U.S. v. Wilson

• Decision Date: 16 March 2007
• Docket Number: No. 04-1999.,No. 04-1763.,No. 04-1594.,No. 05-2668.,No. 04-1595.,04-1594.,04-1595.,04-1763.,04-1999.,05-2668.
• Citation: 481 F.3d 475
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daryl L. WILSON, Stevie Thomas, Donnell L. Cohn, Sammy Armstead, and Tyree Collins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

481 F.3d 475

UNITED STATES of America, Plaintiff-Appellee, v. Daryl L. WILSON, Stevie Thomas, Donnell L. Cohn, Sammy Armstead, and Tyree Collins, Defendants-Appellants.

No. 04-1594.

No. 04-1595.

No. 04-1763.

No. 04-1999.

No. 05-2668.

United States Court of Appeals, Seventh Circuit.

Argued February 6, 2007.

Decided March 16, 2007.

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

Adam B. Goodman (argued), Chicago, IL, Michael Jay Karber, Schwartz, Cooper, Greenberger & Krauss, Chicago, IL, Donna A. Hickstein-Foley, Foley & Foley, Chicago, IL, Demitrus Evans (argued), Westchester, IL, Jeffrey M. Brown, Northeastern Illinois University, Chicago, IL, for Defendants-Appellants.

Tyree Collins, Bastrop, TX, pro se.

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This multi-defendant criminal appeal concerns a drug conspiracy at a public housing complex in Chicago. The five defendants were members of the Gangster Disciples ("GD") street gang, which organized all drug sales at a building at 340 South Western Avenue. Each was indicted for, among other things, conspiracy to possess with intent to deliver crack cocaine within 1000 feet of a public housing complex. Donnell Cohn and Tyree Collins pled guilty while Sammy Armstead, Darryl Wilson, and Stevie Thomas went to trial and were found guilty. Their sentences range from 180 months to life imprisonment.

The principal argument on appeal is that the government failed to disclose material evidence that could have allowed the defendants who went to trial to impeach one of the prosecution's key witnesses. In light of the overwhelming evidence against the defendants, we find that the suppressed evidence was not material. Several defendants also raise various sentencing issues. In accordance with the procedure set forth in United States v. Paladino, 401 F.3d 471 (7th Cir.2005), we order a limited remand as to the sentences of Armstead and Wilson. We dismiss Cohn's appeal because his plea agreement contained a waiver of his appeal rights. Finally, Collins's appointed counsel moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because we agree with counsel that any potential appellate issue would be frivolous, we grant the motion to withdraw and dismiss Collins's appeal.

I. BACKGROUND

In 2000 the Department of Housing and Urban Development ("HUD") began investigating drug sales at the 340 building, which was a part of the Rockwell Gardens public housing complex on the west side of Chicago. Through the use of undercover agents, cooperating codefendants, and audio- and video-recordings of gang meetings and conversations, HUD brought to light a substantial business in crack cocaine from 1999 to 2002 that was spearheaded and organized by the GDs. Over a nine-month period, two undercover agents purchased almost 200 grams of crack in approximately 50 separate transactions, including from defendants Wilson and Thomas. Investigators also secured the cooperation of a number of members of the conspiracy, including Richard Epps (a former high-ranking GD member who was demoted for conducting a side-business in drugs), and Derquann Butts and Trevon Banks (two disgruntled GD members who were beaten for insubordination). In addition, defendant Collins cooperated with the government and was rewarded with the promise of a sentence of one-half the bottom end of his range under the Sentencing Guidelines. Collins eventually pled guilty and was sentenced to 180 months' imprisonment; on appeal he challenges his sentence.

The evidence against the other defendants was substantial. According to audio recordings and testimony from co-defendants, defendant Armstead was the governor of the GDs for the west side of Chicago beginning in September 2001—he controlled all west side operations for the gang. The government introduced a recording, obtained through a wire transmitter worn by one of the cooperating co-defendants, of an October 2001 gang meeting that Armstead led. The meeting was an attempt to kick-start the GD drug business at the 340 building, which was disorganized and inefficient. The standing policy was for gang members to sell the gang's drugs on the first four days of the month—when residents of the building received paychecks or public assistance—leaving the remainder of the month for sales from gang members' private stashes. Some gang members were tired of the policy and asked Armstead to propose to his superiors cutting back gang sales to every other month. He promised to relay the concern, but otherwise emphasized the need for cooperation and reinforced the first-of-the-month policy, which he said would benefit all gang members. The government also made audio and video recordings of meetings in August and September 2002, in which Armstead described the GDs' sales organization at the 340 building, brainstormed new ways to increase profits through drug sales, and encouraged defendant Collins (who by that time was cooperating with the government) to take a leadership role in the gang's operations at the 340 building. Finally, the government introduced recordings of several telephone calls in which Armstead demonstrated his control over the conspiracy. The recordings were corroborated by the testimony of cooperating codefendants Epps and Collins. In addition, cooperating codefendants Banks and Butts confirmed that Armstead was the governor of the west side GD organization. Armstead was found guilty of conspiracy and using a telephone to commit a felony. He was sentenced to life imprisonment. On appeal he challenges both his conviction and his sentence.

The government's case against defendant Wilson was based largely on the testimony of the two undercover HUD agents. Wilson was a regent of the GDs for the 340 building (regents control all gang activity at a particular location). On at least four occasions, he sold crack to an undercover agent, and usually did so in cooperation with other gang members, whom he either directed to obtain crack for him to sell or instructed to sell crack to the agent on his behalf. The agent had to be searched by other gang members before he could enter the 340 building. Cooperating co-defendants Banks and Butts also testified that as regent, Wilson collected proceeds from the sale of gang drugs and helped enforce gang policies. Wilson pled guilty to four counts of individual crack sales but went to trial on the conspiracy charge. He was found guilty and sentenced to life imprisonment. He appeals his conviction and sentence.

Defendant Thomas did not have a leadership role in the organization; he merely sold crack on behalf of the gang. On one occasion he sold crack directly to a HUD agent, instructing another gang member to obtain an additional amount of drugs to complete the order. On another occasion, Thomas attempted to intervene while other GDs at the 340 building sold crack to the agent. When told to provide security on the deal by standing on the lookout for police officers, Thomas complained because he would not earn any money in that capacity. He went to trial charged with conspiracy and several individual drug sales; he was convicted and sentenced to 240 months' imprisonment. He appeals only his conviction.

Lastly, defendant Cohn pled guilty to conspiracy to sell drugs near a public housing facility and was sentenced to 300 months' imprisonment. He appeals only his sentence.

II. ANALYSIS

A. Brady claim raised by Armstead, Wilson, and Thomas

The three defendants who went to trial challenge the district court's denial of their motion for a new trial on the basis of suppressed evidence. During discovery, the government produced hundreds of pages of notes and correspondence from Richard Epps, the former GD leader who cooperated with prosecutors. But two weeks after trial it emerged that the government inadvertently left out two letters that Epps had sent from prison to a fellow prisoner and GD member.¹ The three pages of handwritten materials contain rationalizations for Epps's decision to cooperate, advice to his correspondent, and obscene drawings. One of the letters also states:

Now if I see it [illegible] im going to cop out and save myself. But im first going to try and get them on "tee" [illegible] [illegible] mistake. But if not im going to get Sundown BroLock and Lil-C[.] I don't want to fuck no one I grew up with and that on my Mom, Wife and my Child. . . . I tried to free a lot of guys but they had already made Statement. if they would had remain quiet they would be free. I got Aaron off this case and prove to them we never had on dealing.

The defendants argue that in this passage, "Epps basically claims that he had been and would continue to shape the prosecution to protect his friends and family and punish his enemies through lying and perjury." They contend that they could have used the letters to impeach Epps by showing that he was willing to use his role as cooperating co-defendant to settle old scores. In this regard they note that Epps had a motive to attack Armstead and Wilson: Armstead demoted Epps from his high-level position, and Wilson's complaint led to the demotion. The government responds that any impeachment value would have been cumulative of other impeachment at trial, where Epps was thoroughly dressed down before the jury as a liar, a braggart, and a thug. But the government concedes that no impeachment at trial tended to show that Epps was biased against some of his co-defendants or that he was willing to lie or provide selective testimony to punish his enemies.

If the government deliberately or inadvertently withholds evidence that is material and favorable to the defense, it violates the defendant's right to a fair trial, which is guaranteed by due process. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Boss v. Pierce, 263 F.3d 734, 739-40 (7th Cir. 20...