U.S. v. Hoover

• Decision Date: 12 April 2001
• Docket Number: 98-3433,98-2820,PLAINTIFF-APPELLEE,98-2915,No. 98-2600,DEFENDANTS-APPELLANTS,98-2600
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA,, v. LARRY HOOVER, TIRENZY WILSON, GREGORY SHELL, JERRY STRAWHORN, ADRIAN BRADD, DARRELL BRANCH, ANDREW HOWARD, AND WILLIAM EDWARDS,,, 98-3840, 99-1377, 99-2142, & 00-2520
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1054

246 F.3d 1054 (7th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. LARRY HOOVER, TIRENZY WILSON, GREGORY SHELL, JERRY STRAWHORN, ADRIAN BRADD, DARRELL BRANCH, ANDREW HOWARD, AND WILLIAM EDWARDS, DEFENDANTS-APPELLANTS.

No. 98-2600, 98-2820, 98-2915, 98-3433,, 98-3840, 99-1377, 99-2142, & 00-2520

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued March 2, 2001

April 12, 2001

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 508--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted] David E. Bindi (argued), Lela D. Johnson, Matthew C. Crowl, Office of the U.S. Attorney, Criminal Division, Chicago, IL, for plaintiff-appellee.

John Cutrone (argued), Anita Rivkin-Carothers, Nathan Diamond-Falk, Chicago, IL, for Larry Hoover, Andrew Howard, William Edwards.

John M. Beal (argued), Chicago, IL, for Tirenzy Wilson.

Alexander M. Salerno (argued), Berwyn, IL, for Gregory Shell.

Steven Shobat (argued), Chicago, IL, for Jerry Strawhorn.

Clarence Tucker (argued), Tucker & Hughes, Detroit, MI, for Adrian Bradd.

Jerry B. Kurz (argued), Hall & Hurz, Glenview, IL, for Darrell Branch.

Before Cudahy, Easterbrook, and Rovner, Circuit Judges.

Easterbrook, Circuit Judge

The Gangster Disciples, a large and vicious street gang, sells great quantities of cocaine, heroin, and other drugs in Chicago. A series of cases has seen the conviction of many members, some of them high in its hierarchy. See United States v. Ray, 238 F.3d 828 (7th Cir. 2001); United States v. Wilson, 237 F.3d 827 (7th Cir. 2001); United States v. Johnson, 223 F.3d 665 (7th Cir. 2000); United States v. Smith, 223 F.3d 554 (7th Cir. 2000); United States v. Jackson, 207 F.3d 910 (7th Cir. 2000), remanded, 121 S. Ct. 376 (2000), decision on remand, 236 F.3d 886 (7th Cir. 2001); United States v. Irwin, 149 F.3d 565 (7th Cir. 1998). Today we deal with eight more members of the organization, including Larry Hoover, its "chairman of the board"; Gregory Shell, Hoover's second in command; Andrew Howard, the third of the gang's "directors"; and two "governors" (Tirenzy Wilson and Jerry Strawhorn). The other three appellants were lower in the hierarchy but still deeply involved in its operations. The five directors and governors, the gang's top echelon, have been convicted of operating a continuing criminal enterprise, 21 U.S.C. sec.848, and sentenced to life imprisonment. Of the remaining three appellants, William Edwards was sentenced to life imprisonment and Adrian Bradd to 292 months' imprisonment for conspiring to distribute drugs, while Darrell Branch was sentenced to 324 months' imprisonment for conspiracy plus money laundering.

Many of the arguments these eight defendants present on appeal have been dealt with by the panels that affirmed the convictions of other gang members. For example, Hoover and his henchmen direct their strongest fire against the prosecution's best evidence--tapes of intercepted conversations, evidence so crushing that the rest of the prosecution's case scarcely mattered. Defendants offer three principal arguments: that a district judge in the Northern District of Illinois lacked authority under 18 U.S.C. sec.2518(3) to authorize interceptions of conversations that occurred in the Southern District of Illinois, that the statutory authority for roving surveillance is unconstitutional, and that the recorded conversations must be suppressed because the original tapes were not sealed promptly after the authorization expired, as 18 U.S.C. sec.2518(8)(a) requires. All of these arguments were made in Jackson and rejected there with respect to these very tapes. 207 F.3d at 914-18. Although the Supreme Court remanded in Jackson so that we could consider the effect of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the petition for certiorari was denied to the extent that it sought review of the wiretap issues. Relying on Jackson, we rejected in Wilson arguments materially identical to those now presented. 237 F.3d at 831. Our appellants have offered some additional arguments, such as a contention that the affidavits do not show the necessity of using interceptions, as opposed to other investigative techniques, but these are weak. None of the new arguments is persuasive, and the new versions of the old arguments run headlong into the law of the circuit. Now that the court has held that these tapes were properly admitted in two other trials, and rehearing en banc and certiorari have been denied on that subject, it would be inappropriate for a third panel to offer an independent view as if the matter were presented for the first time. Therefore, just as in Wilson, we reject on the basis of stare decisis appellants' contention that the use of these tapes requires reversal.

Similarly we conclude that the CCE convictions are valid whether or not Hoover and the other leaders personally committed the predicate offenses on which the CCE convictions depend. So we held in Wilson, 237 F.3d at 833-34, and Smith, 223 F.3d at 573. Cf. United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989) (en banc) (aiding and abetting a kingpin can support a CCE conviction). Predicate offenses include violations of 21 U.S.C. sec.841 (the principal substantive drug crimes). One way of violating sec.841 is to join a conspiracy whose members defy that statute. This is the holding of Pinkerton v. United States, 328 U.S. 640 (1946): every member of a conspiracy is substantively culpable for other conspirators' acts within the scope of the conspiracy. This means that Hoover and other top managers have violated sec.841 whether or not they sold drugs (or committed the conspiracy's other crimes) personally. Requiring personal commission of the predicate offenses would essentially knock out the sentencing enhancements that sec.848 provides for kingpins, who delegate the dirty work. They direct others in selling drugs or rubbing out rivals, and if this insulated them from culpability then sec.848 might as well be repealed. Using as predicate offenses crimes committed by a different branch of the organization also is appropriate. Wilson and Strawhorn want us to proceed as if the Gangster Disciples were multiple organizations, one for each territory controlled by a governor, but that is not what the jury found: they were convicted of a single conspiracy and under Pinkerton are answerable for the crimes committed by the whole of that organization.

Because a lawful punishment for every CCE conviction is life in prison, we held in Smith that Apprendi does not affect sentencing for this offense. The three defendants who were not convicted under sec.848 have a sound contention that the district court committed error by not telling the jury to determine the kind and quantity of drugs that they distributed. But these defendants did not request such an instruction in the district court, so appellate review is limited to a search for plain error. Only a miscarriage of justice could justify a remand. See Johnson v. United States, 520 U.S. 461 (1997); United States v. Olano, 507 U.S. 725 (1993); United States v. Nance, 236 F.3d 820 (7th Cir. 2000). What must be proved beyond a reasonable doubt after Apprendi is the minimum quantity needed to authorize a particular punishment. Given 21 U.S.C. sec.841(b)(1)(A)(iii), a conclusion that Edwards conspired to distribute 50 grams of crack cocaine would authorize life imprisonment; even 5 grams would do for Bradd and Branch, who were sentenced to fewer than 40 years. See 21 U.S.C. sec.841(b)(1)(B)(iii). Evidence in the record establishes beyond any doubt that the Gangster Disciples distributed (much) more than 50 grams of crack daily, so given Pinkerton (and the jury's verdict convicting each appellant of the over-arching conspiracy) there is no likelihood that any reasonable jury would have failed to find that each is culpable for more than 50 grams of crack. Plain error has not been established. Defendant Wilson's variations (adopted by other defendants) on the Apprendi argument fare no better. Wilson contends that any fact raising a mandatory minimum penalty must be established beyond a reasonable doubt, even if the statutory maximum is life. Smith addressed and rejected that precise argument. As for the contention that sec.841 and sec.848 are unconstitutional (and therefore cannot support any conviction at all) because they do not designate as "elements" the quantities of drugs that matter to punishment: that position is considered, and rejected, in United States v. Brough, 243 F.3d 1078 (7th Cir.2001).

Thus we arrive at issues unique to these defendants. The most serious is a Bruton problem (see Bruton v. United States, 391 U.S. 123 (1968)) created when the district judge permitted the prosecutor to use against Andrew Howard a statement that named Hoover and Shell as the gang's top bosses. Bruton holds that it violates the confrontation clause of the sixth amendment to admit against one defendant a confession accusing a co-defendant, when the declarant will not testify and thus cannot be cross-examined. Judges' instructions to consider the statement solely against its maker will be impossible to follow, the Court concluded. Bruton left open the possibility of redacting a confession to avoid the problem, and Richardson v. Marsh, 481 U.S. 200 (1987), held that some forms of redaction are permissible. Seizing this opening, the prosecutors amended Howard's confession so that "incarcerated leader" replaced every reference to Hoover, and "unincarcerated leader" every reference to Shell. (Hoover ran the Gangster Disciples from state prison, apparently bribing guards with cash and drugs to be allowed the freedom to do this; Shell, who was released from state prison in 1992, was Hoover's ambassador on the outside from then on.) Only a person unfit to be a juror could have failed to appreciate that the "incarcerated leader" and...