U.S. v. Jackson

• Decision Date: 14 June 1991
• Docket Number: Nos. 89-3287,89-3328 and 89-3385,s. 89-3287
• Citation: 935 F.2d 832
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mandell JACKSON, Joseph Davis, and Romano Gines, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 832

935 F.2d 832

UNITED STATES of America, Plaintiff-Appellee, v. Mandell JACKSON, Joseph Davis, and Romano Gines,

Defendants-Appellants.

Nos. 89-3287, 89-3328 and 89-3385.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 11, 1991.

Decided June 14, 1991.

James Porter, Asst. U.S. Atty., East St. Louis, Ill., for U.S.

Michael Dwyer, Office of the Federal Public Defender, St. Louis, Mo., for Mandell Jackson.

James W. Ackerman, Springfield, Ill., Richard F. Spencer, Jr., Cincinnati, Ohio, for Joseph L. Davis.

Bradford Hunt, Alton, Ill., for Romano Gines.

Before CUMMINGS and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

FLAUM, Circuit Judge.

Mandell Jackson, Joseph Davis, and Romano Gines were each indicted and convicted of one count of conspiring to distribute over 50 grams of cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 846. In addition, Davis was indicted and convicted of one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 and three counts of money laundering in violation of 18 U.S.C. Sec. 1956(a). Jackson and Gines were sentenced to 210 months each. Davis was sentenced to 30 years. We affirm the convictions, but remand Gines' case for resentencing because we conclude that the district court erroneously increased his offense level by applying an obstruction of justice enhancement.

I. FACTS AND PRIOR PROCEEDINGS

The Reverend Joseph Davis describes himself as "a small-time, hellfire and brimstone country preacher." Supplemental Brief at 14. The evidence at trial, however, presented a more complete view of Mr. Davis' talents. It showed how he repaired a run-down East St. Louis church and revitalized its congregation, helping to restore the social fabric of a community in distress. Sadly, it also showed that Davis devoted his considerable skills to a variety of schemes that ranged from shady to downright illegal. One of these schemes was the ongoing distribution of late-twentieth century America's counterpart to brimstone, crack cocaine.

Davis became the preacher at the 15th Street Baptist Church in the mid-1980s. Shortly thereafter he began to sell drugs, and by mid-1987 was actively selling crack from two houses, the first at 735 Wabashaw and the second at 1479 Belmont. The Wabashaw house was managed by Dwayne Scruggs and the Belmont house by Mandell Jackson. Scruggs and Jackson directed teams of addicts who would sell crack on the streets around the houses as well as to passing motorists. They were paid for their efforts in crack. These addicts had occasional contacts with Davis, who would visit the houses to replenish the drug supply and collect cash. During the visits Davis would typically confer with the house manager privately. If the cocaine Davis supplied came in powder form, Jackson or Scruggs would cook it into cocaine base which they would then divide into smaller portions and distribute to the sellers for resale. At the Belmont house, Romano Gines helped with the cooking and otherwise assisted Jackson in running the house.

Davis deposited some of the cash he collected from the houses in bank accounts maintained in the name of the 15th Street Baptist Church Development Corporation ("Development Corporation account") and the 15th Street Baptist Church ("Church account") at Illini Federal, a local savings and loan. Also deposited in the Development Corporation accounts were funds that Davis and the Corporation obtained from other activities. One of Davis' other activities was steering his parishioners and others to used-car outlets in the East St. Louis area in return for commissions from the dealers, a practice known as "bird-dogging." Davis would secure consumer credit for the cars and other purchases he helped to arrange through Sam Bennett, a loan officer at Jefferson Bank & Trust in St. Louis. Bennett, it is alleged, would turn a blind eye to the inability of many of the borrowers Davis sent his way to repay their obligations to Jefferson. In return, he and Davis would split the fees they received for arranging these loans. Davis also deposited in the Church and the Development Corporation accounts funds he received from more legitimate activities, including a contract for the Corporation to demolish a building in East St. Louis.

Davis could write checks on these accounts. Some of these checks were made out to cash, which Davis diverted to his personal use. Others were made out to local vendors who provided services such as beepers and mobile telephones. Still others were made out to the landlord who owned the Swansea, Illinois, residence where Davis lived. Davis also purchased numerous cars, spending over $79,000 on a variety of vehicles for personal and church use between October 1987 and November 1988.

East St. Louis police, assisted by officers of the Illinois Department of Criminal Investigation and the Drug Enforcement Administration, began to investigate Davis' activities after a raid on the Wabashaw Avenue drug house--owned by Davis' mother--in September 1988. In early December 1988, Marcie Rupert, who sold crack at the Belmont house, told Illinois state trooper Terry Delaney that Davis had raped her. She also described Davis' role in the operation of the Belmont and Wabashaw crack houses. On December 22, 1988, East St. Louis police officers looking for a runaway 13-year-old girl entered the Belmont Avenue house. They found the girl, and saw drug paraphernalia and several guns lying around the house in plain view. They also met the dozen or so individuals who occupied the house, including Romano Gines and Mandell Jackson. Later the same day, an undercover DEA agent approached the Belmont house and consummated a drug transaction with another of its occupants, Romano Gines. Subsequent arrests of a number of sellers who worked out of the houses yielded additional information implicating Davis.

In February 1989 police arrested Scruggs while he was carrying a quarter-ounce of cocaine. A search of Scruggs' home revealed weapons. In April 1989 he was joined in custody by Davis, Jackson, and Gines. Davis was searched and was found to be carrying over $1,000 in cash. A search of his home uncovered a precision scale, more guns, and numerous plastic sandwich bags, some of which contained traces of cocaine. The office at the Fifteenth Street Baptist Church was also searched, yielding another precision scale and records of the Church and Development Corporation bank accounts. These records revealed that from October 1987 to February 1989, over $191,000 had been deposited in the Development Corporation account. Of this amount, over $100,000 was deposited in cash.

A grand jury in the Southern District of Illinois indicted Davis, Gines, Jackson, and Scruggs of conspiring to distribute over 50 grams of cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 846. In addition, Davis was indicted for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. Davis was also charged with four counts of laundering funds derived from drug activities in violation of 18 U.S.C. Sec. 1956(a)(1). One count was based on a series of checks drawn on the Development Corporation account and made out to providers of cellular telephone and paging services. Another was based on checks drawn on the same account and made out to Davis' landlord. A third was based on a series of Development Corporation checks that Davis or the church secretary presented at the savings and loan in return for cash. The last count was based on Davis' use of $5,500 in cash derived in part from his drug activities to purchase a car.

Scruggs plead guilty to conspiracy and testified against his former confederates at their joint trial. At the close of this trial, Davis, Gines, and Jackson were each found guilty of conspiring to distribute cocaine base. The jury also found Davis guilty of engaging in a continuing criminal enterprise, and of three of the four counts of money laundering. The jury acquitted Davis of the money laundering count arising from the purchase of the car. All three appeal, raising a plethora of arguments to which we now turn.

II. VOID FOR VAGUENESS--MONEY LAUNDERING (DAVIS)

We first discuss Davis' argument that the money laundering statute under which he was convicted in counts three through five, 18 U.S.C. Sec. 1956(a)(1), violates his constitutional right to due process because it is impermissibly vague. The government responds that as applied to Davis the statute gave ample notice that the conduct he engaged in was prohibited.

In evaluating a vagueness challenge, it is not enough to conclude "that Congress might, without difficulty, have chosen '[c]learer and more precise language' equally easily." United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 321, 46 L.Ed.2d 228 (1975) (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877 (1947)). Rather, "the void-for-vagueness doctrine requires only that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); see United States v. Van Hawkins, 899 F.2d 852, 853-54 (9th Cir.); United States v. Pinelli, 890 F.2d 1461, 1470 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2568, 109 L.Ed.2d 750 (1990). The second of these two aspects is more important than the first, see id. 461 U.S. at 358, 103 S.Ct. at 1858, and bars criminal statutes "of such a standardless sweep [as to] allow[ ] policemen, prosecutors, and juries to pursue their personal predilections." Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974). "Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute...