USA v. Souffront, Kent R., 080603 FED7, 00-2837

Docket Nº:080603 FED7, 00-2837
Party Name:USA v. Souffront
Case Date:August 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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USA v. Souffront, Kent R.

00-2837

FED7

8/6/2003

In the United States Court of Appeals For the Seventh Circuit UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSE SOUFFRONT, also known as BAM BAM, JORGE MARTINEZ, also known as DANNY, also known as CHICO, GUSTAVO COLON, also known as EL MAGNATE, also known as BOSS, also known as GINO, also known as LORD GINO, also known as JEFE, and MARISOL COLON, also known as MARI, Defendants-Appellants.

Nos. 00-2837, 00-3017, 00-3070, and 00-3514

AUGUST 6, 2003

ARGUED JANUARY 9, 2001

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 659—Wayne R. Andersen, Judge.

Before FLAUM, Chief Judge, HARLINGTON WOOD, JR. and EASTERBROOK, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

Fourteen members of the Latin Kings street gang, including the four above-named defendants, were indicted on numerous drug-related offenses, including conspiracy with intent to distribute cocaine, heroin, and marijuana under 21 U.S.C. § 846, engaging in a continuing criminal enterprise (“CCE”) under 21 U.S.C. § 848(a), knowingly and intentionally using a telephone in causing and facilitating the commission of a felony under 21 U.S.C. § 843(b), distributing cocaine under 21 U.S.C. § 841(a)(1), and attempting to distribute cocaine in violation of 21 U.S.C. § 846. Jose Souffront (“Souffront”), Jorge Martinez (“Martinez”), Gustavo Colon (“Colon”),1 and Marisol Colon (“Marisol”), were tried before a jury and found guilty. Of the remaining ten defendants, seven, including Wilfredo Escobar (“Escobar”) and Rene Herrera (“Herrera”), pleaded guilty prior to trial, the eighth was granted a motion to sever his trial, the ninth is a fugitive, and the tenth was dismissed from the indictment because he suffered severe brain damage in a drug-related beating.

The defendants, individually and collectively, appeal numerous issues. We reject all their arguments as the evidence of defendants’ guilt was more than sufficient and the alleged trial errors were either nonexistent or clearly harmless. We affirm in all respects.

I. BACKGROUND

We recount the basic facts and elaborate as called for in each specific issue.

In 1972, at age eighteen, Colon was sentenced to 30 to 60 years in prison for murder. See People v. Colon, 314 N.E.2d 664, 666 (Ill. App. Ct. 1974). That same year Colon became the leader of the Latin Kings street gang, a position he has retained since that time.2 Although incarcerated in the Illinois Department of Corrections, Colon directed and controlled the narcotics-related activities of the gang. The charges from this particular indictment pertain to a gang-related conspiracy from 1995 to September 17, 1997. Colon maintained his control through telephone calls and personal visits with his wife Marisol. He made telephone calls almost every evening to Marisol, who would often conference in other members of the conspiracy, including Souffront and Martinez. Under prison policy, prior to any inmate making a call, a recording is played which states that all conversations, except for calls to attorneys, may be recorded and monitored. Approximately seventy of Colon’s telephone calls were played at trial.

Marisol served as Colon’s advisor, informing him of the distribution activities of the conspiracy and facilitating communications between Colon and his key subordinates, Souffront, Martinez, and Escobar. Marisol received weekly payments through “street taxes,” which represented a portion of the sales of the illegal drugs. Escobar testified that the payments to Marisol started at $500 a week for the first several weeks and then ranged from $500 to $1500 a week for the duration of the conspiracy.

Souffront acted as a “regional,” or street boss, overseeing gang activity and ordering punishment for members who failed to follow gang law, in addition to keeping records of the drug sales. Colon demoted Souffront after police executed a search warrant at Souffront’s apartment and recovered approximately 34 grams of powder cocaine, 21 grams of crack cocaine, and a .38 caliber handgun. After Colon replaced Souffront with Martinez as regional, Souffront withdrew from the conspiracy in February 1996 when Colon ordered him to be shot as punishment for leaving incriminating evidence in his apartment.

Herrera was Colon’s main drug supplier. Herrera testified that during the time period involved, he delivered “a little bit over 44” kilograms of cocaine to Souffront, Escobar, and Martinez. There was also testimony that Escobar purchased at least 1 kilogram of cocaine from Ariel Ginjuama and 5 kilograms from Fernally Llanos. Escobar stated in his plea agreement that he was involved in the purchase of over 150 kilograms of powder cocaine, based on his grand jury testimony that during the eight months prior to his arrest in February 1997, he purchased an average of 5 kilograms of cocaine a week from Herrera. However, the district court judge based his sentencing determination on Herrera’s 44 kilograms, and the 6 kilos Escobar purchased from the other two dealers, finding that Colon, Marisol, and Martinez were responsible for between 50 and 150 kilograms of cocaine. Colon was sentenced to life in prison, Martinez to 400 months, Souffront to 240 months, and Marisol to 120 months.

One of the primary issues raised on appeal, that of the prosecutor’s failure to disclose exculpatory or impeachment evidence, originates from Martinez’s sentencing hearing on January 20, 1999. The Assistant United States Attorney (“AUSA”) requested that sentencing be postponed and that arguments be heard in camera. The district court judge granted the requests and an in camera hearing was held that day with the AUSA and counsel for Martinez. The AUSA stated that he had recently learned of a potential problem with one of the law enforcement officers who participated in the search of Souffront’s apartment and had testified at trial, Chicago police officer Jon Woodall (“Woodall”). Because Woodall was the subject of an active, ongoing criminal investigation, the AUSA did not identify him at that time and requested that all proceedings involving Woodall be held in camera until Woodall was indicted. The district court judge had a transcript prepared of the in camera hearing and ordered it to be read by all defense counsel who were not present at the hearing. Because the investigation was ongoing, the government presented a motion moving for the in camera and ex parte examination of documents relating to the investigation. The government outlined the nature of the investigation and impeachment evidence and suggested that the district court judge determine whether the impeachment evidence would have been material at trial without disclosing the evidence to the defendants.3

Based on a review of the material submitted by the government, the district court judge concluded that Woodall’s credibility was compromised, and, absent full disclosure to the defendants, his testimony should be struck from the record. The government argued that the testimony should not be stricken and that the parties could make a determination as to whether Woodall’s credibility was material to the outcome of the trial without disclosing the evidence, maintaining that disclosure would compromise the ongoing investigation. The judge rejected this proposal and informed the government that if they were unwilling to disclose the materials relating to the investigation of Woodall, the judge would be forced to order a new trial. Some of the materials were eventually presented to defendants subject to a protective order. However, Judge Andersen ruled that several of the documents did not need to be disclosed because he determined that, even under the broadest possible interpretation of the government’s obligation to disclose exculpatory or impeaching evidence, there were several documents which would not have been discoverable under Giglio v. United States, 405 U.S. 150, 154 (1972) (stating that materiality of the evidence is required and that undisclosed evidence “possibly useful to the defense but not likely to have changed the verdict” is not material).

In July 1999, defendants filed a motion for a Giglio hearing. On September 27, 1999, defendants filed a supplemental motion for a Giglio hearing and new trial, presenting six issues concerning withheld evidence4 and arguing that the withholding of the evidence prejudiced their ability to defend themselves at trial. Those allegations related not only to Woodall’s credibility but to alleged activities of a Bureau of Alcohol, Tobacco, and Firearms (“ATF”) agent, and alleged perjury of one of the witnesses at trial.

In their joint brief, defendants contend: (1) the prosecutors were guilty of misconduct under Giglio by failing to disclose six instances of withheld evidence; (2) the district court erred in admitting into evidence two photographs, one recovered during the search of Souffront’s residence which showed Souffront, Martinez, and a third individual holding handguns, and the second, one of Colon, Martinez, and Escobar, taken at the Pontiac Correctional Institution; (3) their constitutional rights were violated under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the indictment did not allege drug quantities; (4) their sentences pursuant to 21 U.S.C. § 841(a) were in violation of Apprendi; and (5) the district court erred under United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vacated on reh’g en banc by 165 F.3d 1297 (10th Cir. 1999), and violated 18 U.S.C. § 201(c)(2) by allowing cooperating codefendants Escobar and Herrera and witness Santiago to testify in exchange for lenient sentencing recommendations.

In addition to the joint brief, Colon, Martinez, and Marisol filed separate briefs.5 Colon separately appeals five issues, maintaining that: (1) his trial should have been severed from...

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