United States v. Chester

• Decision Date: 08 August 2017
• Docket Number: No. 13 CR 00774,13 CR 00774
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. GREGORY CHESTER, ARNOLD COUNCIL, PARIS POE, GABRIEL BUSH, WILLIAM FORD, and DERRICK VAUGHN, Defendants.
• Court: U.S. District Court — Northern District of Illinois

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY CHESTER, ARNOLD COUNCIL, PARIS POE,
GABRIEL BUSH, WILLIAM FORD,
and DERRICK VAUGHN, Defendants.

No. 13 CR 00774

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 8, 2017

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER (CORRECTED)

In this case, nine defendants were charged in a Superseding Indictment ("SI") on September 14, 2014. SI, ECF No. 161. Three defendants pleaded guilty before trial, leaving the charges as follows: Count One charged Gregory Chester, Arnold Council, Paris Poe, Gabriel Bush, William Ford, and Derrick Vaughn with conspiracy to violate RICO, see 18 U.S.C. § 1962(d); Count Two charged Council and Poe with a Violent Crime in Aid of Racketeering ("VICAR"), namely, the murder of Wilbert Moore, see 18 U.S.C. § 1959; Count Three charged Bush with the VICAR murder of victim Terrance Anderson, see id.; Counts Four and Five charged Vaughn with the VICAR murder of Antonio Bluitt and Gregory Neeley see id.; Count Six charged Poe with Obstruction of Justice by Murder, see 18 U.S.C. § 1503, as to victim Keith Daniels; Count Seven charged Council with aiding and abetting the use, carrying, and brandishing of a firearm during a robbery, see 18 U.S.C. § 924(c)(1)(A) & (2); and Counts Eight through Ten charged Ford with possession of a firearm by a felon, possession with intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking crime, respectively, see 18 U.S.C. § 922(g), 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 924(c)(1)(A). The

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Superseding Indictment was partially superseded once more days before trial; in the Second Superseding Indictment ("SSI"), which had no "counts" enumerated, the grand jury reasserted the Count Six charge against Poe and added allegations specifically identifying the proceedings he was charged with obstructing. See SSI, ECF No. 771. After a four-month trial, on January 4, 2017, the jury found each of the six trial defendants guilty on each Count against him, with the exception of Count Ten, of which defendant Ford was acquitted. The defendants have filed motions for a judgment of acquittal, see Fed. R. Crim. P. 29, and for a new trial, see Fed. R. Crim. P. 33. For the reasons explained below and at trial, the motions are denied. The jury's verdicts stand.

BACKGROUND

In summary, the government alleged that the defendants, most of whom grew up in the same housing projects on Chicago's south side and were members of gangs—more accurately, in some cases, gang factions—formed a criminal enterprise called the Hobos, which was especially violent, strategic, and lucrative. According to the government, the Hobos banded together with the common purposes of accumulating wealth, expanding their sphere of power, and increasing their reputation and status; they carried out those purposes through a pattern of racketeering acts committed by the defendants and their associates,¹ including murders, shootings, home

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invasions, drug trafficking, and robberies. Some of those acts were separately charged in Counts Two through Ten.

Trial was scheduled for September 6, 2016. About a week before the trial, defendant Poe moved for the dismissal of Count Six from the Superseding Indictment because it failed to allege the obstruction of any specific pending judicial proceeding. Poe Mot., ECF No. 747; Govt. Resp., ECF No. 753. As the Court mulled Poe's potentially meritorious argument, the government scurried to the grand jury, which returned a Second Superseding Indictment against Poe on September 1, mooting Poe's motion. The Second Superseding Indictment did not repeat Counts One through Five or Seven through Ten of the First Superseding Indictment, and it was returned against only Poe. Enumerating no count, it simply charged that Poe murdered Keith Daniels in order to obstruct the then-pending drug cases against Gregory Chester and co-defendant Lance Dillard (Daniels was the confidential informant to whom they sold drugs), see 13 CR 288 and 289 (N.D. Ill.), as well as the grand jury investigation in this case, 11 GJ 740. At a status hearing on September 2, 2016, this Court noted that Poe's argument had been "well founded" as to the technical deficiency of Count Six, but that the defect was cured by the new charge, with no prejudice to Poe, who was well aware from the discovery process of which judicial proceedings he was alleged to have obstructed. See Tr. at 18, ECF No. 1200. The Court overruled Poe's objection that as a matter of right he could not be tried for 30 days after the filing of a superseding indictment (Poe does not specifically challenge that ruling in his pending motions.) Id. at 16. Poe was arraigned on September 6, 2016, before the jury selection process began. See Tr. at 5, ECF No. 1201. The government did not formally withdraw Count Six of the

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superseding indictment, but the Court confirmed: "the trial of that [new] charge will proceed today in lieu of the trial on the Count Six of the . . . first superseding indictment."² See id. at 6.

Also on the eve of trial, defendant William Ford expressed his desire to plead guilty to Count One. As his co-defendant Stanley Vaughn very recently had done, Ford provided the government and the Court, on August 24, 2016, with a draft plea declaration as to Count One. Ford acknowledged a maximum penalty of 20 years' imprisonment on the conspiracy count. At the hearing on Ford's request to change his plea to Count One, see Tr., ECF No. 1198, the government maintained that Ford was possibly subject to a maximum of life imprisonment on Count One, depending on any Additional Findings the jury made beyond a reasonable doubt about specific underlying racketeering acts Ford was alleged to have engaged in. The Court agreed that it would need to advise Ford as part of the Rule 11 colloquy that, pursuant to 18 U.S.C. § 1963(a), the maximum statutory penalty was, potentially, life imprisonment, pending the proof of certain facts beyond a reasonable doubt.³ See id. at 4-6. After an extensive colloquy

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with the Court, Ford's counsel stated: "Well, my belief is that if Mr. Ford were to plead guilty and potentially be admonished that he was facing— that he could be facing life that he would be waiving—that's my opinion, that he would actually be waiving the argument that he's not potentially facing life." See id. at 8. Counsel therefore agreed, on behalf of Mr. Ford, that "[w]e cannot go forward, at least today." Id. Mr. Ford made no further efforts to change his plea, and he went to trial beginning on September 6, 2016 along with the five remaining codefendants.

On January 4, 2017, a jury returned verdicts of guilty on all counts against all six trial defendants as charged in the First and Second Superseding Indictments, with the exception of Count Ten (possession of a firearm in connection with drug trafficking activity), of which the only charged defendant, William Ford, was acquitted. After reaching its general verdicts, the jury also returned "Additional Findings" against each defendant in order to fulfill the mandate that any facts that effectively raise the statutory maximum penalty be found by a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Smith, 308 F.3d 726, 740 (7th Cir. 2002) (condoning special verdict form for finding of drug quantity). The jury had been instructed orally once, before deliberations, on both the General Verdicts and the Additional Findings. See Trial Tr. Vol. 56 at 13411-13434. The jury was instructed, however, that it should not access the written Additional Findings Instructions and Verdict Forms unless and until it first completed all the general verdicts and found any defendant guilty. See id. To

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reinforce this instruction, the Additional Findings Instructions and Verdict Forms were sealed in a separate envelope with the instruction to open it only after all the General Verdict Forms had been completed and one or more defendants had been found guilty of one or more offenses. The dates of the jurors' signatures on the respective verdict forms suggest they followed those instructions and did not complete any Additional Findings Verdicts until they had completed all of the General Verdict Forms. See Redacted Jury Verdict and Additional Findings Forms, ECF No. 1089.⁴

The defendants now file motions for judgment of acquittal, see Fed. R. Crim. P. 29, and for a new trial, see Fed. R. Crim. P. 33. Each defendant has adopted his co-defendants' motions insofar as they pertain to him and has also incorporated and re-asserted his own objections and motions made before and during the trial.

DISCUSSION

As a preliminary matter relevant to all the post-trial motions, the government asks the Court to disregard the defendants' motions to the extent they incorporate their own previous arguments or the arguments of other defendant(s), or rest on "conclusory and barebones allegations of error." Govt. Resp. 68, ECF No. 1207. But a defendant's incorporation of his own arguments made before or during trial is permitted after trial. The process requires the review of multiple additional motions, briefs, and written and oral rulings, but the Seventh Circuit apparently allows this approach to raising arguments in the district court, United States v. Brown, 726 F.3d 993, 1005 (no waiver where "new trial motion incorporated by reference all objections and positions taken during trial"), although not in the appellate court, see DeSilva v. DiLeonardi, 181 F.3d 865, 866 (7th Cir. 1999) (because "incorporation is a pointless imposition on the

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court's time," "[a] brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record"). The inefficiencies of this process would hardly be remedied by requiring the defendants to set out at length in their post-trial briefs arguments that have already been developed and...