers on two separate occasions; Moore did so three times.

The government's case consisted of more than these various acts of extortion and drug escort services. Several of the Officers also participated in robberies of drug-houses about which they received information from informants who were also involved with the IAD/FBI investigation. During these robberies, the Officers confiscated drugs and drug paraphernalia, money, and jewelry, none of which was reported or inventoried according to CPD protocol. Several of the raids were set up by the IAD/FBI agents and captured on videotape.

Eventually the Officers were charged in a 39-count superseding indictment and jointly tried before a jury. The court denied their motions for severance, as well as various other motions challenging the admissibility of evidence. The foursome now appeal these adverse trial rulings, their sentences and their convictions.

II

A number of the arguments before us are common to all four appellants. We address those first and then turn to the individual points presented by appellants Moore, Ramos and Young.

A. Common Arguments

The Officers start with an argument that they concede is foreclosed by earlier decisions of this court. They ask that we find that the Hobbs Act does not reach individual robberies involving drug dealers as victims unless the government proves that the particular robbery had a substantial effect on interstate commerce. They contend that no less is required in the wake of the Supreme Court's decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Yet they have offered no reason why we should revisit our decisions in United States v. Sutton, 337 F.3d 792, 796 (7th Cir.2003) (rejecting argument that the government must show a substantial effect on interstate commerce to support a Hobbs Act violation); United States v. Marrero, 299 F.3d 653, 655-56 (7th Cir.2002); United States v. Peterson, 236 F.3d 848, 852 (7th Cir.2001); and United States v. Bailey, 227 F.3d 792, 797 (7th Cir.2000). Sutton, Peterson and Marrero each explicitly considered the Supreme Court's developing jurisprudence in this area and rejected this argument. They hold that no more than a de minimis effect on interstate commerce need be shown so long as the entity itself belongs to a class of businesses that in the aggregate has a substantial effect on interstate commerce. Other courts of appeals to consider this issue have likewise rejected the Officers' position. See, e.g., United States v. Dupree, 323 F.3d 480, 485-86 (6th Cir.2003) (upholding standard allowing de minimis impact on interstate commerce); United States v. Fabian, 312 F.3d 550, 554-55 (2d Cir.2002) (same); United States v. Williams, 308 F.3d 833, 838-39 (8th Cir.2002); United States v. Toles, 297 F.3d 959, 969 (10th Cir.2002); United States v. Diaz, 248 F.3d 1065, 1084-85 (11th Cir. 2001).

Several courts, including our own, draw a distinction between the robbery or extortion of an individual and the robbery or extortion of a business. See, e.g., United States v. Lynch, 282 F.3d 1049, 1054-55 (9th Cir.2002); Diaz, 248 F.3d at 1084-85; United States v. Wang, 222 F.3d 234, 238-39 (6th Cir.2000); United States v. Collins, 40 F.3d 95, 100-01 (5th Cir.1994); United States v. Mattson, 671 F.2d 1020, 1024-25 (7th Cir.1982). Individual drug dealers, however, when robbed in their capacity as such, are treated as business entities. The Officers' conduct in this...