USA. v. Jackson

Decision Date23 March 2000
Docket Number98-2703,98-2715,98-2714,98-2716,98-2800,Nos. 98-2696,98-2799,98-2766,98-2705,98-2697,98-2821,98-2704,s. 98-2696
Citation207 F.3d 910
Parties(7th Cir. 2000) United States of America, Plaintiff-Appellee-Cross-Appellant, v. Harold JACKSON, Kevin Williams, Dion Lewis & Jathel Garrett, Defendants-Appellants-Cross-Appellees and Derrick Mallett, Richard Wash, Scott Davis, James Doty, Michelle Gaines, Clarence Haywood, Cedric Parks & James A. Yates, Defendants-Appellants. & 98-2965
CourtU.S. Court of Appeals — Seventh Circuit

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 510--George M. Marovich, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Posner, Chief Judge, and Diane P. Wood and Evans, Circuit Judges.

Posner, Chief Judge.

The government in 1995 indicted 39 members of the Gangster Disciples, a street gang operating in southwestern Chicago and the southern Chicago suburbs, on federal narcotics charges. Twelve of these individuals, convicted by a jury in the federal district court in Chicago after a three-month trial, appeal to us, challenging their convictions and heavy sentences--three of the defendants were sentenced to life in prison, and only four received sentences shorter than 20 years. The government has cross-appealed, complaining that several of the sentences were too short. Many issues are raised but few have sufficient merit to warrant discussion. The evidence of each defendant's guilt was clearly sufficient and the alleged trial errors were for the most part--though with an important exception--either nonexistent or clearly harmless.

Taking the evidence as favorably to the government as the record permits, as we are required to do, we have a gang some 6,000 strong engaged mainly in the sale of crack and powder cocaine, led by an Illinois state prison inmate named Larry Hoover. By the early 1990s the gang had revenues of some $100 million a year. As befits an operation of such magnitude, the gang had an elaborate structure. Hoover was assisted by a board of directors, and below the board were governors and regents having territorial jurisdictions, along with assistant governors, treasurers, security chiefs, and other officials all with defined responsibilities. The defendants in this case are drawn mainly from the leadership ranks (and include governors, assistant governors, and regents), although some of them merely assisted the leaders.

Some of the government's strongest evidence was obtained by electronic surveillance of Hoover. Microphones were concealed in the visitors' badges of Hoover's visitors--many of whom were gang officials--and the conversations captured on those microphones were relayed from the prison, which is in southern Illinois, to Chicago, and there recorded, and listened to, by federal agents. Two of the discussion-worthy issues raised by the defendants concern this electronic surveillance. A third issue relating to electronic surveillance (though not of Hoover) requires only the briefest of mentions. It is whether a warrant that authorizes "roving surveillance," such as the interception authorized here, pursuant to 18 U.S.C. sec. 2518(11), of calls to and from any cellular phones that one of the Gangster Disciples (Darryl Johnson) might use, violates the Fourth Amendment's requirement of particularity of description of the place to be searched. Cellular phones have no fixed locus and here were not even identified by a telephone number. But the cases hold that such roving surveillance is constitutional, United States v. Gaytan, 74 F.3d 545, 553 (5th Cir. 1996); United States v. Bianco, 998 F.2d 1112, 1120-25 (2d Cir. 1993); United States v. Petti, 973 F.2d 1441, 1443-45 (9th Cir. 1992); see also Michael Goldsmith, "Eavesdropping Reform: The Legality of Roving Surveillance," 1987 U. Ill. L. Rev. 401, 415-25, and we have nothing to add to their analysis of the issue.

The first issue we do want to discuss is whether the chief judge of the federal district court in the Northern District of Illinois (which is mainly Chicago) had jurisdiction to authorize the surveillance. Title III, the federal statute regulating electronic surveillance, authorizes an interception order by a judge "within the territorial jurisdiction of the court in which the judge is sitting." 18 U.S.C. sec. 2518(3). Hoover's prison is in the Southern District of Illinois and the defendants argue that therefore the judge lacked the power to issue the order. If this is right, the evidence obtained by the surveillance was inadmissible. 18 U.S.C. sec.sec. 2515, 2518(10)(a); see also United States v. Ojeda Rios, 495 U.S. 257, 260 n. 1 (1990). The government points out that so far as bears on this case "interception" is defined as "the aural or other acquisition" of the contents of a communication, 18 U.S.C. sec. 2510(4), and that an "acquisition" took place in the Northern District, since the agents first listened to the conversations in Chicago. This is literally true and has persuaded the other courts in which the issue has arisen to uphold the government's position, United States v. Denman, 100 F.3d 399, 402-04 (5th Cir. 1996); United States v. Rodriguez, 968 F.2d 130, 135-36 (2d Cir. 1992); see also United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994); cf. United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997), but it creates, as the government's lawyer acknowledged with refreshing candor at argument, a potential for abuse that resembles the familiar problem of "judge shopping" for conventional search and arrest warrants. Candace McCoy, "The Good-Faith Warrant Cases--What Price Judge- Shopping?," 21 Crim. L. Bull. 53, 62 (1985); see also United States v. Leon, 468 U.S. 897, 918 (1984). This is true even though the cases gloss "acquisition" to mean "first acquisition." United States v. Denman, supra, 100 F.3d at 403; United States v. Rodriguez, supra, 968 F.2d at 136. The government still could ask any federal judge in the United States to issue an interception order, and simply arrange for the intercepted communications to be relayed to the judge's district and listened to there by federal agents. The judge might be in Hawaii, the intercepted communication in Florida, and the investigation to which the interception pertained in Maine.

Although the potential for abuse is undeniable, it does not authorize us to rewrite the statute, especially because the defendants do not argue that the potential has ever become actual and because their position, while curing one problem, would create another--namely that interception orders would often have to be obtained from judges at locations wholly adventitious in relation to the investigation to which the interception pertained. Admittedly this is a feature of discovery practice as well, and so is not quite the anomaly that the government depicts it as. See, e.g., Fed. R. Civ. P. 45(a)(2). Still, it is sheer accident that Hoover was imprisoned in southern Illinois rather than in the Northern District of Illinois, or for that matter in Colorado or Indiana; the location of his prison bears no relation to the location of his and his confederates' crimes and of the government's investigation of those crimes. And this means that the privacy interest that the statute seeks to protect is likely to be better protected under the government's interpretation, because the judge who is familiar with the investigation is in a better position to appraise the materiality of the communications that the government wants to intercept.

Furthermore, although the parties have assumed that the reference to "the territorial jurisdiction of the court" is to the district in which the judge sits, this is not certain, since for many purposes the jurisdiction of a district court extends beyond the boundaries of the district. For example, the personal jurisdiction of a federal district court often extends beyond the district and even state boundaries, and indeed to the nation as a whole under statutes that provide for nationwide service of process. Some districts are coterminous with entire states that are much larger than other districts; compare the District of Montana with the Southern District of New York. The position for which the defendants contend would not cure the abuse that concerns them. This is a problem for Congress to solve if the problem is serious enough to warrant solution.

The next and most troublesome issue concerns the requirement of prompt judicial sealing of recordings of intercepted communications. Because tape recordings of conversations are powerful evidence yet susceptible to tampering that may be extremely difficult to discover, they must "be done in such way as will protect the recording from editing or other alterations." 18 U.S.C. sec. 2518(8)(a). To this end, the recording must be judicially sealed "immediately upon the expiration of the period of the order, or extensions thereof," id.; see United States v. Ojeda Rios, supra, 495 U.S. at 263; United States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995); United States v. Wong, 40 F.3d 1347, 1375 (2d Cir. 1994), and if it is not sealed immediately it can't be used in evidence unless the government offers a "satisfactory explanation" for the delay in sealing. 18 U.S.C. sec. 2518(8)(a); United States v. Ojeda Rios, supra, 495 U.S. at 262-65; United States v. Plescia, supra, 48 F.3d at 1463; United States v. Maxwell, 25 F.3d 1389, 1393 (8th Cir. 1994); United States v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992).

The recordings of Hoover's intercepted conversations were not sealed until 32 days after the expiration of the surveillance warrant. That was much too long to qualify as an immediate sealing, United States v. Williams, 124 F.3d 411, 429-30 (3d Cir. 1997); United States v. Wilkinson, 53 F.3d 757, 759-60 (6th Cir. 1995); United States v....

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