U.S. v. Hughes

• Decision Date: 22 July 1992
• Docket Number: 91-1038 and 91-1233,Nos. 91-1004,s. 91-1004
• Citation: 970 F.2d 227
• Parties: 36 Fed. R. Evid. Serv. 633 UNITED STATES of America, Plaintiff-Appellee, v. David HUGHES, also known as Jesse Ellebee, Atilano Velasquez, and Martin Leanos, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 227

970 F.2d 227

36 Fed. R. Evid. Serv. 633

UNITED STATES of America, Plaintiff-Appellee, v. David HUGHES, also known as Jesse Ellebee, Atilano

Velasquez, and Martin Leanos, Defendants-Appellants.

Nos. 91-1004, 91-1038 and 91-1233.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 1992.

Decided July 16, 1992.

As Amended July 22, 1992.

Daniel C. Murray, Asst. U.S. Atty., Ramune R. Kelecius (argued), Office of U.S. Atty., Crim. Div., Chicago, Ill., for U.S., in No. 91-1223.

Adam Bourgeois, Chicago, Ill. (argued), for defendant-appellant Martin Leanos.

Ramune R. Kelecius (argued), Office of U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for U.S. in Nos. 91-1038 and 91-1004.

Joseph R. Lopez, Chicago, Ill. (argued), for defendant-appellant Atilano Velasquez.

Richard S. Kling, Chicago-Kent College of Law, Chicago, Ill. (argued), for defendant-appellant David Hughes.

Before CUMMINGS and CUDAHY, Circuit Judges, and DILLIN, District Judge. ^*

CUMMINGS, Circuit Judge.

This case stems from a lengthy undercover operation conducted by agents of the Federal Bureau of Investigation ("FBI") into a large heroin, cocaine, and marijuana distribution ring led by Victor Velasquez that operated from about June 1988 until the end of August 1989 out of the second floor apartment above the El Chubasco Bar, located at 831 North Ashland Avenue in Chicago. The investigation included: 1) electronic recording of in-person as well as telephone conversations at the El Chubasco building; 2) the installation of audio and video recording equipment and a transmitter in a hotel room at the Quality Inn just west of downtown Chicago; and 3) the use of Jose Lopez, a confidential informant, who arranged numerous drug deals with Victor Velasquez. A warrant to search the El Chubasco was issued on August 29, 1989. Twenty-three defendants were subsequently charged in a 124-count indictment with a narcotics distribution conspiracy and other narcotics offenses. 21 U.S.C. §§ 841(a)(1), 843(b), 845(a), 846, 848, and 18 U.S.C. §§ 2, 924(c). On this appeal, three of the defendants raise challenges to their convictions or sentences. We affirm.

DAVID HUGHES

David Hughes, a.k.a. Jesse Ellebee, was charged with 16 counts of controlled substance offenses. In Count Two he was charged with knowingly and intentionally conspiring 1) to possess with intent to distribute heroin, cocaine, and marijuana, and 2) to use telephones in furtherance of the conspiracy. 21 U.S.C. §§ 841(a)(1), 843(b), and 846 and 18 U.S.C. § 2. In Counts 96-100, 102-104, 107-108, 110, 112, and 118-120, he was charged with using a telephone in connection with conspiracy to possess and distribute controlled substances. 21 U.S.C. § 843(b). At trial, the government called four FBI agents to testify and presented the tapes of drug-related meetings and intercepted telephone conversations as well as evidence recovered during the raid of the El Chubasco building. The government's case was that Hughes served as Victor Velasquez's drug deal negotiator, order-taker and messenger, supplier of narcotics, drug courier, bookkeeper of drug ledgers, and broker and that, in addition, Hughes was a mixer and a fixer ¹ as well as a dealer running his own drug distribution network from the El Chubasco.

The theory of the defense was that Hughes was not a drug dealer, but rather a heroin addict who did handyman work for Victor Velasquez in exchange for heroin, and that any involvement on his part in the alleged conspiracy was limited to an attempt to secure drugs for his own personal consumption. The defense called three witnesses who testified that Hughes was a heroin addict: Riley Jones, a drug abuse counselor who was called as an expert; Joyce Edmonds, Hughes' sister; and Barbara The jury returned a verdict of guilty on all counts. Hughes was sentenced to 262 months in prison on Count Two with concurring sentences of 48 months on the 15 remaining telephone counts. Hughes appeals his conviction, arguing that the jury was not selected in conformity with Batson v. Kentucky and that his due process rights were violated when the district court made two evidentiary rulings that precluded him from presenting his defense.

Nunnery, Hughes' girlfriend and the mother of his two children.

A. Jury Selection

Hughes, who is black, argues that the government exercised its peremptory challenges to exclude two black prospective jurors in violation of the dictates of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, and asks us to remand this case for a new trial. Batson held that the Equal Protection Clause of the Fourteenth Amendment prohibits the state from exercising its peremptory challenges to exclude blacks from the petit jury. Id. at 85, 106 S.Ct. at 1716. This prohibition extends to the federal government through the Due Process Clause of the Fifth Amendment. United States v. Williams, 934 F.2d 847, 849 n. 1 (7th Cir.1991). It is the defendant who ultimately bears the burden of establishing a discriminatory animus on the part of the prosecution. Hernandez v. New York, --- U.S. ----, 111 S.Ct. 1859, 1873, 114 L.Ed.2d 395 (1991) (O'Connor, J., concurring).

The Supreme Court has set forth an evidentiary framework to aid the trial court in determining whether the use of peremptory challenges rises to a constitutional violation. "The defendant * * * makes a prima facie case of purposeful discrimination in the selection of the petit jury by presenting facts and relevant circumstances that raise an inference that the government used the peremptory challenges in order to exclude venire members because of their race." United States v. Nichols, 937 F.2d 1257, 1262 (7th Cir.1991), certiorari denied, --- U.S. ----, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992). Once the prima facie case is established, the burden shifts to the government to articulate a neutral explanation for the exclusion of the black venire members, Batson, 476 U.S. at 94, 106 S.Ct. at 1721, that is "clear and reasonably specific, presenting legitimate reasons that are related to the particular case." Nichols, 937 F.2d at 1262. However, the government's explanation "need not rise to the level justifying exercise of a challenge for cause." Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723. The trial judge must then determine whether the government's use of a peremptory challenge was motivated by improper factors. Id. at 98, 106 S.Ct. at 1723. Because the trial judge's findings often involve questions of credibility, our review is deferential, and we will only overturn a finding regarding discriminatory intent in the use of peremptory challenges if it is clearly erroneous. United States v. Ferguson, 935 F.2d 862, 864 (7th Cir.1991), certiorari denied, --- U.S. ----, 112 S.Ct. 907, 116 L.Ed.2d 807 (1992).

In the instant case, the venire consisted of 30 persons, four of whom were black. Two of those blacks were empaneled, and two were struck by the government. Hughes objected to each of these strikes. The trial judge overruled all of Hughes' objections, finding no racial factor in the explanations put forth by the government. At the end of the jury selection, the government had one peremptory challenge left.

The government argues that its peremptory strikes against the two black venire members were not racially motivated and that its explanations were race-neutral. The government challenged Lily Hill primarily because she had a cousin who had served two years in jail for a drug offense and robbery and who, since his release, was arrested and awaiting trial on other drug and robbery charges. Despite Hill's attestation to the contrary, the government questioned her ability to be fair and impartial, particularly in light of the proximity both in blood relationship and in time to her cousin's legal troubles, relying on its "intuitive assumptions" regarding the latent inclinations The government challenged Tracy Allen because she is young, recently unemployed without having looked for another job, and lacks a stable, traditional household, as she is unmarried with three children. The government argues that it has an interest in having jurors with stable family backgrounds who would be fair to the government and who would not identify with the disorganized and uncertain lifestyles of drug dealers. ³ As a secondary reason, the prosecutor stated that Allen had taken a paralegal course a few years earlier which included "a taste of criminal law" and that he was a "little leery of people who have a little knowledge of the law." The government reasons that there is a danger that a person who has had some legal training herself or himself, as opposed to someone who has merely sat as a civil juror or had lawyers or law students for spouses, may bring a few extraneous and undeveloped legal principles to the deliberation process. Williams, 934 F.2d at 850.

                of a prospective juror.  United States v. Briscoe, 896 F.2d 1476, 1489 (7th Cir.), certiorari denied, --- U.S. ----, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990) (approving intuitive assumptions that are not quantifiable).   As a secondary reason, the government stated that it was looking for law-abiding and stable people, and that Hill was unemployed 2 and living with her fourteen-year old twins that she had had out of wedlock when she was forty
                

Hughes argues that the government's explanations are a sham and not related to this case. Regarding Hill, Hughes argues that it is preposterous that an out-of-wedlock pregnancy 15 years earlier could demonstrate that a venire member does not possess stability and law-abiding characteristics. Moreover, none of the white venire members, married or not, were asked if they ever had children out of wedlock. As for her cousin's drug conviction, Hill unhesitatingly stated that she had no difficulty with a law that prohibits the possession or distribution of narcotics and that...