U.S. v. Suggs, 02-3903.

• Decision Date: 02 July 2004
• Docket Number: No. 02-3903.,No. 03-1425.,No. 03-1517.,No. 03-1899.,No. 03-1091.,02-3903.,03-1091.,03-1425.,03-1517.,03-1899.
• Citation: 374 F.3d 508
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby SUGGS, Seantai Suggs, Aaron M. Davis, Bobby Davis, and Benjamin Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

374 F.3d 508

UNITED STATES of America, Plaintiff-Appellee, v. Bobby SUGGS, Seantai Suggs, Aaron M. Davis, Bobby Davis, and Benjamin Johnson, Defendants-Appellants.

No. 02-3903.

No. 03-1091.

No. 03-1425.

No. 03-1517.

No. 03-1899.

United States Court of Appeals, Seventh Circuit.

Argued February 23, 2004.

Decided July 2, 2004.

Rehearing and Rehearing En Banc Denied August 13, 2004.

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Thomas L. Kirsch, II, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Doyal E. McLemore, Jr., Fort Wayne, IN, for Defendants-Appellants.

Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

On July 20, 2001, a federal grand jury returned a thirty-three count superceding indictment against eighteen defendants, including all five of the Appellants in this consolidated appeal. Three of the Appellants — Bobby Suggs, Seantai Suggs, and Aaron Davis — were convicted by a jury of conspiracy to possess with intent to distribute more than fifty grams of cocaine base ("crack") in violation of 21 U.S.C. § 846, along with a variety of other drug charges pursuant to 21 U.S.C. §§ 841 and 843. These Defendants seek reversal of their convictions on the grounds that the district court admitted unfairly prejudicial evidence, such as photographs of Bobby Suggs's and Seantai Suggs's tattoos and Aaron Davis's gold front tooth, offered to show that they were affiliated with a street gang. Seantai Suggs and Aaron Davis also challenge the sufficiency of the evidence presented by the government on the conspiracy count. For the reasons stated herein, we affirm the convictions of Bobby Suggs, Seantai Suggs, and Aaron Davis.

Benjamin Johnson and Bobby Davis each pled guilty to one count of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). Both men waived the right to appeal in their respective plea agreements but now seek to withdraw their guilty pleas. We uphold the appeal waivers and sentences of Johnson and Bobby Davis.

I. History

A. The Trial

At the trial of Bobby Suggs, Seantai Suggs, and Aaron Davis, the government sought to prove that the three men were involved in a criminal conspiracy to distribute crack in the Concord neighborhood of Gary, Indiana. The conspiracy began in 1994 and ended in 2001; individuals, including the three Defendants, participated at various times and to varying degrees during the course of the conspiracy. The drug trafficking occurred at a government housing complex, just west of Burr Street and south of 15th Avenue (known as "the hill" or "the hole") and on 19th Place, a dead-end street also known as Court Street. Although not involved at the beginning, Bobby eventually led the conspiracy, obtaining kilogram quantities of powder cocaine from multiple sources. He and other co-conspirators converted the powder into crack cocaine. Bobby then distributed the crack to trusted associates, including his brother, Seantai, and Aaron Davis. They, in turn, sold some crack directly to customers and distributed the rest to other dealers, such as Benjamin Johnson and Bobby Davis.

The government's case was based primarily on testimony, videotaped drug transactions, recorded phone conversations, and the presence of drug paraphernalia in Seantai's apartment recovered pursuant to search warrants. Testimony came from members of the Gary Police Force and an FBI-led task force focused on drug and violent crime in northwest Indiana, confidential informants, and members of the drug conspiracy who chose to cooperate with the prosecution.

To help establish the conspiracy, the government also sought to prove that the members of the drug conspiracy were members of a street gang, known as Concord Affiliated (or CCA), that was associated with the Vice Lords, a gang that originated in Chicago but has branched out across the Midwest. The Defendants denied involvement with the drug trade and insisted that CCA was only a rap group, not a gang.¹

Several witnesses established that Bobby received large amounts of cocaine during the course of the alleged conspiracy. Robert Evans, one of Bobby's suppliers, testified that he had supplied Bobby with multiple kilograms of powder cocaine. He personally delivered one kilogram to Bobby's Concord apartment on a single occasion in 1997; both Bobby and Seantai were present when he made the delivery. Other drug suppliers, Anthony Evans (Robert Evans's brother who succeeded Robert after Robert went to jail) and Tomas Unzueta, confirmed that Bobby purchased large amounts of cocaine. Unzueta sold multiple-kilogram quantities to Anthony Evans, who purchased the drugs from Unzueta using funds from Bobby. After a dispute between Anthony Evans and Unzueta, Unzueta dealt directly with Bobby. Unzueta testified that he delivered six more kilograms of cocaine to Bobby after the Evans brothers were no longer used as middlemen.

Bobby converted the powder cocaine to crack at several residences in the Concord neighborhood, including Seantai's residence. Stacey Brookshire, a Gary drug dealer, testified that he observed Bobby cooking approximately one-half kilogram or more in Bobby's apartment. He also helped Bobby prepare nine ounces at a residence on 19th Place. A co-conspirator, Previn Starns, testified that he saw Bobby cooking approximately one-eighth kilogram at a co-conspirator's residence on 18th Avenue.

Other drug dealers involved in the conspiracy pled guilty and agreed to cooperate; they linked all three trial Defendants to the conspiracy. Michael Carter testified that Bobby Suggs and Aaron Davis supplied him with drugs. When Carter was arrested, Seantai Suggs told him to lie about his involvement with the drug conspiracy and to claim that he was merely a fan of the CCA rap group. William Carter testified that he had received drugs from all three men; on at least one occasion, Bobby Suggs provided him with drugs without immediate payment. Stacey Brookshire confirmed that Bobby, Seantai, and Aaron sold crack.

A plethora of evidence was presented to establish that members of the conspiracy sold crack in Concord. An FBI informant moved into the neighborhood in February of 2000 and purchased drugs in nineteen separate transactions from ten different drug dealers, all of which were videotaped. Although she did not buy any drugs directly from the three trial Defendants, she testified that the drug dealers became much more organized when Bobby was outside observing their conduct. Using other paid informants from the neighborhood, the FBI also made controlled buys of crack from Seantai and Aaron Davis. The agents searched the informants, supplied them with money, sent them to complete the transactions, and recovered the purchased crack.

The FBI also recovered incriminating evidence during searches conducted at local residences. A search of Seantai Suggs's apartment led to the recovery of a large glass Pyrex beaker, a box of baking soda, a box of sandwich baggies, a .40-caliber handgun, small quantities of crack cocaine, United States currency, a digital scale, and a knife with crack residue on it. DEA Special Agent Eric Lee opined at trial that these items were consistent with the cooking and packaging of crack. While in jail, the authorities taped phone calls made by Seantai to Bobby and others. Seantai told the men that the "fat rock," a term commonly used to refer to a large amount of crack, according to Agent Lee's testimony, was at "Ms. Howard's" house. The FBI later searched the residence of "Ms. Howard," and they discovered a drug ledger that accounts for a kilogram of drugs.

The Defendants' own statements were also used against them to establish their involvement in drug trafficking. Arrested shortly after the search of his apartment, Seantai told FBI agents that he needed a gun because of his association with CCA and that "CCA don't take shit from no one." Further, the FBI intercepted a number of Bobby's telephone communications. On many of the tapes, Bobby is being informed by other members of the conspiracy of police presence in the area. On occasion, he would issue the order to "lay low." Lastly, Aaron Davis was one of the performers in the CCA rap group. The government pointed to the song, "COKE," in which Aaron raps about his extensive involvement in the drug trade, and his appearance in a video entitled "Live or Die in GI," in which he states that the subjects about which he raps are real.

As part of proving the conspiracy, the government submitted evidence of gang affiliation. After an extended period of gang violence in Gary, Bobby brokered a peace deal with a rival gang, the Bronx Boys. Other members of CCA, purportedly acting on orders from Bobby, committed a violent reprisal against a local citizen who had called the police about drug activity in the neighborhood. Michael Carter, one of the conspiracy's cooperating witnesses, testified that Aaron Davis was a Vice Lord. A letter to Aaron Davis, seized at his Indianapolis apartment, addressed Aaron as "Lord," a term used to refer to members of the Vice Lords. Bobby, talking to a federal agent before the indictment, explained that although gang affiliation was based on neighborhood in Gary, if he were to go to jail he would align himself with the Vice Lords. Finally, Vice Lord literature, including oaths and a constitution, were recovered from the home of Bobby's and Seantai's parents.

Other gang evidence consisted of expert testimony and photographs depicting the Defendants' physical characteristics and gestures. Bobby has a tattoo on his left arm of a cross with the word "Insane" written above the cross. Chicago Police Sergeant Robert Grapenthien testified that the Almighty Vice Lord Nation has broken into five factions, one of which is the Insane Vice Lords. Seantai has a tattoo of a crescent moon and a five-point star on the left side of his chest. Grapenthien testified that the five-point star and the crescent are some of the...