448 F.3d 951 (7th Cir. 2006), 04-3890, Shell v. United States

Docket Nº:04-3890.
Citation:448 F.3d 951
Party Name:Gregory SHELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:May 23, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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448 F.3d 951 (7th Cir. 2006)

Gregory SHELL, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 04-3890.

United States Court of Appeals, Seventh Circuit.

May 23, 2006

Argued Feb. 21, 2006.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 c 3182—Harry D. Leinenweber, Judge.

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[Copyrighted Material Omitted]

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H. Ron Davidson (argued), Mayer, Brown, Rowe & Maw, Washington, DC, for Petitioner-Appellant.

Edward Siskel (argued), Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before Manion, Wood, and Evans, Circuit Judges.

Manion, Circuit Judge.

gregory Shell is serving a term of life imprisonment after being convicted for his leadership role in the Gangster Disciples. The government obtained overwhelming evidence against Shell by monitoring his conversations with Larry Hoover, the chieftain of the Gangster Disciples, who was serving time in prison for murder. Shell filed a motion for relief under 28 U.S.C. § 2255, which the district court denied. We granted a certificate of appeal ability on the issue of whether Shell's counsel was constitutionally ineffective for not raising certain challenges at his trial. We now affirm.

I.

Gregory Shell was second-in-command of the Gangster Disciples ("GDs" or the "gang") in Chicago, a gang that had a $100,000,000 per year drug business.1 The founder of the gang, Larry Hoover, had been convicted of murder in 1973, but he retained his leadership position in the GDs from his prison cell in Vienna, Illinois. To maintain order in his absence, Hoover designated Shell as his proxy in 1992, giving him day-to-day control over the gang's operations in Chicago. Shell, a trusted board member who had not been incarcerated, brought a flair for organization to the gang's dealings, efficiently coordinating and systematizing the GD drug network. During Hoover's time in jail, he would often talk to different GD lieutenants over the telephone, but, if the conversation turned to gang business, he would tell his interlocutor to come to Vienna personally. Over a period of ninety months in the late 1980's through the mid 1990's, Shell made the trip from Chicago to Vienna, which is in the most southern part of Illinois, over one hundred times.

In 1993, a DEA task force began investigating Hoover's continuing role with the GDs. The task force applied to Chief Judge Moran of the Northern District of Illinois for a warrant for electronic surveillance, as required by 18 U.S.C. § 2518 ("Title III"). Title III requires applicants for such a warrant to submit a statement, under oath, containing a variety of disclosures, including "(ii). . . a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. § 2518(1)(b). In this case, the application sought a warrant "authorizing the [DEA] and other law enforcement personnel assisting them to intercept oral communications occurring at the Visitor Area [of the Vienna Correctional Facility], between Larry Hoover and Gregory Shell, [and assorted other GD members]." The application was devoid of any information describing the means that the DEA intended to

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employ. Chief Judge Moran authorized the surveillance.

All visitors to the prison had to wear a badge identifying themselves as such. Working with prison officials, the DEA conducted the authorized surveillance of the conversations in the Visitor Area by placing an electronic eavesdropping device (the "bug") inside the badge given to Hoover's visitors. This enabled the DEA to listen to Hoover's communications with Shell and his other GD visitors, no matter where in the Visitor Area they occurred. The bug turned up a wealth of information, leading to a forty-two- count indictment against Hoover, Shell, and various other GD leaders for their involvement in the gang's drug activities.

Before trial, Shell filed a motion to suppress, raising a variety of challenges to the Title III application and warrant.2 The district court denied the motion. Shell then went to trial and was convicted, and we affirmed. See Hoover, 246 F.3d at 1063.

In 2003, Shell filed a timely motion under 28 U.S.C. § 2255 asserting that the bug in the badge amounted to a Fourth Amendment violation and that his counsel was constitutionally ineffective for not raising this argument. The district court denied this motion. We subsequently granted a certificate of appeal ability on three issues: "Whether trial and appellate counsel were ineffective for failing to argue that (1) the intercepted conversations were obtained in violation of the Fourth Amendment; (2) the trial court erred when it admitted intercepted conversations because the court order did not specify where the communications would be intercepted; and (3) the court order was void because the government deliberately omitted material information regarding the method of interception when it asked for authorization, and the judge would not have authorized the surveillance if he had known the method."

II.

We review the...

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