U.S. v. Are

• Decision Date: 30 December 2009
• Docket Number: No. 07-3928. 08-2269.,No. 07-3247.,No. 07-3246.,07-3246.,07-3247.,07-3928. 08-2269.
• Citation: 590 F.3d 499
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oluwadamilola ARE, Antwan Daniels, Jerome Murray and Julius Statham, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

590 F.3d 499

UNITED STATES of America, Plaintiff-Appellee, v. Oluwadamilola ARE, Antwan Daniels, Jerome Murray and Julius Statham, Defendants-Appellants.

No. 07-3246.

No. 07-3247.

No. 07-3928. 08-2269.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2009.

Decided December 30, 2009.

Halley Guren (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Marc W. Martin (argued), Marc Martin, LTD., Chicago, IL, for Defendant-Appellant, Oluwadamilola Are.

David S. Rosenbloom, Samantha L. Bell (argued), McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant, Antwan Daniels.

Andrew J. McGowen (argued), Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant, Jerome Murray.

Douglas J. Rathe (argued), Wilmette, IL, for Defendant-Appellant, Julius Statham.

Before POSNER, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

This is a drug conspiracy case involving multiple defendants, twenty-seven counts, a variety of illegal drugs, guns, and the use of a telephone to facilitate a drug conspiracy. The drug activity centered around the "Four Corner Hustlers" gang on the south side of Chicago, an organization that has been mentioned in several opinions of this court over the last decade. See, e.g., United States v. Longstreet, 567 F.3d 911 (7th Cir.), cert. denied, 130 S.Ct. 652, 78 U.S.L.W. 3294 (U.S. Nov. 16, 2009) (No. 09-7065); United States v. Haynie, 179 F.3d 1048 (7th Cir.1999). Jerome Murray (the "Chief" of the gang) and Julius Statham pled guilty; Antwan Daniels and Oluwadamilola Are were tried by a jury. The defendants-appellants challenge several pretrial rulings and the admission of law enforcement expert evidence on the meaning of coded language. They also raise several sentencing issues. In addition, Are claims a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The number of issues raised results in a lengthy opinion, but ultimately we affirm. Our review of the record leads us to the conclusion that, by and large, the district court handled this case very well.

I. Background

Jerome Murray was the chief of the "Four Corner Hustlers" gang on the south side of Chicago. He was convicted of murder in 1987. Following his release from prison in late 2001, he assumed the leadership role in the gang since other gang members looked up to him because of, among other things, his prior conviction. The Four Corner Hustlers were heavily involved in trafficking heroin, cocaine, and crack cocaine in the Chicago area. Murray bought wholesale quantities of the drugs to sell to customers, including other gang members, and his customers, in turn, distributed the drugs to their own customers. Oluwadamilola Are and Julius Statham supplied Murray with heroin and cocaine, respectively. Antwan Daniels ("Sko") bought heroin directly from Are, through another person, with Murray's assistance. One such transaction occurred on January 26, 2005, when Are supplied Daniels with about 50 grams of heroin through a person identified as "Rocco" (aka "Heavy" and "Lil' Morocco").

Prior to that, on January 25, Murray was recorded in a telephone call asking Daniels if he wanted "$50, man for that or a $100?" Murray immediately called Are, asking to "borrow fifty dollars," and explaining that he had "just hollered ... at Sko [Daniels]." Are agreed and, half an hour later, he instructed Murray to call an individual named "Heavy" or "Lil' Morocco," and Murray did. In subsequent telephone calls, Murray arranged an in-person meeting between Daniels and Rocco. Law enforcement agents were conducting surveillance and observed Murray enter an apartment building and later meet with Daniels and another person at a convenience store.

The next day, January 26, Murray asked Are if he had "call[ed] back, uh, Sko?" Murray later spoke with Daniels, who talked Murray down to a price of $3,000 for the 50 grams of heroin. Murray then instructed Daniels to "hit Little Morocco...." Rocco subsequently confirmed with Murray the quantity that Daniels was to get, asking if "this is twenty-five dollars," and Murray told Rocco to "give him, uh, fifty dollars." Later that evening while under surveillance, Rocco met with Daniels. Shortly after that meeting, law enforcement conducted a traffic stop of Daniels and seized 49.6 grams of heroin. Not wanting to jeopardize their investigation, the officers did not arrest Daniels but let him go.

After the seizure, Daniels called Rocco, who then called Murray. Murray asked Rocco if he had "holler[ed] at Olewah [Are]?" Rocco said, "no," and Murray reassured him that there "ain't nothin' to, uh, panic about." Murray made some calls and then he, Rocco, and an unidentified male met at a McDonald's. They were later joined by Are. Ronald Kimble, a Chicago Police Department ("CPD") task force officer, was posing as a homeless person and overheard some of the conversation between Murray, Rocco, Are, and the unidentified male. Kimble heard Murray say "they got the shit," "that that was the cost of doing business," and "better him than me." Kimble thought it appeared that Are lectured Rocco and the unidentified male. Kimble testified that Are was animated and instructed the others on how to evade the police by changing meeting locations and erratic driving. According to Kimble, Murray appeared disinterested, walking away, pacing up and down, and looking out the window. Kimble also said that Are's instructions were directed at the other two men.

Both Murray and Statham pled guilty pursuant to written plea agreements to Count One of the indictment, which charged them, Are, Daniels, and others with a criminal drug conspiracy in violation of 21 U.S.C. § 846. Are and Daniels were tried by a jury. At trial, the government introduced sixty-one recorded calls in its case-in-chief. The recorded conversations were between Jerome Murray and others including Are, Daniels, Murray Brown, Rocco, and Catherine Fauntleroy (Jerome Murray's wife).

Following several days of evidence, Are and Daniels were convicted as charged. Are was found guilty of three counts: the drug conspiracy charged in Count One, distribution of heroin in violation of 21 U.S.C. § 841(a)(1), and knowingly and intentionally using a telephone to facilitate the commission of the drug conspiracy in violation of 21 U.S.C. § 843(b). Daniels was convicted of five counts: the drug conspiracy charged in Count One, possession with intent to distribute heroin in violation of § 841(a)(1), possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1), and two counts of knowingly and intentionally using a telephone to facilitate the commission of the drug conspiracy in violation of § 843(b). They filed post-trial motions for judgment of acquittal or new trial, all of which were unsuccessful. The district court sentenced all four defendants to prison: Are received 96 months, Daniels 180 months, Murray 262 months, and Statham 125 months. These appeals followed and are consolidated for disposition.

II. Discussion

We first address the challenges to the district court's denial of two motions to suppress, followed by Are's claims under Brady and Napue, and then Are's and Daniel's challenge to the admissibility of expert testimony on the meaning of code words. After that we will turn to the various sentencing challenges. Additional factual background will be provided as necessary along the way.

A. Daniels' Motion to Suppress

Daniels contends that the district court erred in denying his motion to suppress both his post-arrest statement about the location of a gun and the gun itself. We review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Marrocco, 578 F.3d 627, 632 (7th Cir.2009).

Background

On July 19, 2005, FBI agents and two CPD officers went to Daniels' Country Club Hills home at 6:00 A.M. to execute a warrant for his arrest. They were aware that Daniels was being arrested for a drug conspiracy and that he had several prior arrests for drug and weapons offenses. FBI Agent Helen Dunn led the arrest team of the nine officers and agents. She knocked on Daniels' door and was greeted and allowed to enter by his wife, who directed them to the master bedroom. On the way there, the team conducted a brief protective sweep of the house, finding two young children in another bedroom. The children were brought, along with their mother, to the dining/living room area. Daniels was handcuffed in the bedroom and taken to the living room at about 6:05 A.M.

Before he was advised of his Miranda rights, an FBI agent asked him whether there were any weapons in the house, to which he replied that there was an AK-47 under the dresser in the bedroom. A CPD officer and FBI agents immediately went to the bedroom to look for the gun, but could not locate it under the dresser. An officer went back to the living room to report that the AK-47 could not be found. Upon hearing that, Daniels snickered and said that he must have gotten rid of it. Meanwhile, the officers continued to search the bedroom, eventually finding the AK-47 assault rifle on the floor in a nearby closet. The search ended as soon as the gun was located. At approximately 6:10 A.M., Daniels was placed in an FBI car.

Daniels moved to suppress his post-arrest statement and the AK-47 firearm found in his residence. After holding an extended suppression hearing, the district court denied the suppression motion. The court concluded that the search was justified by exigent circumstances, specifically that Daniels' wife and children were present in the house and potentially could have retrieved the gun. The court also determined that the gun would have been inevitably discovered anyway, based on Daniels' statement. The court allowed the statement under the "public safety"...