U.S. v. Hernandez
| Citation | 330 F.3d 964 |
| Decision Date | 03 June 2003 |
| Docket Number | No. 99-2505.,No. 99-2983.,No. 99-2514.,No. 01-1690.,No. 99-2570.,No. 99-2763.,No. 99-2299.,No. 99-2598.,99-2299.,99-2505.,99-2514.,99-2570.,99-2598.,99-2763.,99-2983.,01-1690. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Abraham HERNANDEZ, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Madeleine S. Murphy (argued), Office of U.S. Attorney, Chicago, IL, for U.S.
Nathan Diamond-Falk (argued), Chicago, IL, for Abraham Hernandez.
Steven Shobat (argued), Ronald J. Clark, Clark & Associates, Chicago, IL, for Orlando Diaz.
Steven Shobat (argued), Richard H. Parsons, Office of Federal Public Defender, Peoria, IL, for Wilfredo Hernandez.
Douglas P. Roller (argued), Clayton, MO, for Sandy Garvin.
Antonio Rosario, Bradford, PA, pro se.
Steven Shobat (argued), John A. Meyer, Chicago, IL, for Roosevelt McMullen.
Steven Shobat (argued), Chicago, IL, for Samuel Santana.
Nathaniel Cade, Jr., Michael Best & Friedrich, Milwaukee, WI, for Carl Stevenson.
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
In August 1995, the FBI, with the help of the Chicago Police Department, began an investigation of a Chicago street gang known as the Project Latin Kings. The authorities suspected this gang, a subgroup of the much larger Latin Kings gang, of operating a drug ring in the Chicago Housing Authority's Lathrop Homes. The investigation lasted over two years and resulted in the collection of a substantial amount of evidence. As part of the investigation, several officers made undercover drug buys from members of the gang and conducted surveillance of the gang. The investigation also included the installation of a secret surveillance camera in a building down the street from where the Project Kings did much of their drug business. Over a six-month period, this camera produced a significant amount of video footage of gang members making drug sales. Further, three Project King members agreed to cooperate with the government investigation, providing valuable information about gang activities. Two of these informants wore body recorders when they went undercover, making audio tapes of gang meetings at which members discussed their narcotics business.
Based on the information obtained in this extensive investigation, on September 18, 1997, a federal grand jury returned a thirty-four count indictment charging twenty-one individuals with various drug offenses. Count 1 charged all defendants with conspiring to distribute cocaine base in violation of 21 U.S.C. § 846. Counts 2 and 3 charged five of the defendants with using minors in a drug operation in violation of 21 U.S.C. § 861. The remaining counts charged various individuals with substantive distribution offenses in violation of 21 U.S.C. § 841(a)(1). Several of the defendants pleaded guilty and cooperated with the government in the prosecution of the remaining defendants. In all, eight defendants went to trial: Antonio Rosario, Samuel Santana, Wilfredo Hernandez, Carl Stevenson, Roosevelt McMullen, Orlando Diaz, Abraham Hernandez, and Sandy Garvin.
At trial, the government produced a substantial amount of evidence explaining how the drug conspiracy worked. Former gang members, cooperating with the government, testified that the gang used force or the threat of force to keep anyone other than members of the Project Kings from selling drugs in the Lathrop Homes. This allowed the gang members to sell drugs individually without competition from non-Project Kings. Further, they testified that on certain days, called "Nation Days," all members of the gang were required to sell crack cocaine and remit the proceeds to the gang's treasury. The profits from Nation Days were used to provide money to gang members in custody, to buy additional drugs and guns, to pay for gang apparel, and to fund parties and trips for gang members. Juan Hernandez, the gang's treasurer and a government witness, estimated that the Project Kings scheduled a Nation Day once or twice a week, and that the sales of cocaine on these days could produce three to four thousand dollars. In addition to this testimony, the video and audio tapes from the FBI investigation were played to the jury, allowing them to see drug transactions taking place and to hear the meetings at which the defendants planned their business. The government also produced ledgers that detailed the assignments that members were to perform on Nation Days. Also, officers and agents who participated in the investigation testified about their undercover dealings and their surveillance of the gang's drug activities.
At trial, the government introduced testimony explaining the role that the eight defendants on trial played in the drug ring. In 1995, Antonio Rosario was elected to the head position in the gang's hierarchy, called the "Inca." As Inca, he was responsible for appointing the other officers and for ensuring that the treasurer and the chief enforcers were doing their jobs. He also led "demos," gang meetings at which Nation Days were planned and other gang business was discussed. Samuel Santana held the position of "Cacique," the second in command. He occasionally led meetings and set Nation Days, and he attended demos to assist in planning Nation Days. Wilfredo Hernandez and Carl Stevenson were the gang's chief enforcers. They organized the security and lookouts on Nation Days, and they enforced the gang's rules by administering "punishments" for violations. Orlando Diaz, Roosevelt McMullen, and Abraham Hernandez worked as street sellers for the gang and performed security as well. Sandy Garvin was an older member of the Project Kings, a "Retired King." Because of his age he was not required to participate in Nation Days. The gang did, however, permit Garvin to sell drugs for his own benefit in the Lathrop Homes.
Following a four-week trial, the jury found each defendant guilty on at least some of the counts and the judge gave the defendants varying sentences. Rosario was found guilty as charged in Counts 1, 2, 3, and 20, and sentenced to 360 months imprisonment. The jury found Santana guilty as charged in Counts 1, 2, 3, 4, and 10, and he was sentenced to 240 months imprisonment. Wilfredo Hernandez was found guilty as charged in Counts 1 and 3, and sentenced to 360 months imprisonment. Stevenson was found guilty as charged in Counts 1, 3, 18, 19 and 21, and sentenced to 292 months imprisonment. The jury found Diaz guilty as charged in Count 1 of the indictment, and the judge sentenced him to 240 months imprisonment. McMullen was also found guilty of Count 1 and sentenced to 141 months imprisonment. Abraham Hernandez was found guilty of Count 1, but acquitted of Counts 23 and 24; he was sentenced to 151 months imprisonment. The jury found Garvin guilty as charged in Counts 20, 26, 28, and 31, but acquitted him of the conspiracy charged in Count 1. The judge sentenced Garvin to 262 months imprisonment. These eight defendants now challenge various aspects of their convictions and sentences. Ultimately, we reject all their arguments and affirm the sentences imposed by the district court.
Defendants first argue that they should be granted a new trial because the district court made erroneous rulings regarding the admission of evidence related to drug sales on days other than Nation Days and to incidents of gang violence perpetrated by the Project Kings. We give special deference to a trial judge's evidentiary rulings "because of the trial judge's first-hand exposure to the witnesses and the evidence as a whole, and because of the judge's familiarity with the case and ability to gauge the impact of the evidence in the context of the entire proceeding." United States v. Van Dreel, 155 F.3d 902, 905 (7th Cir.1998). Consequently, we will reverse a decision on admissibility of evidence only if the trial court has "clearly abused its discretion," which typically occurs only "where no reasonable person could take the view adopted by the trial court." United States v. Hughes, 970 F.2d 227, 232 (7th Cir.1992) (quotations omitted). Further, where the alleged error of admission occurred during the trial, as is the case here, we "will grant a new trial only if the error had a substantial influence over the jury, and the result reached was inconsistent with substantial justice." United States v. Walton, 217 F.3d 443, 449 (7th Cir.2000) (quotations omitted). Defendants have not met this burden.
Defendants argue that the district court erred by repeatedly admitting evidence of drug sales that either did not involve any of the defendants on trial or did not occur on Nation Days. This evidence, defendants argue, was outside the scope of the charged conspiracy and therefore irrelevant. Underlying this argument is an assumption that the charged conspiracy was limited to the sale of drugs on Nation Days. The government vigorously challenges this assumption, arguing that the conspiracy charged was much broader.
The language in Count 1 of the indictment charges the defendants with a conspiracy to sell crack cocaine in the Lathrop Homes and to exclude other sellers through the use of violence. While this count does list the sale of narcotics on Nation Days as part of the conspiracy, it does not limit the charge only to those sales.
Defendants contend that, even though the indictment uses broad language, the trial judge ruled that the charged conspiracy related only to Nation Days. Our review of the record, however, reveals no such ruling. Each time an issue related to the scope of the charged conspiracy arose at trial the district judge either delayed ruling on it or admitted evidence of drug deals on non-Nation Days over defendants' relevance objections. The only instance in which the district court...
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