U.S. v. Walker

• Citation: 25 F.3d 540
• Decision Date: 29 July 1994
• Docket Number: 90-3779 and 92-1981,Nos. 90-3577,90-3579,90-3713,90-3578,s. 90-3577
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Connie WALKER, Antoinette Lloyd, Ronald Jackson, also known as Cuzzo, Mario H. Lloyd, and Charles Lloyd, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 540

25 F.3d 540

UNITED STATES of America, Plaintiff-Appellee, v. Connie WALKER, Antoinette Lloyd, Ronald Jackson, also known

as Cuzzo, Mario H. Lloyd, and Charles Lloyd,

Defendants-Appellants.

Nos. 90-3577, 90-3578, 90-3579, 90-3713, 90-3779 and 92-1981.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 13, 1994.

Decided May 31, 1994.

Order Denying Rehearing and Motion to Amend July 29, 1994.

Allen E. Shoenberger, Loyola University School of Law, Kerrie A. Lethbridge (argued) Chicago, IL, for Ronald Jackson.

Allan A. Ackerman (argued), Chicago, IL, for Mario Lloyd.

Michael E. Deutsch, Jeffrey H. Haas (argued), Peoples Law Office, Chicago, IL, for Charles Lloyd, Connie Walker and Antoinette Lloyd.

Zaldwaynaka L. Scott, Andrea L. Davis, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Div., Chicago, IL, Barry R. Elden, Asst. U.S. Atty., Matthew C. Crowl (argued), Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

Mario Lloyd, pro se.

Before CUMMINGS, ESCHBACH, and FLAUM, Circuit Judges.

ESCHBACH, Circuit Judge.

This is a consolidated criminal appeal by five defendants who were convicted of various drug, money laundering, and conspiracy offenses. For the reasons below, we affirm on all grounds. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I.

Assisted by his co-defendants in various capacities, Mario Lloyd captained a major cocaine distribution operation with a product distribution of hundreds of kilograms of cocaine in Chicago and Milwaukee, revenues of $20-30 million and profits over $2 million. Some of Mario's former workers and distributors, facing stiff sentences for their own convictions, cooperated with the government and testified at trial about Mario's operation. Mario employed several people, including appellants Ronald Jackson and Charles Lloyd, to distribute large amounts of cocaine. Mario purchased his cocaine from Colombian drug sources and others and then called upon his brother Charles and appellant Jackson, among others, to distribute the cocaine using such clever devices as cars with secret, James Bond-like compartments to store cocaine and cash. From his operations Mario garnered fantastic sums of cash, which he needed in some fashion to hide from authorities.

To help him launder his cash, Mario employed several family members, including his own mother, appellant Connie Walker, and his sister, appellant Antoinette Lloyd, to purchase condominiums, townhouses, expensive cars, furs, and jewelry. Although the Lloyd family and friends lived richly, spending their hoards of cash while avoiding scrutiny by the government proved more difficult than they might have originally imagined. Mario first encountered our statutory barriers to large cash transactions when he and his mother bought a $53,000 condominium using cash in a grocery sack they brought to the closing. The bank representing the seller, although probably pleased with Mario's excellent credit, nevertheless informed him and Walker of its obligation to report the transaction to the Internal Revenue Service. In an effort to make an end run around the bank's reporting obligations, prior to his next real estate purchase Mario and his mother enlisted other family members, including Antoinette, to buy separate money orders and cashier's checks, each in amounts less than $10,000, from several different banks and currency exchanges. With a stack of 76 cashier's checks and money orders obtained by Walker, Walker's sister, Walker's cousin, and Antoinette, Mario purchased a townhouse in the name of the four women for $161,900.

What Mario and his crowd could not spend, they stashed in lock boxes. Pursuant to search warrants, federal agents recovered approximately $1.25 million in cash from three different bank lock boxes. Notwithstanding their substantial profits, however, none of Mario's clan filed tax returns except Charles, who claimed a $1,900 loss from his automobile business. More alarming is that Connie Walker and Charles and Antoinette Lloyd collected public aid at different times during the course of the conspiracy, while simultaneously buying or receiving as gifts expensive jewelry, furs, and cars.

Unfortunately for Mario and his coterie, their party ended on July 11, 1989 when a Special Grand Jury indicted all appellants. Their original indictment was later superseded on August 15, 1989 by a 30-count indictment. After a lengthy trial, the jury convicted all defendants on all counts.

On appeal these five defendants, Mario, Charles, Antoinette, Walker, and Jackson, raise a slew of arguments. ¹ We have read each of their briefs thoroughly and reach only those issues that have arguable merit and demand our serious consideration. Although numerous, we are not persuaded by any of defendants' arguments on appeal and therefore affirm.

II.

Mario Lloyd, ² joined by his brother Charles Lloyd, ³ first argues that the district court erred in accepting the magistrate judge's recommendation to deny their request for a Franks hearing. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). The Fourth Amendment requires the district court to hold an evidentiary hearing where a defendant makes a "substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit [and] the allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676.

Mario and Charles alleged that a search warrant used to recover approximately $1.25 million in cash from various safe deposit boxes contained false statements by a confidential informant known as Eva Ward (a past girlfriend of Mario's). Without her statements, they urge, the magistrate would not have issued the warrant. We review a district court's decision not to hold a Franks hearing for clear error, United States v. Pace, 898 F.2d 1218, 1226-27 (7th Cir.), cert. denied, 497 U.S. 1030, 110 S.Ct. 3286, 111 L.Ed.2d 795 (1990), and we presume that an affidavit supporting a search warrant is valid. Franks, 438 U.S. at 171, 98 S.Ct. at 2684; United States v. Radtke, 799 F.2d 298, 309 (7th Cir.1986).

As their sole basis for a Franks hearing, the defendants furnished only a tape recording of a private investigator's subsequent interview with Eva Ward and the investigator's affidavit as to the authenticity of the tape recording. Ward's recantation of her earlier statements was not corroborated in any way. Without sworn testimony or other reliable evidence, Ward's taped conversation surely does not satisfy the defendant's burden of establishing the probable falsity of her statements in the warrant, especially in light of the government's detailed recitation of Ward's statements. See, e.g., United States v. McNeese, 901 F.2d 585, 594 (7th Cir.1990) ("a defendant seeking a Franks hearing bears a substantial burden to demonstrate probable falsity") (citing United States v. Hornick, 815 F.2d 1156, 1158 (7th Cir.1987)). Even absent Ward's prior statements, sufficient evidence from a variety of other unimpeached sources included in the warrant justified probable cause, obviating the need for a Franks hearing. Therefore, the district court properly denied the defendants' request for a Franks hearing.

Both Mario and Charles next contend that the district court erred in denying their request for a mistrial. Specifically, they allege that defense lawyers raised mutually antagonistic defenses in their summations at trial, warranting a mistrial. We review a failure to grant a mistrial or severance for abuse of discretion. Zafiro v. United States, --- U.S. ----, ----, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). Unless the defendants demonstrated that they " 'could not possibly have a fair trial without a severance,' " the district court will have properly denied their motion for a new trial. United States v. Smith, 995 F.2d 662, 670 (7th Cir.1993) (quoting United States v. Caliendo, 910 F.2d 429, 437 (7th Cir.1990)), cert. denied, --- U.S. ----, 114 S.Ct. 718, 126 L.Ed.2d 683 (1994). Generally, co-conspirators indicted together should also be tried together. Id. at 670.

Mario and Charles argue that during summation the lawyers for two other co-defendants, Ronald Jackson ⁴ and Antoinette Lloyd, ⁵ developed mutually antagonistic defenses to their own, necessitating a severance or mistrial. Essentially, Jackson's lawyer told the jury they could find a conspiracy but still find that his client was not involved. Antoinette's lawyer argued that the facts did not prove Antoinette's knowledge of the conspiracy and that the jury should not find her guilty simply because of her namesake. While there may be some tension between these statements and Mario's and Charles' defense that there was no conspiracy, they are nevertheless not antagonistic. See United States v. Gironda, 758 F.2d 1201, 1220 (7th Cir.), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985); see also United States v. Petullo, 709 F.2d 1178, 1181-82 (7th Cir.1983). Moreover, the district judge sufficiently instructed the jury that although the defendants were being tried together, the jury should nevertheless consider the evidence with respect to each individual defendant separately. As in Zafiro, these instructions rendered any possible conflict harmless. Zafiro, --- U.S. at ----, 113 S.Ct. at 939. Therefore, the district court properly denied the defendants' request for severance or mistrial.

The defendants also raise several arguments concerning Judge Aspen's instructions to the jury. Upon review of the instructions, we find no error.

First, Antoinette argues that the district court erred by giving the "ostrich" instruction. ⁶ Essentially, the ostrich instruction states that a person cannot avoid the "knowingly" requirement of a crime by consciously avoiding the truth about a particular...