U.S.A v. Martin

Decision Date24 August 2010
Docket Number08-3265.,No. 07-2272,07-3893,07-4010,07-3940,07-2272
Citation618 F.3d 705
PartiesUNITED STATES of America, Plaintiff-Appellee,v.Troy MARTIN, Eddie Bell, John Brayboy, Mario Taylor and Jerome Terrell, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit


Stuart D. Fullerton, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Timothy R. Roellig, Attorney (argued), Novelle & Roellig, Donald V. Young, Attorney, Young & Associates, Chicago, IL, for Troy Martin, Defendant-Appellant.

Beau B. Brindley, Attorney (argued), Shapiro & Brindley, Chicago, IL, for Eddie Bell, Jerome Terrell, Defendants-Appellants.

Kent R. Carlson, Attorney (argued), Carlson & Associates, Chicago, IL, for John Brayboy, Defendant-Appellant.

Hannah V. Garst, Attorney, Chicago, IL, for Mario Taylor, Defendant-Appellant.

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

The defendants have been convicted of violating various provisions of 21 U.S.C. §§ 841, 843 and 846, for their respective roles in a narcotics conspiracy.1 They have timely appealed their convictions on various grounds.2 For the reasons set forth in this opinion, we affirm the judgment of the district court. However, for certain defendants, we order limited remands for resentencing.


On September 7, 2004, a grand jury indicted the defendants and many other individuals for various narcotics and firearm offenses. The indictment described the' participation in a sprawling narcotics-distribution network on the west side of Chicago, Illinois, that had been in existence since 1998. A large part of the network consisted of a street gang called the “Mafia Insane Vice Lords” or the “Mafia Insanes.” That gang was organized hierarchically and employed violence to control “drug spots” where narcotics were sold. Individual sellers paid a fee to the gang's leadership (a “street tax”) in return for supply of narcotics, protection and the ability to sell at the drug spots. Troy Martin was the founder and “king” of the Mafia Insanes. Eddie Bell and Donnell Simmons were high-ranking members of the Mafia Insanes' leadership who supplied narcotics to the sellers and collected street taxes from the drug spots.3 Jerome Terrell was a member of another gang called the “Cicero Insane Vice Lords” and also supplied narcotics to Mr. Simmons. Mario Taylor was a member of another street gang called the “Four Corner Hustler” gang; Mr. Taylor coordinated the supply of narcotics to Mr. Simmons and Mr. Terrell. John Braboy assisted Mr. Taylor with packaging and transporting narcotics to Mr. Simmons.4

Many of the defendants pleaded guilty. The remaining defendants proceeded to trial. In August 2006, Messrs. Martin, Bell and two others were tried and convicted. In April 2007, Messrs. Taylor and Braboy were tried and convicted. In July 2007, Mr. Terrell was tried alone and convicted. At each trial, the Government's evidence consisted primarily of wiretap recordings that the Government had obtained during its investigation into the conspiracy, as well as the testimony of police officers, federal agents and cooperating witnesses. Additional facts shall be provided on an issue-by-issue basis.

A. Challenge to the Admissibility of the Wiretap Recordings

In December 2002, the Government began utilizing the procedures described in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 see 18 U.S.C. §§ 2510-22, for intercepting wire communications of suspected members of the conspiracy. Several suspects' phones were targeted during the Government's investigation. We are concerned primarily with the Government's wiretaps on the phones of Messrs. Martin and Simmons.

Each time the Government desired to intercept communications on a particular phone, it sought authorization from the Chief Judge of the United States District Court for the Northern District of Illinois. Included with the Government's wiretap applications were probable cause affidavits that identified the phone to be targeted and a description of the subject matter of the communication that the Government expected to intercept. The affidavits also described the bases for the Government's belief that criminal matters would be discussed. The Chief Judge issued orders authorizing the interception of communications on the phones for thirty days at a time. If the Government desired to continue a phone intercept for longer than thirty days, the Government would submit to the Chief Judge a renewal application, including updated probable cause affidavits.

The Government recorded the wiretap intercepts on magneto-optical (“MO”) disks. MO disks cannot be edited. At the completion of each thirty-day intercept period for a particular phone, irrespective of whether the Government had obtained an extension to continue its wiretap on that phone, the Government sealed, in the Chief Judge's presence, the original MO disks.5 The Government kept the sealed MO discs in a DEA evidence vault. The Government made duplicate recordings of each MO disc for its own use in its pending investigation. Also, police officers created, in real time, line-sheets describing the substance of the intercepted communications. These line-sheets were disseminated to officers and used extensively in the Government's pending investigation.

The Government employed these procedures for wire communications on the suspects' phones from approximately December 2002 until October 2003. With respect to the phones relevant on this appeal, the Chief Judge authorized the Government to wiretap Messrs. Martin's and Simmons's phones for the following periods: Mr. Martin's target phone 2 from February 2003 to September 9, 2003, and Mr. Simmons's target phone 4 from August 2003 to September 17, 2003. See Tr. at 55-58, 61-62, Mar. 3, 2006.

In October 2003, the Government's investigation was nearing an end, and the Government planned to arrest many of the suspects. The Government intended to play the wiretap recordings for the arrestees to facilitate the interrogations. However, on October 10, 2003, the Government discovered that some of its working copies of the communications on Messrs. Martin's and Simmons's phones were incomplete. On the same day, the Government informed the Chief Judge and sought permission to unseal the MO disks that had been stored in the DEA vault. On October 14, 2003, the first business day after the Columbus Day holiday, the court authorized unsealing. On that same day, the Government unsealed the recordings in its vault and discovered that portions of certain sealed MO discs were blank (hereinafter referred to as “the blank-sealed recordings”).6 Later, that same day, after receiving the Chief Judge's permission to do so, the Government sealed reconstituted MO discs of the blank-sealed recordings, which the Government had created by duplicating its working copies; however, certain working copies of the blank-sealed recordings had been lost and, for those portions of intercepted communications, no reconstituted MO discs could be sealed.7

The takedown was delayed because of the problem with the tapes; the Government continued its investigation without using the blank-sealed recordings. For instance, the Government developed probable cause applications for wiretaps on additional suspects' phones without reference to the contents of the blank-sealed recordings. According to one Government agent, the Government essentially “set [the blank-sealed recordings] aside and decided not to use them in any further enforcement action or investigation.” Tr. at 61, Mar. 3, 2006. Eventually the takedown occurred, and Mr. Martin was arrested.


During pretrial proceedings, Mr. Martin filed a motion to suppress, contending that the Government had violated the immediate sealing requirement of 18 U.S.C. § 2518(8)(a).8 R.626 at 1. In his view, the statute had been violated because the reconstituted copies had not been sealed immediately after the conclusion of the wiretaps. He requested an evidentiary hearing “to determine whether evidence resulting from the illegally intercepted conversations should be suppressed.” Id. at 2.

The Government opposed the motion and Mr. Martin's request for a hearing. R.882. The Government conceded that it had sealed MO discs that it believed to have contained recordings, but which were actually blank or partially blank. Id. at 1. However, the Government volunteered not to use any of the blank-sealed recordings as evidence at trial. Id. at 7. With respect to evidence derived from those recordings, the Government contended that the derivative evidence should be admissible for two reasons. First, the Government contended that, even though it would not use the blank-sealed recordings at trial, they were admissible in any event because the Government had a “satisfactory explanation” for the non-sealing: “DEA technician error.” Id. at 9-10.9 Second, the Government contended that evidence derived from the blank-sealed recordings before the sealing obligation arose for those recordings, should be admissible because 18 U.S.C. § 2517(1)- (2) permits the use of recordings for investigatory purposes. Id. at 11-12 (citing United States v. Donlan, 825 F.2d 653, 657 (2d Cir.1987)). Confronting the prohibition in § 2518(8)(a) against the use or disclosure at trial of evidence derived from unsealed recordings, the Government contended that the prohibition should not be applied strictly. The Government urged the district court to adopt the United States Court of Appeals for the Second Circuit's broad construction of the statute, as explained in United States v. Donlan, 825 F.2d 653 (2d Cir.1987).

In response, Mr. Martin contended that no excuse could justify the major delay in sealing that had occurred in his case. R.927. He refuted the Government's proposed excuse-operator error-as unsupported by the record...

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