703 F.3d 976 (7th Cir. 2012), 11-2546, United States v. Moreland

Docket Nº:11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 11-3146, 11-3319, 11-3321, 11-3367.
Citation:703 F.3d 976
Opinion Judge:POSNER, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jwuan L. MORELAND, Antrio B. Hammond, Wesley S. Hammond, Susie A. Smith, Herbert D. Phipps, David J. Pitts, Bradley S. Shelton, Michael D. Weir, and Timothy Bailey, Defendants-Appellants.
Attorney:Bradley A. Blackington (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee United States of America. Belle T. Choate (argued), Attorney, Choate & Haith, Indianapolis, IN, for Defendant-Appellant Jwuan L. Moreland. Michael J. Donahoe (argued), Attorne...
Judge Panel:Before POSNER, ROVNER, and SYKES, Circuit Judges.
Case Date:December 03, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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703 F.3d 976 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,


Jwuan L. MORELAND, Antrio B. Hammond, Wesley S. Hammond, Susie A. Smith, Herbert D. Phipps, David J. Pitts, Bradley S. Shelton, Michael D. Weir, and Timothy Bailey, Defendants-Appellants.

Nos. 11-2546, 11-2552, 11-2632, 11-2633, 11-2696, 11-3146, 11-3319, 11-3321, 11-3367.

United States Court of Appeals, Seventh Circuit.

December 3, 2012

Argued Sept. 28, 2012.

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Bradley A. Blackington (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee United States of America.

Belle T. Choate (argued), Attorney, Choate & Haith, Indianapolis, IN, for Defendant-Appellant Jwuan L. Moreland.

Michael J. Donahoe (argued), Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant

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Antrio D. Hammond, also known as Hard Rock.

Jack F. Crawford (argued), Attorney, Crawford & Devane, Indianapolis, IN, for Defendant-Appellant Wesley S. Hammond.

John A. Kesler, II, Attorney, Kesler & Kesler, Terre Haute, IN, for Defendant-Appellant Susie Annette Smith.

Kenneth Lawrence Riggins (argued), Attorney, Indianapolis, IN, for Defendant-Appellant Herbert D. Phipps.

Jessie A. Cook, Attorney, Terre Haute, IN, for Defendant-Appellant David J. Pitts.

Laura Paul (argued), Attorney, Laura Paul, PC, Terre Haute, IN, for Defendant-Appellant Bradley S. Shelton.

Daniel P. Albers (argued), Attorney, Barnes & Thornburg LLP, Chicago, IL, for Defendant-Appellant Michael D. Weir.

Jeffrey A. Baldwin, Attorney, Voyles, Zann, Paul, Hogan & Merriman, Indianapolis, IN, for Defendant-Appellant Timothy Bailey.

Before POSNER, ROVNER, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

The nine defendants were charged with conspiracy to distribute large quantities of methamphetamine and marijuana (two of them were charged in addition with being felons in possession of firearms). All were convicted by a jury and given long prison sentences: Moreland 110 months, Smith 151, Bailey 216, Pitts 420, and the others life. Only one defendant, Shelton, was charged with a substantive drug offense; this is a further illustration, if any is needed, that conspiracy is indeed the prosecutors' darling. We listed the reasons in United States v. Nunez, 673 F.3d 661, 662-64 (7th Cir.2012); see also Krulewitch v. United States, 336 U.S. 440, 449, 457, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring); United States v. Jones, 674 F.3d 88, 91 and n. 1 (1st Cir.2012); United States v. Boidi, 568 F.3d 24, 29 (1st Cir.2009); 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(b), pp. 256-65 (2d ed.2003)— though we add that a prosecutor's putting all his eggs in the conspiracy basket can be a risky tactic, as we'll see.

The details of the conspiracy are not important, so we can proceed to the issues raised by the appellants. We begin with the issues common to all of them. The first concerns the government's use of wiretap evidence. That is permissible only if the government can show that wiretapping was necessary to its investigation because (so far as relates to this case) other investigative methods, such as the use of undercover agents and informants, telephone records, pen registers, trap-and-trace devices, the grand jury, physical searches, and physical surveillance, would not yield essential evidence. 18 U.S.C. § 2518(1)(c). The government argues that without the wiretaps the extent of the conspiracy— 28 persons were charged ultimately— could not have been proved and the leaders, who did not deal face to face with the government's informants or with the members of the conspiracy whom the government was able to identify, could not have been identified. See United States v. Ceballos, 302 F.3d 679, 683-84 (7th Cir.2002); United States v. Zambrana, 841 F.2d 1320, 1331 (7th Cir.1988); United States v. Foy, 641 F.3d 455, 464-65 (10th Cir.2011); United States v. Becton, 601 F.3d 588, 596 (D.C.Cir.2010); United States v. Jackson, 345 F.3d 638, 644-45 (8th Cir.2003); United States v. Rivera-Rosario, 300 F.3d 1, 19 (1st Cir.2002). The government supported its argument with detailed affidavits. The defendants asked for an evidentiary hearing, but the judge properly refused because they were unable to specify any assertion in the government's

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affidavits that they could contest with evidence.

The defendants complain about the judge's having in advance of voir dire excused several potential jurors who had notified the court that because of vacation plans, business commitments, or employment obligations it would be a hardship for them to serve on a jury in a case that might take a long time to try. In fact the trial lasted three weeks. Prospective jurors were told at the voir dire that it might last as long as five weeks, but the jurors who before the voir dire asked to be excused had been told only that they might be summoned for jury duty at some time during the month in which they would be on call. See United States District Court for the Southern District of Indiana, " Federal Jury Service Information: Stage 2: Notice of Jury Service," www. insd. uscourts. gov/ Jury (visited Oct. 31, 2012).

Federal criminal defendants are entitled to be tried by a jury " selected at random from a fair cross section of the community," 28 U.S.C. § 1861, a principle derived by interpretation of the Sixth Amendment's requirement of an impartial jury. Berghuis v. Smith, 559 U.S. 314, 130 S.Ct. 1382, 1387, 176 L.Ed.2d 249 (2010). The defendants argue that excusing persons who have vacation plans, business commitments, or employment demands tilts the jury's composition away from the more affluent members of the community and so makes jury selection unrepresentative. One doubts that criminal defendants actually want to be judged by members of the upper middle class, but in any event, without some evidence of systematic exclusion of some definable element of society (such as a racial or ethnic group, but it could also be a group defined by income or social class), the cross-section argument fails. Id. at 1388; Duren v. Missouri, 439 U.S. 357, 364-66, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); United States v. Neighbors, 590 F.3d 485, 492 (7th Cir.2009). Otherwise voir dire would become an interminable sociological inquiry into how closely the social status of the jury matched that of the adult population as a whole from which the jurors had been drawn.

The defendants further argue that excluding busy people from a jury violates the Jury Selection and Service Act, 28 U.S.C. § 1862, which forbids exclusion from juries on the basis of " economic status." The concern appears to have been with exclusion of the poor, H.R.Rep. No. 90-1076, 90th Cong., 2d Sess. (1968), reprinted at 1968 U.S.C.C.A.N. 1792, 1798, which is the opposite of the complaint here; and anyway excusing a prospective juror because of commitments is not exclusion on account of economic status, though there may be a correlation between affluence and commitments that are incompatible with jury duty, depending on the expected length of the trial. In any event, the defendants forfeited the point by failing to comply with the procedures for challenging compliance with the Act. See 28 U.S.C. § 1867; United States v. Phillips, 239 F.3d 829, 840-41 (7th Cir.2001).

The defendants also complain that excusing prospective jurors before the trial violated Fed.R.Crim.P. 43(a)(2), which entitles the defendant to be present " at every trial stage, including jury impanelment." But issuance of jury summonses, submission of responses to those summonses in which the responders asked to be excused, and action on those submissions— all before the jury venire is created and the members of the venire seated in the courtroom when the trial is called— precede jury impanelment. Gomez v. United States, 490 U.S. 858, 874, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); United States v. Greer, 285 F.3d 158, 167-68 (2d Cir.2002); Henderson v. Dugger, 925 F.2d 1309, 1316 (11th Cir.1991); cf.

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Cohen v. Senkowski, 290 F.3d 485, 490 (2d Cir.2002). Practicality dictates this conclusion. For what if a recipient of a jury summons replied to the court's jury administrator that he was hospitalized awaiting major surgery? Would the administrator's excusing him from jury service violate Rule 43? Anyway " a general qualification of the jury is not a ‘ critical stage’ in the proceedings. The court was merely deciding which jurors were to be excused for age, hardship, etc. It is difficult to see what the defendant could have added to this proceeding." Henderson v. Dugger, supra, 925 F.2d at 1316.

Another issue common to all the defendants involves expert testimony. A law enforcement officer was permitted to testify as both a lay witness and an expert witness, and the defendants complain that this was improper. The witness, who was the DEA agent in charge of the investigation of the conspiracy, was called to testify about the meaning of code words used in intercepted phone conversations of the defendants— code words that he had learned the meaning of in the course of investigating this very drug conspiracy and code words commonly used in the drug trade that he had learned the meaning of in other investigations. About the first type of code word he was testifying from personal knowledge obtained in the investigation, and thus as a lay witness, Fed.R.Evid. 701, while about the second type he was testifying as an expert on drug codes, his expertise having derived from his involvement in other drug investigations. Fed.R.Evid...

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