US v. Doyle

• Decision Date: 01 August 1997
• Docket Number: No. 95-3367.,95-3367.
• Citation: 121 F.3d 1078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William DOYLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

121 F.3d 1078

UNITED STATES of America, Plaintiff-Appellee, v. William DOYLE, Defendant-Appellant.

No. 95-3367.

United States Court of Appeals, Seventh Circuit.

Argued February 12, 1997.

Decided August 1, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alex Menchaca (argued), Office of the United States Attorney, Criminal Division, Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Marianne Jackson (argued), Chicago, IL, for Defendant-Appellant.

Before CUMMINGS, BAUER, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

William Doyle was named in Counts One, Two, and Three of a second superseding indictment which charged thirty-eight defendants with federal crimes in conjunction with their participation in the El Rukn organization, a Chicago street gang. Counts One and Two alleged conspiracy and substantive violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) & (d). Count Three charged Doyle with engaging in a narcotics conspiracy, in violation of 21 U.S.C. §§ 841 and 846. A jury found Doyle guilty on all three counts. After a hearing on their post-trial motions, the district court granted Doyle and two of his co-defendants' motion for a new trial based on allegations of prosecutorial misconduct. Doyle was again found guilty on all counts in his retrial. Doyle was sentenced to life imprisonment on Count Three and to two concurrent twenty-year sentences on each of Counts One and Two. Doyle appeals from his conviction. He raises two double jeopardy arguments concerning his retrial, and he argues that the district court abused its discretion in limiting the scope of opening statements during his second trial. We affirm.

Background

The original indictment in this case, returned by a federal grand jury on October 26, 1989, consisted of 305 pages. The indictment contained 175 counts and named 38 defendants, including Doyle, most of whom were allegedly members or associates of the El Rukn gang. It charged more than 250 factually separate criminal acts committed over a period of 23 years in many different locations. In United States v. Andrews, 754 F.Supp. 1161, modified, 754 F.Supp. 1197 (N.D.Ill.1990), Judge Marvin Aspen severed the case into five trials. This appeal concerns the portion of the severed indictment designated as "Trial Two," which was before Judge Suzanne Conlon. Five defendants were involved in Trial Two: Henry Andrews, George Carter, William Doyle (appellant here), J.L. Houston, and Derrick Porter. On April 3, 1991, the grand jury returned a second superseding indictment ("the indictment"), which resulted in the renumbering of some counts and some predicate acts. Doyle was charged in Counts One, Two, and Three of the indictment.

Count One, the RICO conspiracy charge, identified the El Rukn organization as the racketeering enterprise, named 37 defendants and 35 unindicted coconspirators, and alleged 174 overt acts in furtherance of the racketeering conspiracy. The indictment alleged that one of the purposes of the racketeering enterprise was to acquire power for the enterprise in the Chicago metropolitan area and in other cities throughout the United States through drug trafficking, murder, extortion, robbery, fraud, and the acquisition and intended use of weapons and explosives. Under the direction and control of Jeff Fort, the named defendants and other unindicted coconspirators allegedly conducted the affairs of the El Rukn organization through countless acts of racketeering, including murder, attempted murder, conspiracy to commit murder, kidnaping, wide-scale drug trafficking, obstruction of justice (including one attempt to bribe a judge), witness intimidation, retaliation and tampering. Count Two, the substantive RICO count, named thirty-three defendants and thirty-eight unindicted coconspirators in the enterprise. It charged Doyle and the other named defendants with conducting and participating in the conduct of the El Rukn organization's affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c). Count Two alleged sixty-four acts of racketeering including murder, attempted murder, intimidation, and other acts of violence. Count Two charged Doyle with participating in eleven predicate acts, including murder and attempted murder, in furtherance of the El Rukn organization. Count Three, the narcotics conspiracy count, charged thirty-seven defendants and named thirty-five unindicted coconspirators and alleged that they participated in a conspiracy to deal in narcotics from 1966 until 1991.

The El Rukn organization, like most complex street gangs, was hierarchically structured. The hierarchy consisted of "Generals," "Officers," "Ambassadors," and "Riders." Doyle was an "Officer" in the El Rukn organization from approximately 1980 to 1983. The Officers were responsible for enforcing the gang's rules and for fighting gang rivals, which they accomplished through murders, shootings, beatings and intimidations. From approximately 1983 to 1989, Doyle was a "General" in the El Rukn organization. Generals were primarily responsible for running the organization under the direction of Fort.

The first trial in this case occurred in July and August 1991. On August 29, 1991, Doyle was found guilty on all three counts.¹ On May 18, 1992, Doyle and two of his co-defendants, Henry Andrews and George Carter, filed a joint motion to vacate their judgments of conviction and to dismiss based on double jeopardy, or, alternatively, for a new trial based on allegations of newly-discovered prosecutorial and witness misconduct.² These motions were based on alleged Brady and Giglio violations. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (imposing obligation on prosecutors to disclose material exculpatory information which is favorable to the defense); see also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (requiring prosecutors to provide the defense with evidence relating to the credibility of prosecution witnesses). After a lengthy hearing on the motion, Judge Conlon concluded that the evidence illustrated that the defense's allegations of misconduct had "some grounding in reality." United States v. Andrews, 824 F.Supp. 1273, 1291 (N.D.Ill.1993) (quoting United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir.1993)). She noted that Giglio required the prosecution to disclose all material information "casting a shadow on a government witness's credibility," id. (citing Bernal-Obeso, 989 F.2d at 333-34), and that the suppressed evidence "would have provided a fertile basis for defense counsel to probe bias and motives," id. She ruled that it was "reasonably probable that if effectively used, the suppressed evidence may have caused the jury to reject some or all of the testimony of the El Rukn inmate witnesses." Id. (citing United States v. Wallach, 935 F.2d 445, 454 (2d Cir.1991)). She therefore ordered that a new trial was required in the interest of justice. Id. Additionally, the defendants' motion to dismiss on double jeopardy grounds was dismissed by Judge Conlon.

Doyle's second trial began on March 6, 1995.³ Prior to trial, the government filed a motion in limine asking the district court to restrict the defense from making reference to allegations of prosecutorial misconduct during opening statements. The district court ruled orally on that motion in favor of restricting the opening statements. On March 22, 1995, the jury found Doyle guilty on all three counts. The jury also found Doyle guilty, by special verdict, of ten racketeering acts, including murder and attempted murder. On September 20, 1995, Judge Conlon sentenced Doyle to life imprisonment on Count Three and concurrent twenty-year sentences on each of Counts One and Two. Doyle filed his notice of appeal in this Court on September 28, 1996.

Analysis

Doyle presents three arguments on appeal: (1) whether the Fifth Amendment's Double Jeopardy Clause bars retrial in the absence of a defense motion for mistrial where prosecutors engaged in misconduct in order to prevent an acquittal they believed at the time was likely to occur in the absence of such misconduct; (2) whether double jeopardy bars Doyle's trial for drug conspiracy when he had previously pleaded guilty to federal charges involving the "same" drug conspiracy and RICO organization; and (3) whether the district court abused its discretion in granting the government's motion in limine to bar Doyle from mentioning prosecutorial misconduct during opening statements. We conclude that none of these arguments provide a basis for affording Doyle relief.

A. Double Jeopardy and Prosecutorial Misconduct

We review the district court's double jeopardy ruling de novo. United States v. Asher, 96 F.3d 270, 273 (7th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 786, 136 L.Ed.2d 729 (1997). In his post-trial motion, Doyle argued, based on Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) and dicta in United States v. Wallach, 979 F.2d 912, 916 (2d Cir.1992), cert. denied, 508 U.S. 939, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993), that double jeopardy barred his retrial because the government's misconduct was deliberate and intentional and undertaken to prevent an acquittal the government believed at the time was likely to occur absent the misconduct. In rejecting the double jeopardy argument, Judge Conlon refused to apply the expansion of Kennedy proposed by the Wallach dicta. For the following reasons, we agree.

The Double Jeopardy Clause of the Fifth Amendment provides: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after...