USA v. Shamah

• Decision Date: 12 October 2010
• Docket Number: No. 09-2767.,09-2767.
• Citation: 624 F.3d 449
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mahmoud SHAMAH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

624 F.3d 449

UNITED STATES of America, Plaintiff-Appellee,

v.Mahmoud SHAMAH, Defendant-Appellant.

No. 09-2767.

United States Court of Appeals,Seventh Circuit.

Argued May 28, 2010.

Decided Oct. 12, 2010.

COPYRIGHT MATERIAL OMITTED.

Helene B. Greenwald, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Anthony Pinelli, Attorney (argued), Chicago, IL, for Defendant-Appellant.

Before MANION, WILLIAMS, and HAMILTON, Circuit Judges.

WILLIAMS, Circuit Judge.

Mahmoud “Mike” Shamah was a Chicago police officer who decided, along with his partner Richard Doroniuk, that they could supplement their income by shaking down drug dealers. Using information given to them by an informant, they identified drug dealers and stole money and drugs from them. They were caught, and both were charged with conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), along with other charges. Doroniuk pleaded guilty, but Shamah was convicted by a jury.

Shamah appeals, arguing that he cannot be guilty under RICO because he was not an operator or manager of the Chicago Police Department and because his agreement with Doroniuk was to commit thefts, not robberies. Shamah also challenges his sentence, arguing that the robbery guideline was inapplicable; his sentence enhancements were inappropriate; and his sentence was substantively unreasonable because of the sentencing disparity between him and his partner.

We reject these arguments. We affirm Shamah's RICO conviction because the evidence was more than sufficient to show that Shamah played a daily role in directing the affairs of the police department and that the conspiracy between him and his co-conspirator was to rob drug dealers. We also affirm his sentence, finding that the district court properly applied the sentencing guidelines and enhancements, and the disparity in sentencing was not substantively unreasonable.

I. BACKGROUND

Mike Shamah and Richard Doroniuk were corrupt Chicago police officers. They worked as partners in the 22nd District on a tactical unit and would often patrol high-crime gang areas. In 2004, they began discussing the idea of keeping money they seized from suspected drug dealers during traffic stops and searches of premises.

From 2005 through October 2006, the partners put their scheme into action. If a suspect was unsure about the exact amount of cash he had on his person, Shamah and Doroniuk would inventory some of the cash and pocket the rest. They would take the money on the spot or withhold a portion of the money during the booking and inventory process back at the station. The officers also took drugs so they could plant them on people if a future stop or search did not establish probable cause for an arrest.

In May 2006, Shamah and Doroniuk began to work with drug dealer Larry Cross. Cross became their personal informant and guide to drug dealers who could be counted on to have large amounts of cash or drugs. Cross also became their go-to “John Doe” informant for the purposes of obtaining search warrants from state judges, meaning that he provided the basis for a warrant without being named. Several warrant searches were based on false information provided by Cross. During vehicle stops and premises searches, Shamah and Doroniuk used guns, handcuffs, and other police powers to break down doors and restrain suspects. The partners evenly split any proceeds once they determined if and in what amount Cross should be paid.

During trial, Doroniuk and Cross testified to their roles in the conspiracy. In addition to the testimony of FBI agents and surveillance officers, the government also introduced testimony of five victims: Cleottis Love, Brandon Lucas, Titus Bates, Matthew Smith, and Jermaine Benton. The first incident involved Love. In December 2005, an informant provided officers with information about drug dealing at Love's house. Doroniuk and Shamah entered this house without a warrant, planted cocaine on Love, arrested him, and kept a portion of the cash they found in his pockets. In March 2006, the second incident occurred. Shamah and Doroniuk went to the “Candy Store,” a well-known drug house. They kicked in the door and arrested multiple people, including Lucas, the owner of the Candy Store. He was handcuffed and had money taken from him. The third incident was in July 2006, when Cross told the officers that Bates was dealing crack cocaine from a specific room in a motel. Shamah and Doroniuk, along with some other Chicago police officers, rushed into the room while Bates was opening the door. He was arrested and placed in handcuffs. And the money and drugs he had in his pockets were stolen by Doroniuk. During the fourth incident, in August 2006, Shamah and Doroniuk, claiming they believed a car was stolen, approached it with their guns drawn. They arrested the passengers in the car, one of whom was Smith, who also testified about the incident. In addition, Doroniuk testified that he took Smith's cash and a small amount of marijuana at the scene, and later withheld some of the cash from inventory. Finally, Benton testified that in September 2006, Shamah and Doroniuk approached his car with their weapons drawn. Doroniuk testified that he and Shamah had smelled marijuana. Benton was arrested, and some of his cash was withheld from inventory.

Shamah and Doroniuk were eventually the targets of a Federal Bureau of Investigation (“FBI”) undercover investigation. As part of that investigation, Cross was told that large amounts of cocaine and money were being kept in a storage locker unit. Cross passed this information on to Shamah and Doroniuk. The two officers took Cross to a state judge, and Cross falsely testified to his personal knowledge of the contents of the storage unit. On June 13, 2006, having obtained a search warrant, Shamah and Doroniuk went with other police officers to the unit, found a bag that was filled with $20,000, took it, and never inventoried any of the money. Approximately two months later, the FBI set up a similar undercover scheme, and during a search they again stole money from a storage unit.

Shamah, Doroniuk, and Cross were arrested and charged with RICO conspiracy and civil rights conspiracies, possession of a firearm during and in relation to a violent crime, conspiracy to steal government funds, and two counts of theft of government funds. Doroniuk and Cross both pleaded guilty and testified as government witnesses at Shamah's trial. The jury acquitted Shamah of possessing a firearm during and in relation to a violent crime, but it convicted him of the remaining counts in the indictment. The district court sentenced Shamah to 232 months imprisonment, and he timely appealed.

II. ANALYSIS

A. Sufficiency of the Evidence Arguments

We review sufficiency of the evidence challenges by viewing the evidence in the light most favorable to the government and will reverse only if no reasonable factfinder could find the defendant guilty beyond a reasonable doubt. United States v. Morris, 576 F.3d 661, 666 (7th Cir.2009). We have frequently described a defendant posing this challenge as facing a “nearly insurmountable hurdle.” Id.; see United States v. Hach, 162 F.3d 937, 942 (7th Cir.1998) (“Only if the record is devoid of evidence from which a jury could find guilt will we reverse.”).

Shamah was convicted of conspiring to violate the substantive RICO statute. The RICO conspiracy provision makes it unlawful “to conspire to violate any of the provisions of subsection (a), (b), or (c)” of the RICO statute. 18 U.S.C. § 1962(d). Shamah was charged with conspiring to violate subsection (c), which makes it “unlawful for any person employed by or associated with [an] enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity of collection of unlawful debt.” 18 U.S.C. § 1962(c). To prove a violation of § 1962(c), the government must prove the following elements: (1) conduct (2) of an enterprise (3) through a pattern of racketeering activity. Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 963 (7th Cir.2000). Shamah challenges the sufficiency of the government's proof on the conduct and pattern of racketeering activity elements.

1. Sufficient Evidence of RICO Enterprise

To be liable under RICO, there must be “operation” of an “enterprise”. Shamah argues that the government failed to prove that he, a “lowly” police officer, played any role in directing the affairs of the Chicago Police Department, the charged enterprise. As an officer, he argues that he exercised no direction over the department because he had no authority to make command decisions, no supervisory powers over other officers, and no control over department-wide policies. He also argues that his actions could not rise to a level of criminal culpability because he was merely performing his assigned tasks as a police officer when he deployed his powers of arrest and seized contraband.

The statutory language of § 1962(c) does not define what it means “to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs.” 18 U.S.C. § 1962(c). In Reves v. Ernst & Young, the Supreme Court defined the meaning of “participate” and “to conduct” for § 1962(c), the substantive offense at issue here. 507 U.S. 170, 177-79, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). The Court held that although liability was not limited to those in the “upper management” of an enterprise, it must be shown that the defendant participated in the “operation or management” of the enterprise's affairs. Id. at 184-85, 113 S.Ct. 1163; United States v. Cummings, 395 F.3d 392, 397 (7th Cir.2005). To show participation, the Court stated that the person charged must have had “ some part in directing those affairs.” Reves, 507 U.S. at 179, 113 S.Ct. 1163 (emphasis in original); see ...