United States v. Cruse, s. 13–2929

Citation805 F.3d 795
Decision Date03 November 2015
Docket NumberNos. 13–2929,14–2297.,13–3008,s. 13–2929
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Demettris CRUSE, Daniel McClain, and Charles Henderson, Defendants–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Bridget J. Domaszek, Attorney, Margaret Blackwood Honrath, Attorney, Office of the United States Attorney, Milwaukee, WI, for PlaintiffAppellee.

Howard Michael Kaplan, Attorney, Kirkland & Ellis LLP, Chicago, IL, for DefendantsAppellants.

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

Opinion

SYKES, Circuit Judge.

Demettris Cruse, Daniel McClain, Charles Henderson, and eight others were indicted for their involvement in a long-running conspiracy to distribute controlled substances in Milwaukee. The indictment centered on the activities of two street gangs that controlled the crack-cocaine trade in adjacent neighborhoods on the city's northwest side. The eight coconspirators not party to this appeal pleaded guilty and agreed to cooperate with the government.

Henderson also negotiated a plea bargain. He agreed to plead guilty to the conspiracy charge but only to a subset of the drugs listed in the indictment (that is, crack and marijuana but not powder cocaine). In exchange the government would recommend the mandatory minimum sentence. Henderson pleaded guilty pursuant to this agreement and the court imposed the recommended sentence. But the government neglected to file an information narrowing the charged drug types as contemplated by the plea agreement. Henderson argues that this mistake undermines the validity of his plea. We disagree. Henderson understood the charge against him and the possible penalty, and the judgment conforms precisely to the terms of the agreement. We see no reason to unwind the plea.

A jury found Cruse and McClain guilty. They argue that the trial was contaminated by a host of errors: two Batson violations, improperly admitted hearsay, and two faulty jury instructions (one about the distinction between a buyer-seller relationship and a conspiracy, and the other about the scope of coconspirator liability). McClain also claims that the evidence was insufficient to convict him. Only one of these arguments merits relief, and only with respect to one: the absence of a buyer-seller instruction violated Cruse's right to a fair trial, so we vacate his conviction and remand for retrial. The judgments against Henderson and McClain are affirmed.

I. Background

By the mid–1990s, two gangs controlled the drug trade in and near the Westlawn housing project on Milwaukee's northwest side. The Westlawn gang operated in the housing project itself, and Six Trey controlled the territory in the nearby neighborhood around the intersection of 63rd Street and West Bobolink Avenue. The two gangs operated just a few blocks apart and were generally—though not always—on friendly terms.

Both gangs operated similarly. Six Trey's membership consisted primarily of people who had grown up together near 63rd and Bobolink. The gang had no formal structure, but it held meetings during which its members would discuss who would sell drugs and also mete out punishment (usually in the form of beatings) to those who broke the gang's norms against cheating and stealing. Six Trey also maintained tight control over its territory; if an outsider encroached and tried to sell drugs, Six Trey members would page each other using a distress code, and when reinforcements arrived, they'd beat and rob the intruder. The benefits of membership included money, protection from rival gangs, and the ability to sell drugs in Six Trey's territory.

Most of Westlawn's members had also known each other since childhood (we was all like brothers,” according to one Westlawn member). The gang had no formal leadership hierarchy, but different members had different roles, such as supplying drugs, delivering drugs, providing security, and organizing gambling. Outsiders were robbed and beaten if they tried to sell drugs in Westlawn's territory. The benefits of membership included protection, access to drugs, tips about police activity, and the assurance that members wouldn't snitch on one another (though it was acceptable to cooperate with the police on non-gang-related matters). The gang also gave its members things like shoes and TVs, and supplied money to incarcerated members.

The Drug Enforcement Administration (“DEA”) began investigating Westlawn and Six Trey in 2004. In 2009, 18 gang members were indicted on drug-conspiracy charges. Two years later on September 7, 2011, a federal grand jury returned a second indictment against 11 additional gang members, including Cruse, McClain, and Henderson. This indictment alleged a single count of conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also alleged that the offense involved at least 5 kilograms of powder cocaine, 280 grams of crack cocaine, and an unspecified amount of marijuana. The charged quantities of powder and crack cocaine were each independently sufficient to trigger a ten-year mandatory minimum sentence. See id. § 841(b)(1)(A)(ii)-(iii).

The eight coconspirators not party to this appeal pleaded guilty and agreed to cooperate with the government. Henderson, a relatively low-level crack dealer affiliated with Westlawn, also pleaded guilty. On appeal he challenges the validity of his plea; we'll provide the relevant background for his argument later in this opinion.

The case against Cruse and McClain proceeded to jury trial. The government's case rested primarily on the testimony of seven cooperating gang members: Shywan Mathis, Willie Mohomes, Michael Riley, Aaron Seymore, and Corey Winters, all of whom self-identified as members of Westlawn; Kendall Burton, a member of Six Trey who also sold drugs in Westlawn; and Kenyounta Harvester, who didn't consider himself a member of either gang but sold large quantities of drugs to their members. All of these witnesses except Mathis and Harvester were charged in the 2009 indictment and pleaded guilty. Mathis was charged in the 2011 indictment (along with Cruse and McClain) and pleaded guilty. Harvester pleaded guilty to a separate conspiracy charge.

The witnesses described Cruse as a mid-level dealer who worked in Westlawn and McClain as a member of Six Trey and a high-level supplier of drugs in both the Six Trey and Westlawn territories. The jury found both guilty and in a special verdict found that the conspiracy involved at least 5 kilograms of powder cocaine or 280 grams of crack. Cruse was sentenced to 240 months, the mandatory minimum. McClain was sentenced to 252 months.

II. Discussion

Henderson asks us to vacate his conviction and remand to permit him to withdraw his guilty plea. McClain and Cruse raise several common claims of trial error and a few individual arguments as well. We'll begin with Henderson's appeal and then move to the arguments raised by McClain and Cruse.

A. Henderson's Appeal

For about ten years prior to his arrest, Henderson sold drugs in Westlawn, mostly “dime bags” ($10 packets) of crack cocaine. In a written plea agreement, Henderson agreed to plead guilty to the conspiracy charge, but only with respect to two of the three drug types alleged in the indictment. He would admit to conspiring to distribute at least 280 grams of crack and an indeterminate amount of marijuana, but not powder cocaine.

To implement this agreement, the government agreed to file an information identical to the September 2011 indictment except that it would eliminate the reference to 5 kilograms of powder cocaine. In exchange for Henderson's guilty plea, the government agreed to recommend the ten-year minimum sentence required by § 841(b)(1)(A) and oppose any guidelines sentence enhancements, most notably a two-level increase for Henderson's possession of a firearm. See U.S.S.G. § 2D1.1(b)(1) (2011).

Henderson pleaded guilty pursuant to this agreement, and at sentencing the judge accepted the government's recommendation and imposed the minimum sentence of ten years. The judge also granted the government's motion to dismiss the September 2011 indictment. Before the court entered judgment, however, the parties discovered that the prosecutor had neglected to file an information narrowing the charged drug types as contemplated by the plea agreement. Henderson moved to withdraw his guilty plea. Alternatively, he sought specific performance of the plea agreement.

The judge declined to allow plea withdrawal, noting that a guilty plea generally may not be withdrawn after sentence is imposed. See Fed.R.Crim.P. 11(e) (“After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.”). Although the court had not yet entered judgment, [o]ral pronouncement of the sentence triggers the bar” under Rule 11(e), United States v. Vinyard, 539 F.3d 589, 595 (7th Cir.2008), so the judge concluded that he could not set aside the plea.

Instead, to remedy the obvious mistake, the judge vacated the dismissal of the original indictment and ordered the clerk to enter judgment adjudicating Henderson guilty of conspiracy as charged in count one, but only with respect to 280 grams of crack and an unspecified amount of marijuana, not the 5 kilos of powder cocaine listed in the indictment. The resulting judgment thus conforms precisely to the terms of the plea agreement and to Henderson's guilty plea.

The judge acknowledged that this remedy created a variance between the indictment and the judgment. A variance occurs when the proven elements of an offense are “narrower than the full scope of the charge in the sense that the charge states all and more than what is necessary to identify the offense and sufficient evidence is not introduced to support each of the excess allegations.” United States v. Willoughby, 27 F.3d 263, 265 (...

To continue reading

Request your trial
72 cases
  • United States v. Jones
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 22, 2022
  • United States v. Ellis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 24, 2017
    ...did so. So, at the very least, Ellis stands properly convicted under 21 U.S.C. § 841(a)(1), (b)(1)(C).9 See United States v. Cruse , 805 F.3d 795, 817 (7th Cir. 2015) (concluding that "drug quantity is not an element of a drug conspiracy under § 841(a)(1)"); United States v. Daniels , 723 F......
  • United States v. Elizondo
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 21, 2021
    ...to its credibility determinations. See United States v. Lovies , 16 F.4th 493, 500 (7th Cir. 2021) (citing United States v. Cruse , 805 F.3d 795, 806 (7th Cir. 2015) ; United States v. Rutledge , 648 F.3d 555, 558 (7th Cir. 2011) ). "Deference is necessary because a reviewing court, which a......
  • United States v. Wheat
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 12, 2021
    ...an instruction here anyway). See, e.g. , United States v. Musick , 291 F. App'x 706, 729–30 (6th Cir. 2008) ; cf. United States v. Cruse , 805 F.3d 795, 814 (7th Cir. 2015). But we cannot ignore this buyer-seller rule when we ask whether there was enough evidence for all essential elements ......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT