U.S. v. Medina

• Decision Date: 08 December 2005
• Docket Number: No. 02-1796.,No. 02-2518.,No. 02-1700.,No. 02-2246.,No. 02-2252.,No. 02-2353.,No. 02-2824.,No. 02-3998.,No. 02-2232.,02-1700.,02-1796.,02-2232.,02-2246.,02-2252.,02-2353.,02-2518.,02-2824.,02-3998.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ignacio MEDINA, Leslie Chambers, Thomas Ross, Gerald Pittman, Fidelmar Cortes, Jose Rodriguez, Waldemar Gonzalez, Marlon Regalado, and Juan Hernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.3d 869

UNITED STATES of America, Plaintiff-Appellee, v. Ignacio MEDINA, Leslie Chambers, Thomas Ross, Gerald Pittman, Fidelmar Cortes, Jose Rodriguez, Waldemar Gonzalez, Marlon Regalado, and Juan Hernandez, Defendants-Appellants.

No. 02-1700.

No. 02-1796.

No. 02-2232.

No. 02-2246.

No. 02-2252.

No. 02-2353.

No. 02-2518.

No. 02-2824.

No. 02-3998.

United States Court of Appeals, Seventh Circuit.

Argued September 16, 2005.

Decided December 8, 2005.

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Susan Haling (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Robert K. O'Reilly, Ademi & O'Reilly, Cudahy, WI, James D. Tunick (argued), Patrick W. Blegen (argued), Gareth G. Morris, Michael D. Robbins, Schlesinger & Robbins, Kent R. Carlson, Roger H. Dusberger (argued), Chicago, IL, William E. Marsh, Indiana Federal Community Defenders, Inc., Indianapolis, IN, Brian P. Mullins, Federal Defender Services of Eastern Wisconsin, Inc., Milwaukee, WI, for Defendants-Appellants.

Before WOOD, EVANS, and SYKES, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Seventeen members or associates of a Chicago street gang with a delightful name—the Maniac Latin Disciples—were charged in a 50-count indictment with drug and firearms offenses. Ten were convicted in a trial which lasted several months. Nine of the 10 now appeal their convictions; six of the nine also appeal their sentences.

The drug distribution conspiracy was uncovered through the usual investigative techniques. There were controlled purchases by informants and undercover agents, seizures of narcotics and money, and visual surveillance by law enforcement agents. There were approximately 300 tape recordings of telephone conversations intercepted pursuant to court-authorized wiretaps, and there was information provided by former members and associates of the conspiracy. All of which led to the indictment, in which all defendants were charged with conspiracy to distribute narcotics, pursuant to 21 U.S.C. § 846. In addition to the conspiracy, some of the defendants were charged with substantive counts of possessing with the intent to distribute narcotics and with distribution of narcotics (21 U.S.C. § 841(a)(1)). Some were charged with using the telephone to facilitate the conspiracy (21 U.S.C. § 843(b)). Some were charged with firearms offenses (18 U.S.C. §§ 922(g) and 924(c)). Some of those charged entered guilty pleas with cooperation agreements and testified against the others; some simply entered guilty pleas; one had the indictment dismissed as to him; and one remains a fugitive. As we said, nine of those who proceeded to trial now appear before us.

Our nine appellants were convicted of the conspiracy to distribute narcotics as well as other substantive offenses. They were sentenced to concurrent terms. We relate only the controlling sentence. Ignacio Medina received a 121-month term; Leslie Chambers, 151 months; Waldemar Gonzalez, 160 months; Fidelmar Cortes, 235 months; Jose Rodriguez, 292 months; Marlon Regalado, 324 months; and Juan Hernandez, 360 months. Thomas Ross and Gerald Pittman received life sentences.

The general outline of the operation, as shown by the evidence at trial which we accept as true, is as follows. The gang was divided into approximately 24 sections, each known by the street intersection at which it was located: Beach and Paulina or Rockwell and Potomac, for instance. The sections were required to follow the rules established by the gang leaders. The gang members engaged in both wholesale and street-level drug dealing. The core of the drug distribution conspiracy was comprised of Maniac Latin Disciple (MLD) members and associates who regularly distributed wholesale quantities of cocaine, crack, and marijuana. These quantities ranged from 1/8 of an ounce (an "eight-ball" in the trade) to nine ounces. These quantities were often broken down and repackaged into smaller quantities which were sold on the street corners and in drug houses. Lower-level members of the gang were required to take turns each day selling dime bags of crack cocaine in what they called "throw lines." What this means, according to the testimony of Jose Aguirre, is that the sellers on a given corner had to take turns. When a customer came, one person would sell to him and then go to the end of the line to wait his turn to sell to another customer. Other armed gang members worked security in order to protect the street corner from both the police and from rival gangs.

Ross, also known as "Outlaw," was a top-ranking MLD, who had what seemed to be a limitless supply of drugs. He became the principal supplier of cocaine and crack to the MLDs in about 1997. Ross had a crew of MLD helpers, including Cortes (aka "Fidel" and "Bajia"), Marcos Zacarias ("Dusty"), Gonzalez ("Waldy"), and Regalado. Ross arranged the delivery of drugs to many individuals, in addition to the appellants. Ross's workers packaged and distributed drugs, picked up drugs and drug proceeds, and supplied the leaders of the other MLD chapters in order to get the drugs to the street sellers. Ross also ordered members of the MLD to use violence to protect MLD locations from encroachment by rival gangs.

Two other high-ranking members of the gang included the "Bum" brothers—Juan Hernandez aka "Bum" and David Hernandez aka "Little Bum." They each ran a street-corner chapter of the MLD. Jose Rodriguez ("Baby D") was a long-time member of the MLDs and completed a lengthy prison term about 6 months before his arrest in this case. Immediately upon his release, he resumed his association with the MLD and its drug-trafficking activities.

Pittman was another senior member of the gang and ran a street-corner section. Later, he received large amounts of narcotics directly from Ross and distributed them to other MLDs and customers. Medina ("Nacho"), a member of the gang, and Chambers ("Black Les"), an associate of the gang, also received drugs from Ross to sell to their customers.

The members attended meetings and paid dues, which included portions of the narcotics profits. Dues were used to purchase weapons for the gang's use.

In this appeal from their convictions, the appellants join in contending that they must be retried because of bias on the part of the jury foreman and because the government changed its theory of the conspiracy during the trial, making the admission of evidence of gang affiliation improper. Medina, Chambers, Rodriguez, Hernandez, and Gonzalez claim that there was insufficient evidence to convict them of conspiracy; they say they had a mere buyer-seller relationship with Ross. Pittman claims he was denied his right to testify when the judge denied his motion to reopen the evidence to allow his testimony. Cortes contends that the judge abused his discretion in giving a supplemental jury instruction in response to a question from the jury, and he claims his trial should have been severed because he and Medina had mutually antagonistic defenses. Rodriguez also claims he should have been granted a severance. Hernandez claims that the testimony of Jose Aguirre, which involved Hernandez's leadership of the Beach and Paulina chapter from 1988 to 1990, effectively amended the indictment, which referred to activities "on or before the early 1990's." Obviously, some of these issues have more substance than others. While we have carefully considered them all, we will discuss at length those which, in our view, merit more thorough explanation.

As to the sentences, the three with the shortest terms, Medina, Chambers, and Gonzalez—apparently in an astute decision to leave well enough alone and not risk winning longer sentences—do not appeal. As to the others, the government concedes that Ross, Pittman, and Regalado must be resentenced and that Cortes, Rodriguez, and Hernandez are entitled to a remand pursuant to our decision in United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

The primary issue on appeal is a claim of juror bias, which, the defendants argue, requires a new trial. The district court disagreed. We review a decision to deny a motion for a new trial based on juror bias for an abuse of discretion, and a district court's decision will be reversed only if there is a strong indication of prejudicial error. United States v. McClinton, 135 F.3d 1178 (7th Cir.1998). We are instructed that there are "compelling institutional considerations militating" in favor of appellate deference to the trial judge's evaluation of the significance of possible juror bias. Arizona v. Washington, 434 U.S. 497, 513-14, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). In fact, "due process does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). In most cases, the redress for assertions of bias is a hearing in which the defendant is given a chance to prove actual bias. In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme Court set out the standard for determining when potential juror responses during the selection process require a new trial: a party must first show "that a juror failed to answer honestly a material question on voir dire," and, if successful, then must demonstrate that "a correct response would have provided a valid basis for a challenge for cause."

In our case, the juror involved was a fellow named Andrew Heytow. Heytow, who has a college degree and owns his own company, had never been on a jury before being called to service in this case. He became the jury's foreperson. At issue here are Heytow's answers to two written questions, numbers 11 and 12, given during the voir dire presided over by District Judge Robert W. Gettleman.

Question 11. You will hear evidence in this case about alleged involvement with street gangs. Will this evidence affect your ability to be a...