U.S. v. Duff, s. 94-4002

• Citation: 76 F.3d 122
• Decision Date: 18 March 1996
• Docket Number: Nos. 94-4002,95-1241 and 95-1243,95-1158,s. 94-4002
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony DUFF, Mason P. Peck, Thomas Lee Ridley III, and Willi J. Hill, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 122

76 F.3d 122

UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony DUFF, Mason P. Peck, Thomas Lee Ridley III and Willi J. Hill, Defendants-Appellants.

Nos. 94-4002, 95-1158, 95-1241 and 95-1243.

United States Court of Appeals Seventh Circuit.

Argued Nov. 29, 1995.

Decided Jan. 29, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied March

18, 1996.

John Earl Dowd, Melanie C. Conour (argued), Office of the United States Attorney, Indianapolis, IN, for United States.

Martin E. Solomon (argued), Solomon & Solomon, Indianapolis, IN, for Michael Duff.

Mark Inman (argued), Indianapolis, IN, for Mason P. Peck.

Kevin McShane (argued), Ann Gordon, McShane & Gordon, Indianapolis, IN, for Thomas L. Ridley, III.

R. Scott McFarland (argued), Muncie, IN, for Willi J. Hill.

Before EASTERBROOK, RIPPLE, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

But for the holding of Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987), this would be a brief opinion. The only difficult issues concern defendants' convictions for conspiracy to distribute crack cocaine. Because conspiracy convictions do not affect the sentence of persons convicted, as these were, of substantive offenses, U.S.S.G. § 3D1.2(b) and Application Note 4, the issues we must confront are essentially irrelevant to the outcome. Conspiracy charges do not affect the trial, either, except to complicate and prolong it. The coconspirator exception to the hearsay rule does not depend on an indictment for conspiracy, see United States v. Wozniak, 781 F.2d 95 (7th Cir.1985), and the prosecution has not argued substantive accountability under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Still, every conviction leads to a $50 special assessment, which under Ray prevents us from invoking the concurrent sentence doctrine. All four appellants are proceeding as paupers, so collection of the $50 is unlikely. But here we are: the prosecution has invested tens of thousands of dollars to obtain the conspiracy convictions; it has paid defense counsel to try to thwart that objective; and now we are grappling with some thorny issues to determine whether the $50 assessments stand. All to what end? The prosecutor could not answer that question at oral argument, and we cannot think of a good reason. Time and money invested in obtaining these pointless conspiracy convictions allowed other offenders to avoid prosecution and punishment. (All United States Attorneys often decline prosecution because of budget and personnel constraints.) So we trudge on, but with grave doubt that public resources have been wisely deployed.

Thomas Lee Ridley III, ran a cocaine distribution network in Indianapolis, southern Indiana, and adjacent parts of Kentucky, including Louisville. Seventeen people were indicted. Seven of these pleaded guilty and the others were tried in two groups of five. Three among those who pleaded guilty testified for the prosecution. Some unindicted coconspirators plus an infiltrator, Anthony Watkins, also testified to the details of the operations. Ridley and his father (Thomas Ridley, Jr.), plus Willi Hill, Michael Duff, and Mason Peck went to trial first. All were convicted. Although the trial lasted a month, the jury convicted all defendants on all counts within hours. Thomas Ridley, Jr., died before sentencing; the surviving four received stiff sentences: Ridley life, Hill 500 months, Peck 400 months, and Duff 324 months. Most of the reasons they advance why we should reverse these judgments are implausible. They contend, for example, that the venire had too few blacks: only 3 among the 68 prospective jurors (= 4.4%). But there is no requirement that the venire (or for that matter the petit jury) mirror the general population. The constitutional requirement is that juries be drawn "from a source fairly representative of the community." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975). Some panels will have an unusually low (or high) proportion of one group or another. (Call this the "law of small numbers," a corollary to the law of large numbers.) Because "[d]efendants are not entitled to a jury of any particular composition", ibid., the makeup of any given venire is not significant, provided all rules for selection have been observed. See also Holland v. Illinois, 493 U.S. 474, 482-83, 110 S.Ct. 803, 808-09, 107 L.Ed.2d 905 (1990). The Jury Selection and Service Act, 28 U.S.C. §§ 1861-78, gives accused persons ample means to discover whether the full jury panel represents the community from which it is drawn and whether the court is using proper procedures to draw a venire from the panel. Defendants did not use that opportunity and cannot complain about the venire in this case. As for other subjects: the evidence is overwhelming, the judge did not abuse his discretion in denying Hill's motion for severance, see Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), and the sentences are authorized under the Guidelines.

The conspiracy charge leads to problems, however. Drug dealers do not record their undertakings with the care of securities lawyers, so it is always possible to debate who agreed to do what, and with whom. People who participate in the drug operations on Monday may conduct different illegal business on Tuesday (several defendants were members of the "Getto Boys" [sic] street gang in addition to Ridley's drug organization). Many complex criminal operations will be organized into cells, to cut down on the damage one turncoat can do; a particular person may think himself a member of the cell, while the head of several cells will think himself in charge of all. Suppliers may act as one outfit, distributors as another; a chieftain may run both sides of the operation as a single organization. Defendants seeking to make the most of this fog will take their cues from the prosecutor. If the indictment charges many affiliated conspiracies, the defendants will say that there was only one; if the indictment charges a single, comprehensive agreement, the defendants will respond that there were many, with small groups acting merely as suppliers to and customers of each other. This trial followed that pattern. The indictment charged one conspiracy. The defendants denied everything but added that any criminal agreements were more complex, and more numerous, than the prosecution envisaged. They asked the judge to instruct the jury that:

Even if the evidence in the case shows that a defendant was a member of some conspiracy, but that this conspiracy is not the single conspiracy described in the indictment, you must acquit that defendant.

Unless the government proves the existence of the single master conspiracy described in the indictment beyond a reasonable doubt, you must acquit the defendants.

The proposal included much more in the same vein, all taken from Devitt, Blackmar & O'Malley, Federal Jury Practice and Instructions § 28.09 (4th ed. 1990). The district judge declined, remarking that he had refused to give a multiple-conspiracy instruction before, and had been affirmed. United States v. Auerbach, 913 F.2d 407 (7th Cir.1990). That might or might not be a good reason; it depends on why we affirmed. A reason specific to the earlier case (lack of evidence to suggest the existence of multiple conspiracies, for example) might be missing here--for this record could support a conclusion that some defendants were affiliated with interlocking groups possessing some independence rather than with a hierarchical organization having Ridley at the apex. Similarly, an affirmance based on a finding of harmless error would not counsel making the same decision again. As it happens, Auerbach was based on a lack of evidence to support a finding of multiple conspiracies, see 913 F.2d at 416, and therefore does not support the district court's decision. Still, it remains an open question whether the instruction defendants proposed is a good way to tell the jury what it needs to know. It includes the proposition that if the prosecutor fails to prove the existence of (or a given defendant's membership in) the charged conspiracy, the jury should acquit. But other instructions told the jury that. They set out the prosecutor's burden, described the elements of the offenses, and so on. If that is all the Devitt & Blackmar instruction conveys, it is redundant and should be omitted. Jury charges are too long as it is. People comprehend things better when the instructions are short and direct. But defendants did not want the multiple-conspiracies instruction for its value as surplusage; they wanted it because of the implication that if the prosecutor does not prove exactly the conspiracy described in the indictment, the jury should acquit. Judges should not give the jury that advice, because it is wrong. So we held in Wozniak, disapproving language quite similar to what defendants proposed. It is not an optional instruction, good for some cases but not others; it is an erroneous instruction that should not be given.

A defendant who maintains that the evidence shows a conspiracy different from the one charged in the indictment is arguing that there is a variance between pleading and proof. See United States v. Stephenson, 53 F.3d...