United States v. Hardin, Kiymiko A. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1175, 99-1224, 99-1261, and 99-1285
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KIYMIKO A. HARDIN, KEITH L. ROBINSON,
GREGORY SALLIS, and JOELL JORDAN,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 98-CR-60--Thomas J. Curran, Judge.
Argued January 7, 2000--Decided March 30, 2000
Before POSNER, Chief Judge, and ROVNER and EVANS,
Circuit Judges.
EVANS, Circuit Judge. In addition to some
garden-variety issues, the appeal from this
multiweek, multidefendant drug trafficking trial
presents an interesting question about whether a
provision in the continuing criminal enterprise
statute is a mere penalty enhancement or an
element of the crime. On which side of the line
the item falls is rather important, of course. An
element of the crime must be charged in the
indictment, submitted to a jury, and proved
beyond a reasonable doubt. See, e.g., Jones v.
United States, 119 S. Ct. 1215, 1219 (1999). A
sentencing factor, by contrast, need not be set
forth in the indictment, may be decided by the
judge, and must be proved only by a preponderance
of the evidence or perhaps in extreme
circumstances by clear and convincing evidence.
See, e.g., Almendarez-Torres v. United States,
118 S. Ct. 1219, 1223 (1998); United States v.
Watts, 117 S. Ct. 633, 637 (1997).
The Supreme Court held in Jones that
subsections of the federal carjacking statute, 18
U.S.C. sec. 2119, that allow steeper penalties if
the crime resulted in serious bodily injury or
death must be treated as distinct elements of the
crime rather than as sentencing factors. 119 S.
Ct. at 1228. Jones has spawned a flurry of
challenges to other criminal laws from defendants
across the country who argue that statutory
provisions long assumed to be sentencing factors
actually are elements. A handful of these appeals
have been successful,/1 but most have not./2
In this case Keith L. Robinson brings a Jones-
inspired attack on 21 U.S.C. sec. 848, the
continuing criminal enterprise (CCE) statute. A
jury found that Robinson had engaged in a
continuing criminal enterprise as defined in sec.
848(c). In the district court, Judge Curran
determined that Robinson satisfied sec. 848(b)(1)
as a principal organizer and leader of the
enterprise and sec. 848(b)(2)(A) because he was
involved in trafficking at least 10 kilograms of
crack cocaine (well in excess of the quantity
required to trigger the statute). As called for
by sec. 848(b), Judge Curran sentenced Robinson
to life in prison.
Robinson, one of the four appellants in this
case, argues that sec. 848(b)’s criteria
regarding principal involvement and drug quantity
constitute elements of the crime and are not mere
sentencing factors within the purview of the
judge. Though decisions on whether Jones applies
to other laws are popping up every few weeks in
the Federal Reporter, as of this writing this
appears to be the first Jones challenge to the
CCE statute.
Because this circuit previously said that sec.
848(b) is a sentencing enhancement provision,
United States v. Kramer, 955 F.2d 479, 484 n.4
(7th Cir. 1992), and because Jones did not come
down until after Robinson’s trial and sentencing,
it is no surprise that he did not mention this
issue earlier. Nonetheless, by failing to raise
the argument in the district court, Robinson can
succeed on appeal only if (1) there was error,
(2) the trial court’s error was plain at the time
of the appeal, and (3) the error affected
Robinson’s substantial rights. See United States
v. Ross, 77 F.3d 1525, 1538-39 (7th Cir. 1996).
Whether a statutory provision constitutes a
substantive element of the offense or a
sentencing factor generally depends on what
Congress intended; what Congress intended is
determined by examining the statute’s language,
structure, subject matter, context, and history.
See Almendarez-Torres, 118 S. Ct. at 1223.
The relevant portions of 21 U.S.C. sec. 848
read as follows:
(a) Penalties; forfeitures. Any person who
engages in a continuing criminal enterprise shall
be sentenced to a term of imprisonment which may
not be less than 20 years and which may be up to
life imprisonment . . . except that if any person
engages in such activity after one or more prior
convictions of him under this section have become
final, he shall be sentenced to a term of
imprisonment which may not be less than 30 years
and which may be up to life imprisonment . . . .
(b) Life imprisonment for engaging in continuing
criminal enterprise. Any person who engages in
a continuing criminal enterprise shall be
imprisoned for life and fined in accordance with
subsection (a), if--
(1) such person is the principal administrator,
organizer, or leader of the enterprise or is one
of several such principal administrators,
organizers, or leaders; and
(2)(A) the violation referred to in subsection
(c)(1) involved at least
300 times the quantity of a substance described
in subsection 401(b)(1)(B) of this Act [21 USCS
sec. 841(b)(1)(B)], or
(B) the enterprise, or any other enterprise in
which the defendant was the principal or one of
several principal administrators, organizers, or
leaders, received $10 million dollars in gross
receipts during any twelve-month period of its
existence for the manufacture, importation, or
distribution of a substance described in section
401(b)(1)(B) of this Act [21 USCS sec.
841(b)(1)(B)].
(c) "Continuing criminal enterprise" defined.
For purposes of subsection (a), a person is
engaged in a continuing criminal enterprise if--
(1) he violates any provision of this title or
title III the punishment for which is a felony,
and
(2) such violation is a part of a continuing
series of violations of this title or title III--
(A) which are undertaken by such person in
concert with five or more other persons with
respect to whom such person occupies a position
of organizer, a supervisory position, or any
other position of management, and
(B) from which such person obtains substantial
income or resources.
The language of sec. 848(b) suggests that
Congress intended it to be a sentencing
enhancement, not an element of the crime. First,
the title of the subsection--"Life imprisonment
for engaging in continuing criminal enterprise"--
emphasizes sentencing. Second, the body of the
subsection does not define what it means to
engage "in a continuing criminal enterprise."
That definition is found in sec. 848(c), where
Congress was most likely to have placed all the
elements. Third, the phrase "shall be imprisoned"
typically divides the (preceding) elements of the
crime from the (subsequent) sentencing factors.
What Robinson claims are elements fall on the
wrong side of that boundary phrase.
The structure of sec. 848(b) indicates that it
is intended to be a sentencing enhancement, not
an element. Subsection (c) defines the crime.
Subsection (a) lays out the basic sentencing
range (20 years to life) and adds a sentencing
enhancement (30 years to life) if the defendant
has a prior drug conviction. Likewise, subsection
(b) adds a sentencing enhancement (life) if the
defendant was a key player in the CCE and if the
CCE involved lots of drugs or a lot of profits.
Reading subsections (a) and (b) as both
sentencing provisions that rely on subsection (c)
makes more sense than reading subsection (a) to
rely in full on subsection (c), but reading
subsection (b) to rely in part on subsection (c)
and to stand in part on its own. This is
bolstered by the language in sec. 848(b) that
mirrors the wording in sec. 848(a). Subsection
(a) begins: "Any person who engages in a
continuing criminal enterprise shall be sentenced
. . . ." Subsection (b) begins: "Any person who
engages in a continuing criminal enterprise shall
be imprisoned . . . ." This identical language
suggests that, like subsection (a), subsection
(b) is a penalty provision.
The subject matter of sec. 848(b) tilts in
favor of a sentencing factor. Subsection (b) does
not criminalize additional types of conduct, but
mandates the maximum sentence for defendants
whose behavior is an aggravated form of the basic
conduct specified in subsection (c). A bigger
penalty for someone who has a bigger role in a
scheme involving a big amount of illegal drugs or
a big amount of illicit profits looks more like
a sentencing enhancement than a distinct
substantive element. (At issue in Robinson’s
mandatory life sentence are level of involvement
and quantity of drugs; the alternative factor in
sec. 848(b)(2)(B) regarding the size of profits
is not in play.)
Level of culpability has long been considered a
sentencing factor. Two individuals convicted of
the same crime generally will not receive
identical sentences if one was more deeply
enmeshed in the illegality than the other. "’Role
in the offense’ is a traditional determination,
made in every sentencing, which long antedates
the Guidelines." United States v. Schultz, 14
F.3d 1093, 1099 (6th Cir. 1994). The sentencing
guidelines incorporate that tradition, bumping up
the sentence of a defendant who played an
aggravated role in the offense, see U.S.S.G. sec.
3B1.1, and shaving off a bit of time for a
defendant who played a minimal part, see U.S.S.G.
sec. 3B1.2. Surely the sort of sentencing factor
properly created through congressional delegation
to the Sentencing Commission, see Mistretta v.
United States, 488 U.S. 361 (1989), also may be
imposed directly by Congress.
Drug quantity also is a traditional sentencing
factor. Under 21 U.S.C. sec. 841(b), the bigger
the amount of illegal drugs, the bigger the
penalty. "This court has held consistently that
the quantity of drugs involved in a narcotics
case does not constitute a substantive element of
the drug offense." United States v. Trujillo, 959
F.2d 1377, 1381 (7th Cir. 1992). Were we to view
the situation differently, we would, as noted
last week, be embarking on a path that would lead
to a "dubious destination." United States v.
Jackson, 2000 WL 298575 (7th Cir. March 23,
2000).
The context of sec. 848(b) also supports the
view that it is a penalty enhancement, not a
substantive element. As explained in sec. 848(a),
any defendant convicted on a CCE charge must be
sentenced from 20 years to life in prison.
Subsection (b) does not expose a defendant to
greater punishment than he already might have
received, but makes the existing maximum sentence
the minimum sentence, as well, for a defendant
who played an aggravated role in the CCE. The
Supreme Court has sent mixed signals on whether
a greater danger is posed by a provision that
increases the mandatory minimum sentence or by a
provision that increases the possible maximum
sentence. Compare Almendarez-Torres, 118 S. Ct.
at 1231 ("the risk of unfairness to a particular
defendant is no less, and may well be greater,
when a mandatory minimum sentence, rather than a
permissive maximum sentence, is at issue"), with
McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)
(defendants’ argument that a provision is really
an element of the offense "would have at least
more superficial appeal" if the measure in
question "exposed them to greater or additional
punishment"). The bottom line is that the Supreme
Court has treated both types of laws as
sentencing factors, including measures like this
one that trigger a minimum sentence that falls
within the range already laid out in the statute.
Id. at 87-93.
The legislative history offers further evidence
that Congress meant sec. 848(b) to be a penalty
enhancement. When added in 1986 to sec. 848,
which did not originally contain a mandatory life
sentence, subsection (b) was titled "Continuing
Criminal Enterprise Enhanced Penalties." Anti-
Drug Abuse Act of 1986, Pub. L. No. 99-570, sec.
1253, 100 Stat. 3207. Lawmakers characterized the
legislation as providing tough new penalties for
drug dealers, not as creating new crimes. See,
e.g., 132 Cong. Rec. 26834 (1986) (statement of
Sen. Nunn) ("[t]he bill strengthens the penalties
for major drug traffickers"); 132 Cong. Rec.
26835 (1986) (statement of Sen. Trible) ("it
substantially increases the criminal penalties
for drug dealers . . . . It is time for more
vigorous law enforcement and for tougher
penalties that will put major drug traffickers
out of business forever. For that reason, I
introduced legislation to impose life
imprisonment on those convicted of continuing
criminal enterprises involving large-scale drug
trafficking"); 132 Cong. Rec. 31417 (1986)
(statement of Sen. Byrd) ("it contains
significantly enhanced penalties for drug crimes.
It requires minimum mandatory sentences, with no
parole, no probation. And it provides for life
sentences for major criminals--the drug ’king
pins’").
Robinson’s argument relies on language from a
footnote in Jones that says, "[U]nder the Due
Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction)
that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a
jury, and proven beyond a reasonable doubt." 119
S. Ct. at 1224 n.6. Following this phrase
literally would produce indictments that are even
more complex, make jury verdicts even more
exhaustive, further constrict what little
sentencing discretion is left to today’s trial
judges, transform the U.S. Code and the
sentencing guidelines, and erase fresh Supreme
Court precedent that allows sentencing courts to
consider not only defendant conduct that the jury
did not decide upon but also defendant conduct of
which the defendant was acquitted, see Watts, 117
S. Ct. at 638.
Though we do not doubt the Supreme Court’s
willingness to undertake revolutionary change, we
are skeptical that the Court would announce such
an important legal metamorphosis halfway through
a footnote halfway through an opinion that
consists mostly of a fact-intensive analysis of
a specific statute and that in the end punts on
whether Congress meant the provision in question
to be a sentencing factor or an element, but to
play it safe treats the provision as an element.
Other passages in Jones cast doubt on whether the
footnote really means what it says. "It is not,
of course, that anyone today would claim that
every fact with a bearing on sentencing must be
found by a jury; we have resolved that general
issue and have no intention of questioning its
resolution." 119 S. Ct. at 1226. "[O]ur decision
today does not announce any new principle of
constitutional law." 119 S. Ct. at 1228 n.11.
Most other circuits have not adopted the
breathtakingly sweeping interpretation of Jones
that Robinson recommends. The Eleventh Circuit
noted that "if any factor that increases the
maximum penalty amounts to an element of the
crime, the Court did not need to bother with
determining whether or not Congress considered it
an element." Hester, 2000 WL 11751 at *4.
Consequently, Hester concluded that the Jones
footnote applies only when a statute and its
legislative history are unclear. Id. The Tenth
Circuit called Jones "exceedingly narrow" and
cabined its holding to the federal carjacking
statute only. McGuire, 1999 WL 1244489 at *4. The
D.C. Circuit said "[t]hat the Supreme Court had
doubts about the constitutionality of the
carjacking statute, doubts that it never had to
resolve, is simply too thin a reed" to depart
from prior circuit decisions interpreting a
different statute as a sentencing factor.
Williams, 194 F.3d at 105-06.
Unless the Supreme Court clarifies that its
holding in Jones really is as broad as what
Robinson urges, we are inclined not to turn the
criminal justice system upside down, but rather
join these circuits’ more cautious reading of
that decision. We reject Robinson’s suggestions
that sec. 848(b) contains a sprinkle of
sentencing factor and a dash of definition of the
elements. Instead, we hold that sec. 848(b) does
not contain substantive elements that must be
charged in the indictment, submitted to the jury,
and proven beyond a reasonable doubt, but rather
embodies a sentencing enhancement that is within
the purview of the judge. In short, there was no
error here, plain or otherwise.
Even if the Jones footnote is taken at face
value, Robinson would not be saved. The footnote
says any fact "that increases the maximum penalty
for a crime" must be in the indictment, go to the
jury, and satisfy proof beyond a reasonable
doubt. As discussed earlier, sec. 848(b) does not
increase the maximum penalty for a CCE
conviction, but rather imposes a mandatory
minimum penalty within the sentencing range that
is already outlined.
Furthermore, even if our analysis of sec.
848(b) is off the mark and Robinson’s CCE
conviction is negated, he would spend life in
prison anyway. The government would reinstate his
conspiracy conviction, where his offense level of
48 would draw an automatic life sentence under
the sentencing guidelines. Also, Robinson already
was sentenced to life in prison on drug counts 3,
4, and 5.
A few loose ends regarding Robinson’s CCE
conviction remain. The first is whether Jones
means that the drug quantities in 21 U.S.C. sec.
841(b) are elements rather than sentencing
factors, a question we already considered and
answered to the contrary in Jackson. The second
loose end involves the CCE jury instructions,
where Judge Curran told the jury that it must
unanimously agree that Robinson participated in
two or more violations of the federal narcotics
law. Though, at the time, Judge Curran was
correctly stating the law of the circuit, the
Supreme Court subsequently ruled that the jury
must unanimously agree on each of the specific,
individual violations that comprise the CCE’s
"continuing series of violations." Richardson v.
United States, 119 S. Ct. 1707 (1999). The Court
also hinted that at least three violations might
be required. Id. at 1710. The Supreme Court also
recently held, however, that Federal Rule of
Criminal Procedure 52(a)’s harmless error
analysis applies to a jury instruction that omits
an element of the offense. Neder v. United
States, 119 S. Ct. 1827 (1999). We must decide
whether it is "clear beyond a reasonable doubt
that a rational jury would have found the
defendant guilty absent the error." Id. at 1838.
By unanimously finding Robinson guilty of the
drug offenses outlined in counts 3-6, the jury
unanimously agreed on four specific, individual
predicate felonies that made up the continuing
series of violations required for a CCE
conviction. The retrospective error in jury
instructions was therefore harmless.
The third loose end is Robinson’s claim that
the jury also should have been told that it must
unanimously agree on the identity of the "five or
more other persons" with whom he was acting in
concert. Robinson "acknowledges this is a
difficult argument" and then does little to
elaborate on it. Undeveloped arguments are
waived. See JTC Petroleum Co. v. Piasa Motor
Fuels, Inc., 190 F.3d 775, 780-81 (7th Cir.
1999). Regardless, the Supreme Court said that
the "five or more persons" provision is
significantly different from the "continuing
series of violations" provision and suggested
that there was no unanimity requirement for the
former. Richardson, 119 S. Ct. at 1713. We have
held that the jury is not required to agree on
the identity of the five individuals who a
defendant managed or supervised. United States v.
Gibbs, 61 F.3d 536, 538 (7th Cir. 1995). That law
stands, and so does Robinson’s CCE conviction and
life sentence under sec. 848(b).
We turn now to the raft of more familiar
complaints raised by Robinson and his three
appellate cohorts.
This appeal stems from the prosecution of a
drug ring that moved large amounts of crack
cocaine, powder cocaine, heroin, and marijuana
from Los Angeles to Milwaukee, Minneapolis, and
other cities across the country, where the drugs
were sold. Fifteen individuals were indicted: two
remained at large when this trial took place,
nine pleaded guilty, and four went to trial. The
trial, which lasted more than 2 weeks, ended when
the jury found all four guilty on all counts. In
addition to the CCE conviction, Robinson was
convicted of conspiracy to possess and distribute
crack cocaine, three counts of possession and
distribution of crack cocaine, one count of
possession and distribution of cocaine, and six
other counts mostly dealing with firearms
violations and money laundering. Gregory D.
Sallis was convicted of conspiracy, one count of
possession and distribution of crack cocaine, and
one count of interstate travel in aid of a
racketeering enterprise. Joell Jordan was
convicted of conspiracy and five counts of using
a communication facility to facilitate a drug
conspiracy. Kiymiko A. Hardin was convicted of
the drug conspiracy. As noted earlier, Robinson
received a life sentence. Sallis was sentenced to
360 months in prison, Jordan to 168 months, and
Hardin to 120 months.
Robinson and Sallis both challenge the
sufficiency of the evidence against them. An
insufficiency of the evidence argument is an
uphill fight. United States v. Bradley, 165 F.3d
594, 595 (7th Cir. 1999). We do not second-guess
the jury’s weighing of the evidence or its
assessment of the credibility of witnesses. See
United States v. Hach, 162 F.3d 937, 942 (7th
Cir. 1998). We affirm if, after viewing the
evidence in the light most favorable to the
prosecution, we find that a rational trier of
fact could have found the essential elements of
the crime beyond a reasonable doubt. Id.In an attack on his conspiracy conviction,
Sallis concedes that he bought and sold drugs but
distances himself from Robinson’s particular
outfit. What distinguishes a conspiracy from an
agreement between a buyer and seller is that a
conspiracy involves a further, often implicit,
understanding between the buyer and seller,
usually regarding the subsequent distribution of
the drugs. See United States v. Clay, 37 F.3d
338, 341 (7th Cir. 1994). Signs of a conspiracy
include a lengthy affiliation, an established
method of payment, standardized transactions, a
demonstrated level of mutual trust, and a seller
who knows about and has a stake in the buyer’s
drug business. See United States v. Menting, 166
F.3d 923, 928 (7th Cir. 1999).
The evidence indicated that Sallis was not the
independent agent he claims to be. Tresa
McCormick, a seller in the organization,
testified that at Robinson’s direction she picked
up her drugs on several occasions from Sallis,
whom she saw packaging a large amount of crack.
Another seller, Glen Huley, said that he and
Sallis sold drugs that belonged to the
organization’s leaders--Robinson, Charles
Henderson, and Nelson James--and that they would
not have to pay for the drugs up front but could
sell the drugs and return later with the profits.
Larry Tender, one of Robinson’s main operatives,
testified that he put up couriers in an apartment
after getting the keys to the apartment from
Sallis. Eugene Ward said on two occasions when he
bought crack from Robinson that Robinson was
accompanied by Sallis. Katrina Louis, a courier,
recounted that Sallis helped strap her with a
belt of money that she transported from Milwaukee
to Los Angeles. This evidence demonstrates that
Sallis was more than a mere customer of
Robinson’s but, rather, had an ongoing, regular,
integral role in the drug organization.
Robinson on counts 3-5 and Sallis on counts 1,
3, and 12 contend that the evidence identifying
the particular drug involved as crack cocaine
fell short. The defendants brand the witnesses
who testified in this case as, in so many words,
lying scumbag drug dealers who cannot be trusted
because they got a break for cooperating.
Unsavory characters might not make ideal
witnesses, but in a drug trial the prosecution
generally does not have the luxury of drawing its
roster of witnesses from the College of
Cardinals. It is not for an appellate panel to
second-guess the jury’s assessments of the
credibility of witnesses. United States v.
Griffin, 194 F.3d 808, 817 (7th Cir. 1999).
The defendants argue that the government failed
to prove that the controlled substance involved
in this case was indeed crack cocaine. We reject
this claim. As we have observed, the people who
transport, cook, cut up, bag, and sell crack are
the sort of people who tend to know what crack
is. See Bradley, 165 F.3d at 596 ("those who
smoke, buy, or sell this stuff are the real
experts on what is crack"). And here, numerous
witnesses identified Robinson’s organization as
dealing primarily in crack (cocaine base)
cocaine. Courier Sharyea Jackson testified that
she saw cocaine being cooked up prior to the
drugs being packaged and taped to her body for
transport from Los Angeles to Milwaukee. Courier
Kimberly Jones said she saw a "big old square
rock" being cooked before she smuggled the drugs
beneath her clothes from Los Angeles to
Milwaukee. Courier Jacquitta Brooks said the
package she delivered contained a big, hard,
cream-colored block that was cut into small balls
after she made her delivery in Milwaukee. Eugene
Ward admitted buying crack, as opposed to powder
cocaine, from Robinson and then selling it.
Several witnesses were particularly persuasive
in their understanding of what distinguishes
crack cocaine from cocaine powder. Lamont Nelson,
a Minneapolis drug dealer, described a visit from
Robinson in which the two cooked half a kilogram
of white powdery cocaine into crack cocaine,
which looks like rock and can be smoked. Nelson
explained that the crack cocaine product weighs
more than the original cocaine powder because,
during the process, baking soda is added using a
blender. Glen Huley, who admitted helping to cook
cocaine powder into crack, clarified that by
"cocaine base" he meant the "rock form substance
of cocaine." He, too, described the process of
taking the powder form of cocaine, adding baking
soda, cooking it on a stove, and producing the
rock form of cocaine. Larry Tender, who helped
weigh, bag, and sell the drugs, said that what he
would refer to on the street as "crack" he
described as "cocaine base" during the trial
because he didn’t think the jury members would
"understand what crack is." And Tresa McCormick,
who sold crack for Robinson for $800 an ounce,
recounted how she weighed and packaged crack
after first breaking it apart with her hands or
with a hammer. She explained that crack is
cocaine that is "cooked like with baking soda to
make a hard rocky like substance, so it’s like
smokable. Get you a little higher than regular
cocaine would."
We doubt a lab technician could define crack
any more cogently or concisely. Robinson and
Sallis complain that none of these witnesses
testified to ever having used or tasted the crack
themselves. But a cashier at Jewel doesn’t have
to bite off a piece of the customer’s broccoli to
know which vegetable she is ringing up. The
identity of a controlled substance may be proved
by circumstantial evidence, such as the purchase
price, the secrecy of sales, and familiarity with
the drug. See United States v. Dominguez, 992
F.2d 678, 681 (7th Cir. 1993); United States v.
Marshall, 985 F.2d 901, 905 (7th Cir. 1993).
Despite the lack of scientific evidence, a
rational jury could have easily concluded from
the secrecy of the transportation process, the
prices charged, and the witnesses’ firsthand
descriptions of cooking a white powdery substance
into rocks that the substance involved was crack
cocaine and not, as Sallis’ brief rhetorically
suggests, rock salt.
In finding Robinson guilty of the specific drug
charges in counts 3-5 and Sallis guilty on count
3, the jury obviously determined that the drug
involved was crack cocaine. Because of the
precision of the indictment, however, we also
believe that the jury found in the context of the
conspiracy charge in count 1 that the drug
involved was crack cocaine. This scuttles the
sentencing complaints of Hardin and Jordan, as
well as of Robinson and Sallis, all of whom seek
resentencing on the ground that there was an
inadequate basis to determine that crack was the
controlled substance involved in this conspiracy.
This is not a case like Edwards v. United
States, 118 S. Ct. 1475 (1998), where the jury
found the defendant guilty of a conspiracy
involving cocaine or cocaine base (i.e., crack)
and then at sentencing the judge determined that
crack was involved and imposed the resulting
harsher penalties. Here, the first count of the
indictment specifically charged the defendants
with conspiring to distribute and possess with
intent to distribute "controlled substances,
specifically, in excess of fifty grams of cocaine
base, commonly known as ’crack’ cocaine."
Granted, the jurors were instructed that the only
two elements they needed to find beyond a
reasonable doubt to convict the defendants on
this count were that the conspiracy existed and
that the particular defendant knowingly and
intentionally became a member of the conspiracy.
The jurors also were instructed, though, that if
they found the defendant(s) guilty of a
conspiracy, it had to be the conspiracy charged
in count 1 of the indictment. In finding the
defendants guilty on count 1, the jury therefore
found the defendants guilty of trafficking
"cocaine base, commonly known as ’crack’
cocaine." And if the jury found all four
defendants guilty beyond a reasonable doubt of
conspiring to deal crack cocaine, then surely
Judge Curran was on solid ground in deciding by
a preponderance of the evidence that the
controlled substance was crack cocaine and in
sentencing the defendants accordingly.
On a related issue, Sallis contests the
quantity of drugs that served as the basis for
his sentence. Because he did not raise his
objection at sentencing, we review for plain
error Judge Curran’s decision to hold him
responsible for at least 1.5 kilograms of crack.
United States v. Hardamon, 188 F.3d 843, 848-49
(7th Cir. 1999). It was not plain error for Judge
Curran to adopt the presentence report’s
recommendation that the weight of the crack
exceeded 1.5 kilograms. See United States v.
Vargas, 16 F.3d 155, 159 (7th Cir. 1994). As
discussed earlier in assessing Sallis’
sufficiency of the evidence argument, there was
plenty of testimony from multiple witnesses that
Sallis was deeply involved in this drug ring that
was moving large quantities of crack.
Moving on to the next issue, Robinson wants his
convictions reversed because Sallis’ trial
counsel twice mentioned during closing arguments
that Robinson had not testified. Pointing out a
defendant’s exercise of his Fifth Amendment right
not to be a witness against himself is thought to
compromise the right and therefore is forbidden.
Griffin v. California, 380 U.S. 609, 615 (1965).
A conviction is reversed, however, only if the
reference was not harmless. United States v.
Cotnam, 88 F.3d 487, 499-500 (7th Cir. 1996).
Even though the prosecution is not at fault when
a codefendant’s attorney improperly comments on
another defendant’s failure to testify, as was
the case here, the same harmless error standard
controls. See United States v. Alpern, 564 F.2d
755, 761-62 (7th Cir. 1977); United States v.
Hutul, 416 F.2d 607, 621-22 (7th Cir. 1969).
Sallis’ trial counsel first referred to
Robinson’s failure to testify while discussing
count 12 of the indictment, an interstate travel
charge under 18 U.S.C. sec. 1952(a)(3) against
Sallis, Robinson, and Denise Betts-Guignard. He
said:
And you have to think about the testimony that
came in about that. And essentially, we didn’t
hear from Keith Robinson, Denise Betts-Guignard
or Gregory Sallis, so we have to look at other
people’s testimony to determine what happened on
that day . . . . [T]he main person who testified
about that was Glen Huley. If you think back on
Mr. Huley’s testimony, and, again, I’m not going
to belabor the fact that he cut a deal with the
government, that he was proven to have lied
repeatedly, that he lived a dishonest lifestyle
before he came into this courtroom. All of that
is apparent to you.
A few moments later, Sallis’ lawyer discussed
count 3 of the indictment, a drug charge against
Sallis, Robinson, Nelson James, and Beverly
Hendrix. He said:
[W]hat you’re left with, because we haven’t heard
from Robinson, James, Hendrix or Sallis, is the
evidence that the government has brought forth
through Sharyea Jackson and Kimberly Jones.
Robinson pins his Fifth Amendment argument on
De Luna v. United States, 308 F.2d 140 (5th Cir.
1962), where a codefendant’s attorney’s repeated
references to another defendant’s failure to
testify resulted in a finding of prejudicial
error. In De Luna two men were on trial: Gomez
proclaimed his innocence and pointed the finger
at his codefendant (and cousin), de Luna,/3 who
did not testify. At closing, Gomez’s attorney
said, "[A]t least one man was honest enough and
had courage enough to take the stand and subject
himself to cross examination, and tell you the
whole story . . . . You haven’t heard a word from
this man (de Luna)." Id. at 142. De Luna only
highlights how different--and innocuous--the
situation was here: Sallis’ and Robinson’s
defenses did not conflict. Sallis’ attorney was
not casting aspersions on those who did not
testify (indeed, he noted that Sallis himself did
not testify). Sallis’ lawyer merely was arguing
that there were a limited number of people who
could testify about the crimes charged and the
only witnesses who did so were unreliable. He
could have been more careful, see United States
v. Petullo, 709 F.2d 1178, 1182 (7th Cir. 1983)
("[c]aution is certainly indicated in these
circumstances"), but his comments, viewed in the
light of all the circumstances of this trial,
were not any more than harmless to Robinson.
Next, all four defendants protest the admission
of evidence that Robinson and others were part of
the Crips, a Los Angeles-based gang. Robinson’s
and Sallis’ pretrial objection to this evidence
was overruled by Judge Curran, a decision we will
reverse only upon a showing of a clear abuse of
discretion by the judge. United States v. Butler,
71 F.3d 243, 250 (7th Cir. 1995). Gang
affiliation is relevant where the
interrelationship between people is a central
issue. United States v. Thomas, 86 F.3d 647, 652
(7th Cir. 1996). Proving that interrelationships
existed was necessary for the government to prove
the drug conspiracy of which all four defendants
were convicted. Charging a drug conspiracy that
involves gang members, however, does give the
government carte blanche to splash gang
references throughout the trial. Gang evidence
can arouse negative connotations and be unfairly
prejudicial. Id.; United States v. Irvin, 87 F.3d
860, 865 (7th Cir. 1996).
The government insists that the gang evidence
was necessary to show the connection between the
members of this conspiracy, particularly how the
coconspirators first got to know each other and
how Robinson kept lower-level gang members in
line. The defendants question what relevance
affiliation with a Los Angeles gang has to
activities alleged to have occurred in Milwaukee.
The defendants also argue that the references to
the Crips were prejudicial because that gang is
particularly notorious in popular lore. Naming
the Crips as the specific gang involved was
superfluous and probably should have been
avoided. See United States v. Abel, 469 U.S. 45,
54 (1984) (not naming the Aryan Brotherhood as
the gang involved was one reason why gang
reference was not unduly prejudicial). Beyond
getting various witnesses to identify other
individuals involved in this drug ring as Crips,
the prosecution did little to develop their
theory that the connections between gang members
demonstrated connections in the drug distribution
conspiracy. Nonetheless, the gang relationships
suggested that the players in this story were
linked. Cf. Irvin, 87 F.3d at 864 (gang evidence
gratuitous because conspiracy not charged and
joint venture did not need to be proved). Though
the defendants suggest the mere utterance of the
name "Crips" sent shudders down every juror’s
spine, there was no insinuation at trial that the
Crips are a particularly big and bad gang.
Furthermore, in a 12-day trial involving 42
witnesses, there were only 7 references to the
Crips and 2 additional generic gang references.
Though we do not see much probative value in this
gang evidence, we also don’t see great danger of
unfair prejudice. In light of the cautionary jury
instruction and the wealth of other evidence, the
admission of these scattered gang references was
not a clear abuse of discretion and--even if it
were--was harmless.
Finally, Sallis and Hardin say they were
prejudiced by being tried jointly with Robinson.
Sallis is bringing up this issue for the first
time on appeal; Hardin filed a pretrial severance
motion based solely on Bruton v. United States,
391 U.S. 123 (1968), grounds. Because neither
defendant has shown cause for not raising this
particular joint trial concern in the district
court, we review only for plain error. United
States v. Gio, 7 F.3d 1279, 1285 (7th Cir. 1993).
If it appears a defendant is prejudiced by a
joint trial, the judge may order separate trials.
Federal Rule of Criminal Procedure 14. The
defendant must show that without severance he was
unable to obtain a fair trial, not merely that
his chance of acquittal would have been higher at
a separate trial. United States v. Thornton, 197
F.3d 241, 255 (7th Cir. 1999). Joint trials are
encouraged when a group of people are charged
with participating in the same crime because the
economies of a single trial in all but the most
unusual circumstances outweigh the danger of
prejudice to the least guilty or possibly the
prejudice to all defendants because of sheer
confusion. United States v. Velasquez, 772 F.2d
1348, 1352 (7th Cir. 1985). We presume that the
jury capably sorts through the evidence and
follows the instructions, such as the one given
by Judge Curran, to give separate consideration
to each defendant. Thornton, 197 F.3d at 256. The
classic situations where failure to sever may be
prejudicial involve the admission of damaging
evidence at a joint trial that would be
inadmissible if the defendant were being tried
alone or the exclusion at a joint trial of
exculpatory evidence that would be available if
the defendant were being tried solo. Id. Sallis
and Hardin argue their situation fits the former
scenario because the bulk of the evidence in this
case pertained to Robinson, the ringleader. Joint
trials do create the danger that the little fish
will be lumped together with the big fish. See
United States v. McAnderson, 914 F.2d 934, 949
(7th Cir. 1990). Conversely, though, joint trials
might make the little fish’s activities, though
criminal, appear minor in comparison and
consequently result in acquittal. See Thornton,
197 F.3d at 256.
Because both Sallis and Hardin were charged
with conspiracy, much of the evidence they found
objectionable in the joint trial would have been
admissible at separate trials anyway.
Conspirators are on the hook for foreseeable acts
of coconspirators that are in furtherance of the
conspiracy. See Hach, 162 F.3d at 951 (7th Cir.
1998). Sallis’ perfervidly argued small fish
theory is especially hard to swallow. As shown by
our earlier discussion of his insufficiency of
the evidence argument, he was no bit player in
this drug ring.
Hardin’s claim is more plausible and evokes
more sympathy, since she was only a low-level
courier who ended up with a mighty stiff
sentence. Nevertheless, ferrying drugs to
Milwaukee and drug money back to Los Angeles
might not be as bad as orchestrating the
business, but it is illegal and it makes one part
of the conspiracy. Larry Tender, Glen Huley, and
LaQuita Hampton all identified Hardin as a drug
courier. Tender described three occasions when he
met Hardin in Milwaukee upon her arrival from Los
Angeles to receive the packages of crack cocaine
she had transported. Sharyea Jackson testified
she and Hardin made trips to Los Angeles, each
carrying a concealed money belt. Hardin
challenges the reliability of these witnesses,
all of whom cooperated with the government and
received more lenient sentences. But credibility
is a call for the jury, not us. At any rate,
these witnesses would not have been any more or
less credible had they testified at a trial where
Hardin was being tried alone.
The jury found all four defendants guilty of
all counts charged, but in their next round of
deliberations reduced to $2,400 the $1 million
forfeiture sought by the government from Hardin.
By contrast, the jury imposed the $1 million
forfeiture the government sought against
Robinson, Sallis, and Jordan. A mixed verdict on
the actual charges is more telling, see Thornton,
197 F.3d at 256, but variance in a forfeiture
decision also indicates that the jury considered
the evidence against each defendant individually.
Given this factor, the cautionary instruction the
jury received, and the weight of the evidence
against both Sallis and Hardin individually, we
do not believe that it was plain error to try
them jointly with Robinson and Jordan.
We affirm the convictions and sentences entered
in the district court against all four
defendants.
/1 See United States v. Terence Earl Davis, 2000 WL
6132 (4th Cir. 2000) (destruction of property or
a dwelling or destruction of property that
jeopardizes a person’s life is an element in 18
U.S.C. sec. 1363); United States v. John Alvin
Davis, 184 F.3d 366, 367 (4th Cir. 1999) (great
bodily injury is an element in South Carolina law
regarding failure to stop when signaled by a law
enforcement officer); United States v. Allen, 190
F.3d 1208 (11th Cir. 1999) (intending to use
object as a weapon is an element in 18 U.S.C.
sec. 1791(d)(1)(B)); United States v. Nunez, 180
F.3d 227, 233 (5th Cir. 1999) (resisting arrest
by federal officer by more than simple assault or
with a dangerous weapon is an element in 18
U.S.C. sec. 111). See also United States v.
Chestaro, 2000 WL 16411 (2d Cir. 1999) (using a
deadly and dangerous weapon or inflicting serious
bodily injury is an element in 18 U.S.C. sec.
111(b) and therefore defendant’s double jeopardy
violation claim is rejected).
/2 See United States v. Jackson, 2000 WL 298575 (7th
Cir. March 23, 2000) (quantity of drugs is a
sentencing factor in 21 U.S.C. sec. 841); United
States v. Swiney, 2000 WL 149457, at *8 n.5 (6th
Cir. 2000) (same); United States v. Hester, 199
F.3d 1287, 2000 WL 11751, *5 (11th Cir. 2000)
(same); United States v. Carless Jones, 194 F.3d
1178, 1183-86 (10th Cir. 1999) (same); United
States v. Williams, 194 F.3d 100, 105-07 (D.C.
Cir. 1999) (same); United States v. McGuire, 1999
WL 1244489, *3-5 (10th Cir. 1999) (serious bodily
injury is a sentencing factor under U.S.S.G. sec.
2B3.1(b)(3)(B)); United States v. Cruz-Guerrero,
194 F.3d 1029 (9th Cir. 1999) (carrying a gun
during commission of a felony is a sentencing
factor in California law); United States v.
Kaluna, 192 F.3d 1188, 1196 (9th Cir. 1999)
(exception to the definition of a strike that
could prevent stiffer penalty under three-strikes
law is part of a sentencing factor in 18 U.S.C.
sec. 3559(c)(3)(A)); United States v. Eads, 191
F.3d 1206, 1214 (10th Cir. 1999) (type of firearm
is a sentencing factor in 18 U.S.C. sec.
924(c)(1)); United States v. Castillo, 179 F.3d
321, 328 (5th Cir. 1999) (same); United States v.
Baldwin, 186 F.3d 99, 102 (2d Cir.) (existence of
prior felony convictions is a sentencing factor
in 18 U.S.C. 924(e)), cert. denied, 120 S. Ct.
558 (1999); United States v. Matthews, 178 F.3d
295, 302 (5th Cir.) (involvement in a criminal
street gang is a sentencing factor in 18 U.S.C.
sec. 521), cert. denied, 120 S. Ct. 559 (1999).
/3 The caption of the case names the defendant as
Carlos Garza De Luna. In the body of the opinion,
however, he is called Carlos Garza de Luna.