United States v. Moore, M.L. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3804, 01-3805, 01-3853 & 01-3865
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
M.L. MOORE, ALEX RAMOS, JAMES P. YOUNG,
and EDWARD L. JACKSON, JR.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 815—Charles P. Kocoras, Chief Judge.
____________
ARGUED MAY 15, 2003—DECIDED APRIL 9, 2004
____________
Before BAUER, COFFEY, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Before us is a group of
crooked former members of the Chicago Police Department
(CPD) who were set up and eventually busted by the CPD’s
Internal Affairs Division (IAD) and the FBI. The police
officers, who devoted a considerable amount of effort to
making money from local drug dealers (and undercover
agents whom they mistook for drug dealers) through rob-
bery and acts of extortion at the expense of their public
duties, were eventually charged in a 39-count superseding
2 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
indictment with various racketeering, extortion, robbery,
drug, and weapons violations. They were tried together and
are now before us in a consolidated appeal challenging
different aspects of their convictions and sentences. Because
we find no reversible error in any of the judgments, we
affirm.
I
Prior to their arrests and convictions in this case, appel-
lants M.L. Moore, Alex Ramos, James P. Young, and
Edward L. Jackson, Jr. (to whom we refer collectively as the
Officers) were Chicago police officers assigned to the CPD’s
tactical unit in Chicago’s 15th District—the Austin District.
Tactical unit officers work undercover to combat illicit drug
and gang-related activities. These particular officers worked
with drugs and gangs, to be sure, but they slipped over to
the wrong side of the line: they used their positions of
power to skim money, drugs and weapons from the drug
dealers in their district. In the account that follows, we
present the facts in the light most favorable to the jury’s
verdict.
Word of these problems eventually reached the CPD. It
began its counteroffensive by ordering Eugene Shepherd, a
sergeant in the IAD, to pose as Derrick Simpson, a.k.a.
“Silky,” a fictitious cocaine trafficker. With the help of IAD
and FBI agents, Silky arranged to become a repeat victim
of the Officers’ acts of extortion. To lure the suspect officers
into the trap, Silky had CPD informants call the Officers to
let them know that the informant or some other individual
was scheduled to meet Silky at a set time and place for a
drug transaction. Armed with this information, one or more
of the Officers would then show up at the agreed location
and extort money from Silky.
For example, on March 28, 1996, an informant known
as “Boojie” called Moore and told him that a drug dealer,
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 3
Silky, was set to meet someone named Ronnie at a
McDonalds for a drug transaction. Moore’s partner that
evening was Young. In response to the tip, the two set out
for the McDonalds in an unmarked police car. At the
McDonalds they observed Silky and Ronnie talking in
Silky’s car; after a few minutes they approached Silky’s car
with their guns drawn. Moore had Silky get out of his car
and took a bag from him that contained between $8,000 and
$10,000. Moore and Young then handcuffed both Silky and
Ronnie and put them in the back seat of the unmarked
police car while their cars were searched. Their efforts were
rewarded with the discovery in Silky’s car of a digital scale,
a one-kilogram cocaine wrapper, and plastic bags for selling
small quantities of cocaine.
Eventually Ronnie was released, but Silky remained
handcuffed in the back seat of the unmarked police car.
Young then got into Silky’s car and followed Moore’s
unmarked police car, with Silky still in it, out of the
McDonalds parking lot. At one point the two cars pulled
over on the side of the road. Young stopped Silky’s car next
to the police car, rolled down his window, and told Silky,
“We get all the money, or you go to jail—we get all your
money or you go to jail.” The police officers then continued
driving. After a brief detour to the nearby city of Oak Park,
they returned to the Austin District where they met up in
a bus turnaround. Young parked Silky’s car and joined
Silky and Moore in the unmarked police car, where the
three negotiated how much of Silky’s money the officers
would get in exchange for not arresting him. Silky also
volunteered to help the officers ensnare other drug dealers.
In the end, Young gave Silky his pager number, and the two
officers confiscated close to $5,000 from what they thought
was Silky’s stash. The McDonalds portion of this incident
was captured on videotape and played for the jury during
Shepherd’s testimony at the Officers’ trial.
After giving the Officers several more opportunities
to extort money from him, Silky added a new tactic. He
4 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
enlisted Moore’s aid in his fabricated drug trafficking
operation by paying him to escort fictitious drug couriers as
they allegedly transported drugs along the interstate
highway. Silky offered to pay Moore $3,500 each time he
escorted one of Silky’s drug couriers. In exchange, Moore
agreed to follow Silky’s couriers in and around greater
Chicago. In the event a courier was pulled over by a law
enforcement officer, Moore agreed to approach the officer,
show his police badge, and attempt to talk the officer out of
searching the courier’s car. On October 16, 1996, Moore
followed a man who went by the name of Darin Counsel
from a hotel parking lot in Rosemont, Illinois, to Lansing,
Illinois. Moore believed that he was escorting Counsel on a
drug run, for a fee of $3,500. After successfully escorting
Counsel, Silky told Moore that he was going to need more
officers to help escort additional couriers over the holidays.
Moore indicated that he knew several other police officers
who might be interested in serving as escorts. Silky offered
to pay those officers $2,500 each time they escorted a nar-
cotics shipment. Eventually, Moore recruited Ramos to es-
cort Silky’s drug couriers. Moore received a finder’s fee for
the referral. Ramos escorted drug couriers on two separate
occasions; Moore did so three times.
The government’s case consisted of more than these
various acts of extortion and drug escort services. Several
of the Officers also participated in robberies of drug-houses
about which they received information from informants who
were also involved with the IAD/FBI investigation. During
these robberies, the Officers confiscated drugs and drug
paraphernalia, money, and jewelry, none of which was
reported or inventoried according to CPD protocol. Several
of the raids were set up by the IAD/FBI agents and cap-
tured on videotape.
Eventually the Officers were charged in a 39-count
superseding indictment and jointly tried before a jury.
The court denied their motions for severance, as well as
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 5
various other motions challenging the admissibility of evi-
dence. The foursome now appeal these adverse trial rulings,
their sentences and their convictions.
II
A number of the arguments before us are common to all
four appellants. We address those first and then turn to the
individual points presented by appellants Moore, Ramos
and Young.
A. Common Arguments
1
The Officers start with an argument that they concede is
foreclosed by earlier decisions of this court. They ask that
we find that the Hobbs Act does not reach individual
robberies involving drug dealers as victims unless the
government proves that the particular robbery had a sub-
stantial effect on interstate commerce. They contend that no
less is required in the wake of the Supreme Court’s deci-
sions in United States v. Lopez, 514 U.S. 549 (1995); United
States v. Morrison, 529 U.S. 598 (2000); and Jones v. United
States, 529 U.S. 848 (2000). Yet they have offered no reason
why we should revisit our decisions in United States v.
Sutton, 337 F.3d 792, 796 (7th Cir. 2003) (rejecting argu-
ment that the government must show a substantial effect
on interstate commerce to support a Hobbs Act violation);
United States v. Marrero, 299 F.3d 653, 655-56 (7th Cir.
2002); United States v. Peterson, 236 F.3d 848, 852 (7th Cir.
2001); and United States v. Bailey, 227 F.3d 792, 797 (7th
Cir. 2000). Sutton, Peterson and Marrero each explicitly
considered the Supreme Court’s developing jurisprudence
in this area and rejected this argument. They hold that no
more than a de minimis effect on interstate commerce need
be shown so long as the entity itself belongs to a class of
6 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
businesses that in the aggregate has a substantial effect on
interstate commerce. Other courts of appeals to consider
this issue have likewise rejected the Officers’ position. See,
e.g., United States v. Dupree, 323 F.3d 480, 485-86 (6th Cir.
2003) (upholding standard allowing de minimis impact on
interstate commerce); United States v. Fabian, 312 F.3d
550, 554-55 (2d Cir. 2002) (same); United States v. Wil-
liams, 308 F.3d 833, 838-39 (8th Cir. 2002); United States
v. Toles, 297 F.3d 959, 969 (10th Cir. 2002); United States
v. Diaz, 248 F.3d 1065, 1084-85 (11th Cir. 2001).
Several courts, including our own, draw a distinction
between the robbery or extortion of an individual and the
robbery or extortion of a business. See, e.g., United States
v. Lynch, 282 F.3d 1049, 1054-55 (9th Cir. 2002); Diaz,
248 F.3d at 1084-85; United States v. Wang, 222 F.3d
234, 238-39 (6th Cir. 2000); United States v. Collins, 40 F.3d
95, 100-01 (5th Cir. 1994); United States v. Mattson, 671
F.2d 1020, 1024-25 (7th Cir. 1982). Individual drug dealers,
however, when robbed in their capacity as such, are treated
as business entities. The Officers’ conduct in this case
targeted the businesses of various drug dealers, and thus
only a de minimis effect on commerce had to be established
to support a Hobbs Act conviction. Marrero, 299 F.3d at
655. Although we have recognized the irony in applying the
Hobbs Act effectively to protect unlawful businesses, insofar
as it bars acts of extortion against interstate criminal
enterprises like drug trafficking, we have upheld its
application in those situations nonetheless. Id. at 654. And
while we recognize the recent trend away from the federal-
ization of crimes that are also subject to state prosecution,
we see no reason to depart from well-settled law on this
question absent a directive from the Supreme Court.
2
The Officers also argue that their Hobbs Act convictions
must be reversed because the government did not establish
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 7
any effect whatsoever on interstate commerce, not even a de
minimis one. This is a challenge to the sufficiency of the
evidence, and “[w]e will overturn a conviction based on
insufficient evidence only if the record is devoid of evidence
from which a reasonable jury could find guilt beyond a
reasonable doubt.” United States v. Curtis, 324 F.3d 501,
505 (7th Cir. 2003).
The primary flaw the Officers identify in the govern-
ment’s case is the alleged failure of the prosecution to prove
that all cocaine originates overseas. This is the way the
government intended to prove the link to interstate com-
merce in this case, and it was a fact on which the govern-
ment bore the burden of proof. Two of the defen-
dants—Moore and Ramos—agreed to a stipulation that
“if called to testify Eady Johnson would testify that she’s an
expert in forensic chemical analysis with the Federal Drug
Enforcement Agency [DEA]. Ms. Johnson would further
testify . . . [that] [n]either cocaine nor heroin is produced
from substances grown in the United States.” Furthermore,
neither Moore nor Ramos offered any evidence to rebut the
testimony they agreed Johnson would provide. These two
are therefore precluded from arguing that the government
failed to meet its burden of proof by offering no evidence
that cocaine travels in interstate commerce.
Young’s and Jackson’s cases present a more serious issue.
We can find nothing in the record where the government
either proved or obtained a stipulation that would have
established that all cocaine originates overseas for purposes
of its case against the latter two. The government, perhaps
recognizing the seriousness of its blunder, attempts to
overcome this failure of proof by insisting that neither
Young nor Jackson raised this specific argument in a timely
motion for judgment of acquittal pursuant to FED. R. CRIM.
P. 29(c). That rule requires that all motions challenging the
sufficiency of the evidence must be filed within seven days
of the verdict in a criminal case. FED. R. CRIM. P. 29(c); see
8 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
also United States v. South, 28 F.3d 619, 626 (7th Cir.
1994). Although a motion for judgment of acquittal need not
spell out the particular basis for a challenge to the suffi-
ciency of the evidence, when such a motion raises specific
arguments, any claims not presented in the motion are
waived. United States v. McDonough, 603 F.2d 19, 21-22
(7th Cir. 1979); see also 2A CHARLES ALAN WRIGHT, FED-
ERAL PRACTICE & PROCEDURE: CRIMINAL § 466 (3d. 2000).
The government, directing our attention to each of the
four Officers’ motions for judgment of acquittal, insists that
the motions did not raise the claim that the government
failed to prove that cocaine originates overseas. If we were
to confine our consideration to the motions it has identified,
we would agree that none presented this specific claim. But
those were not the only motions filed. We look first at
Young’s case. His initial motion for judgment of acquittal
broadly challenged the sufficiency of the evidence on all
counts against him, and for that reason it would have
preserved his claim if he had not filed a subsequent, more
targeted motion. But Young did file a later motion, and thus
we must consider what it asserted. The district court
(within the 7-day period specified in Rule 29(c)(1)) gave
Young an extension of time to file by August 21, 1998, a
renewed Rule 29(c) motion. Young in fact filed his second
renewed motion for judgment of acquittal on August 19,
comfortably within the permitted time.
Young’s renewed Rule 29(c) motion for judgment of
acquittal argued that the government “failed to prove
beyond a reasonable doubt that such attempt [at extortion]
had an effect on interstate commerce.” The argument he
presented, however, was that Silky was robbed as an in-
dividual and thus the robbery did not affect interstate
commerce under the rule in Mattson, 671 F.2d at 1020,
1024-25. Mattson held that extortion of a bribe from an
individual does not affect interstate commerce and could
not form the basis for a Hobbs Act conviction. Young did not
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 9
mention any argument to the effect that the government
had failed to prove that the cocaine moved in interstate or
international commerce. We must decide whether this latter
argument is encompassed within the former such that it
has been preserved for our consideration on appeal.
As we have already explained, the argument that Young
clearly presented was correctly rejected on the merits. See
Marrero, 299 F.3d at 655. But this is beside the point,
because our concern is whether the renewed motion was
enough to preserve the complaint about the proof of move-
ment in interstate commerce. In our view, it did not.
Neither the government nor the court was on notice that
Young found the proof at trial on this point insufficient. The
challenge that Young and Jackson are now making—that
the government failed to establish that cocaine originates
overseas—was raised for the first time nearly two years
after the jury returned its verdict in this case, at which
time the district court no longer had authority under FED.
R. CRIM. P. 29(c) to entertain their arguments. Carlisle v.
United States, 517 U.S. 416, 421 (1996). That is simply too
late.
Jackson may have an additional problem with this argu-
ment. The district court also gave him an extension until
August 21, 1998, to file his post-trial motions, but he did
not file his Rule 29(c) motion until September 8, 1998.
Thus, it is possible that he is barred by the lack of a timely
Rule 29(c) motion. Even if his late filing were deemed to be
acceptable, however, he too failed to call the point to the
district court’s attention. For that reason, both Young and
Jackson have lost the right to complain about the failure of
proof on a key element of the government’s case against
them. (We decline the invitation to take judicial notice of
the presumed fact that all cocaine originates overseas; it is
easy enough, as the government offered to do in this very
case, to offer proof on this element.)
10 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
Before moving on we take a brief detour to consider
a twist on the interstate commerce argument that Young
alone advances. Young argues that because he did not know
that Silky was a drug dealer when he extorted funds from
him, his Hobbs Act conviction cannot be sustained. His
position, however, is inconsistent with this court’s en banc
decision in United States v. Staszcuk, 517 F.2d 53 (7th Cir.
1975) (en banc), in which we held that there is “no need to
prove that the extortion was actually intended to obstruct
or to affect interstate commerce.” Id. at 59. But see United
States v. McFarland, 311 F.3d 376, 383 n.15 (5th Cir. 2002)
(en banc) (per curiam) (Garwood, Jolly, Higginbotham,
Jones, Smith, Barksdale, DeMoss, Clement, JJ., dissenting)
(criticizing expansive interpretation of commerce clause
limitation on Hobbs Act advanced in Staszcuk). Under this
circuit’s law, it is irrelevant whether Young knew that Silky
was a drug dealer when he extorted funds from him. As
Young’s lawyer conceded at oral argument, “Mr. Young does
not have to have specific intent to commit a crime that will
affect interstate commerce. But it’s my understanding that
Mr. Young would have to have the specific intent to commit
a crime, that would, even if unknowing [sic] to him, affect
interstate commerce.” We agree.
3
Finally, the Officers mount a joint, three-part challenge
to their convictions under 18 U.S.C. § 924(c). First, they
insist that if their Hobbs Act convictions fail, then their
§ 924(c) convictions fail to the extent that they rely on the
Hobbs Act as a predicate offense. Because we have already
rejected the premise of this argument, we also reject the
conclusion.
Second, the Officers argue that their convictions violate
the rule announced in United States v. Cappas, 29 F.3d
1187 (7th Cir. 1994), in which this court joined a majority
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 11
of the circuits in holding that multiple convictions under §
924(c) may not be based on the use of multiple guns in
connection with a single offense. Id. at 1189. But Cappas
did not ban the linking of multiple § 924(c) convictions to
different predicate acts. Id. at 1190. It held instead that
“[w]hile a defendant cannot be convicted twice under
§ 924(c) for using two guns in connection with the same
drug trafficking or violent offense, separate convictions are
permissible so long as the court’s instructions require the
jury to connect each gun use to a separate predicate of-
fense.” Id. The jury instructions in this case meet the
Cappas criteria because each § 924(c) count (for each of the
Officers) is linked to a different predicate crime charged in
the indictment.
Nor do we see any problem in the jury instructions,
although the Officers’ third and final argument is that the
instructions conflicted with the § 924(c) counts of the in-
dictment, were confusing for the jurors, and deprived the
defendants of their right to a fair trial and a unanimous
verdict. The indictment charged the Officers with both
“using” and “carrying” a firearm in relation to a crime of
violence or drug trafficking offense. One of the jury in-
structions, Instruction Number 97, set forth the various
§ 924(c) counts in relation to each defendant. That instruc-
tion tracked the language in the indictment and explained
that “[t]he defendants are charged with using and carrying
a firearm during and in connection with crimes of violence
and/or drug trafficking crimes, in violation of Title 18,
United States Code, Section 924(c).” (Emphasis added.) In
a separate instruction, Instruction Number 99, the jurors
were told that in order to establish a violation of § 924(c),
the government had to prove “that the defendant used or
carried a firearm during and in relation to that drug traf-
ficking offense or crime of violence.” (Emphasis added.)
A properly preserved objection to jury instructions is
reviewed on appeal for abuse of discretion; we will affirm as
12 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
long as the instructions on the whole are a fair and accurate
summary of the relevant law. United States v. Jefferson,
334 F.3d 670, 672 (7th Cir. 2003). The government insists
that none of the Officers called this inconsistency to the
district court’s attention and thus that their challenge to
the jury instructions can be reviewed on appeal only for
plain error. United States v. Hernandez, 330 F.3d 964, 978
(7th Cir. 2003). To establish plain error, the Officers must
show (1) an error, (2) that is plain, (3) that affected their
substantial rights, and (4) that seriously affects the fair-
ness, integrity, or public reputation of the judicial proceed-
ings. Id.; see also United States v. Olano, 507 U.S. 725, 732
(1993). We need not resolve whether the government’s
forfeiture argument is correct here, however, because as is
often the case, the standard of review is ultimately unim-
portant. Under either possible standard, the Officers cannot
show that the district court’s instructions were incorrect.
In Turner v. United States, 396 U.S. 398 (1970), the
Supreme Court explained that “when a jury returns a guilty
verdict on an indictment charging several acts in the
conjunctive . . . , the verdict stands if the evidence is
sufficient with respect to any one of the acts charged.” Id.
at 420. We picked up on this language in United States v.
Bond, 231 F.3d 1075 (7th Cir. 2000), and noted that there
is no need to reverse a conviction that is supported by one
of several charged acts so long as the alternative bases for
conviction are neither unconstitutional nor illegal. Id. at
1078. The government urges us to apply this well-estab-
lished rule here, and offers United States v. LeDonne, 21
F.3d 1418 (7th Cir. 1994) as additional support. In LeDonne
we explained that “where a statute defines two or more
ways in which an offense may be committed, all may be
alleged in the conjunctive in one count. . . . And proof of any
one of those acts conjunctively charged may support a
conviction.” Id. at 1427 (citations omitted). The Supreme
Court’s decision in Turner and our later decisions in Bond
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 13
and LeDonne foreclose the Officers’ argument that the
government either had to amend the indictment against
them to charge using or carrying a firearm, or prove that
each individual both used and carried a firearm at trial.
B. Moore and Ramos
1
Moore and Ramos raise several additional challenges to
their § 924(c) convictions. Moore asserts that it was simply
a coincidence that he carried his service revolver during the
various acts alleged in the indictment and for which he was
convicted, because as a member of the CPD, he was re-
quired to carry his weapon. For that reason, he urges, the
government failed to prove that he used or carried his gun
“in relation to” a drug trafficking offense, as required by §
924(c). See Smith v. United States, 508 U.S. 223, 228 (1993)
(holding that § 924(c) requires prosecution to “prove that
the use or carrying was ‘during and in relation to’ a ‘crime
of violence or drug trafficking crime’ ”).
Ramos takes this argument in a slightly different di-
rection. He agrees that the evidence shows that Silky hired
him to serve as a drug escort, but he claims that his job was
specifically limited to displaying his police badge and
engaging in “cop talk,” if necessary. Like Moore, Ramos
says that the fact that he was carrying his service revolver
while escorting the alleged drug couriers was a mere
coincidence. Because he did not intend to use the gun, he
concludes, he did not carry it in relation to the charged drug
offenses.
We are not persuaded. This case, after all, comes to us
following a jury trial. We must affirm their convictions
unless “no rational trier of fact could conclude that the
government proved the crime’s essential elements beyond
a reasonable doubt.” United States v. Young, 316 F.3d 649,
14 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
660 (7th Cir. 2002). A rational juror could have concluded
that Moore and Ramos were hired to serve as escorts for
Silky’s drug couriers because as members of the CPD, they
could persuade other law enforcement officers not to detain
or inspect the couriers’ cars. A police badge and so-called
“cop talk” were essential to this plan, but a juror was en-
titled also to believe that the fact that both officers carried
their service revolvers on them was also essential and “in
relation to” the plan. Put differently, even if there was no
expectation that either Moore or Ramos would have to use
a gun actively while escorting Silky’s drug shipments, they
were both hired to play the role of a police officer, which
necessarily entails carrying a service revolver.
To be clear, we are not holding that any time a police
officer commits a drug trafficking offense or a crime of vio-
lence while carrying his or her police weapon, the officer
automatically has violated § 924(c). Our case is much more
limited. Officers Moore and Ramos were in fact hired to use
their status as police officers, with all the trappings, to
protect Silky’s drug couriers. That is enough to support
their § 924(c) convictions for carrying a gun in relation to a
drug trafficking offense. See, e.g., Young, 316 F.3d at 660-
61.
2
Moore’s next effort to undermine his § 924(c) convictions
is more targeted, but ultimately unavailing. Focusing on the
counts relating to the three occasions on which he provided
escort services for Counsel, he argues that no evidence was
adduced at trial to show that he actually carried a gun on
these occasions. The record in this case flatly contradicts
that assertion. At one point during the Officers’ trial,
Sergeant Shepherd testified that on each of the five occa-
sions that Moore and Ramos provided escort services, he
could see that they were wearing their guns.
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 15
3
Likewise, Ramos’s final effort to undermine his § 924(c)
convictions is going nowhere. He argues that the jury
was improperly instructed that he could be convicted for
violating the statute if they found that the fact that he
carried his police gun provided him with a sense of security
or in any way emboldened him to engage in criminal
conduct. This, according to Ramos, is an argument fore-
closed by the Supreme Court’s decision in Bailey v. United
States, 516 U.S. 137 (1995).
Ramos mis-reads Bailey. In that case, the Court’s analysis
was confined to the “use” branch of § 924(c). 516 U.S. at
143, 144. Bailey does not address the issue in Ramos’s case,
which is whether he carried a firearm in relation to a drug
trafficking offense. We agree with the government that
Ramos’s § 924(c) convictions are supported by evidence
showing both the “carrying” and the “relation” elements.
See, e.g., United States v. Pike, 211 F.3d 385, 389 (7th Cir.
2000).
C. Moore
Moore independently challenges three of the trial court’s
rulings: first, the denial of his motion to sever his trial from
co-defendant Jackson; second, the decision to allow the
government to introduce an unredacted version of his
proffer statements; and third, the decision to allow the
government to introduce Ramos’s handwritten, post-arrest
statement, which inculpated Moore.
1
Moore urges us to find that the district court improperly
refused to sever his trial from that of co-defendant Jackson.
16 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
But Moore himself never filed a motion in which he asked
for such a severance. Instead, Moore filed a motion adopting
the pre-trial motions of each of his co-defendants. Relying
on that general motion, Moore directs our attention to the
pre-trial motions filed by Jackson and Young as support for
his claim that his trial should have been severed from
Jackson’s. Not surprisingly, Jackson’s pre-trial motion does
not seek severance from his co-defendants on a theory that
the evidence against Jackson will prejudice those defen-
dants; such a motion would make no sense. So Moore may
not rely on Jackson’s motion to preserve the argument that
he now makes on appeal.
Co-defendant Young sought severance from all of his co-
defendants (although his motion primarily argued why it
was necessary to sever Young’s trial from Moore’s trial)
because, as a minor player in the charged conspiracy,
Young believed he would be unduly prejudiced by the gov-
ernment’s overwhelming evidence against his co-defen-
dants. Specifically, Young argued that the disparity in
evidence against the various defendants posed a great risk
that he would be convicted on the basis of a “spill-over”
effect, and he lacked confidence that the problem could
be solved through limiting instructions. Young did not
specifically argue that his trial should be severed from
Jackson’s because of the prejudicial nature of the gang-
related testimony the government planned to introduce
against Jackson, but we may read that claim into his very
broad argument that he would be prejudiced by the evi-
dence presented against his co-defendants.
The government makes two arguments in response to
Moore’s severance argument on appeal. First, it notes that
Moore failed to make a renewed motion for severance at the
close of the government’s case-in-chief and thereby waived
this argument on appeal. Next, and assuming that we do
not find waiver, the government argues that Moore is not
entitled to a new trial because he must, but cannot, show
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 17
that he suffered actual prejudice as a result of being tried
together with Jackson.
Even if Moore did not forfeit this argument, we find no
merit in it. A district court’s decision to deny a motion to
sever is reviewed for abuse of discretion. United States v.
McClurge, 311 F.3d 866, 871 (7th Cir. 2002). Furthermore,
there is a strong presumption that co-conspirators will be
tried jointly. Id. In order to obtain a severance from the
trials of her co-defendants under FED. R. CRIM. P. 14, a
defendant must prove that there is a “serious risk that a
joint trial would compromise a specific trial right.” United
States v. Wilson, 237 F.3d 827, 835 (7th Cir.), cert. denied
sub nom. Hatcher v. United States, 534 U.S. 840 (2001). We
have explained that this requires proof of actual prejudice
from a district court’s refusal to sever. Id.In this case, the district court took the risk of prejudice
into account when it instructed the jurors that “[e]ach
defendant is entitled to have his case decided on the evi-
dence and the law applicable to him.” This limiting in-
struction adequately handled any risk of prejudice to Moore
from the evidence against Jackson. Because there was
ample additional evidence on which to support Moore’s
conviction aside from any possible spill-over that may have
occurred from the evidence against Jackson, it is also the
case that he cannot show that he was harmed as a result of
the joint trial.
2
Moore’s next argument—that the district court improp-
erly allowed the government to introduce unredacted
information from his proffer statements—is also reviewed
under the abuse of discretion standard. United States v.
Robbins, 197 F.3d 829, 842 (7th Cir. 1999). Before evaluat-
ing the merits of this argument, we discuss the relevant
background facts.
18 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
After his arrest, Moore met with FBI agents, waived his
right to silence, and offered an innocent explanation for his
conduct. He did all this after he was told that he could
conceivably spend the rest of his life in prison if convicted
on the various gun, drug, extortion and robbery charges
that he faced. Without the benefit of counsel, Moore told the
officers that “Silky” was his “big case” and that he was
slowly gathering enough evidence to make “the big bust.”
He conceded that he did not follow police protocol in work-
ing the “big case”—for example, he wrongfully retained
money that he seized or received from Silky, he failed to
inform his superiors at the CPD of his work on the case,
and he did not follow CPD procedures for handling evidence
in a criminal case. But all of these shortcomings— accord-
ing to Moore—were done with an eye to making “the big
bust.” The FBI prepared a five-page post-arrest statement
documenting Moore’s version of the events.
Moore then retained counsel and met four additional
times with the government. Prior to these meetings, Moore
signed a Proffer Agreement that stated that if he “should
subsequently testify contrary to the substance of the prof-
fer, nothing shall prevent the government from using the
substance of the proffer at sentencing for any purpose, at
trial for impeachment or in rebuttal testimony, or in a
prosecution for perjury.” Moore then proceeded to give the
government detailed information about his relationship
with Silky, the various acts of extortion, robbery and drug
escorting in which he participated, as well as information
about his criminal activities unrelated to the conduct
charged in the indictment. It was during these meetings
that Moore essentially admitted that he was not conducting
an undercover investigation of Silky, and that he had
committed acts of extortion and robbery against other
individuals.
The government and Moore never struck a plea agree-
ment and the parties proceeded to trial. The government,
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 19
under seal, filed a “Submission Regarding Proffer Issues
with Respect to Defendant Moore,” in which it sought per-
mission to admit portions of Moore’s proffer statements in
the event that he “advance[d] before the jury a theory of
defense inconsistent with his proffer admissions—namely,
that he was conducting an undercover investigation of
‘Silky.’ ” In its submission, the government expressed the
belief that such a defense would authorize it to admit
Moore’s complete proffer statements, but at that point it
sought permission to use only “those portions of the proffer
in which the defendant admits (and details) the criminal
acts charged in the indictment, acknowledges the manner
in which the money he received was spent, and admits that
he was not conducting an undercover investigation of
Silky.” The district court ruled that should Moore pursue a
theory of defense inconsistent with his proffer statements,
the government would be allowed to introduce the redacted
version of these statements with proper limiting instruc-
tions.
At the trial, the government asked the court for a ruling
permitting it to introduce the entire proffer, based on
statements in Moore’s opening statement and on his cross-
examination of Shepherd. Moore argues now that this was
error, and that the government should not have been al-
lowed to introduce an unredacted account of his proffer
statements during its rebuttal argument. Moore’s view is
that the public authority defense that he asserted was
exactly what the government had earlier anticipated, and
thus that the government should have been limited to the
redacted version of the proffer it had originally proposed to
use.
We need not devote much time to this argument because
even if Moore is correct that the government should have
been limited to a redacted version of his proffer statements,
any error in allowing it to introduce additional portions of
the proffer statements was harmless in this case. United
20 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
States v. Thornton, 197 F.3d 241, 253 (7th Cir. 1999)
(holding harmless district court’s failure to redact informa-
tion because limiting instruction was given and error
occurred in trial that lasted nineteen days and contained
“strong evidence of the defendants’ guilt”). The govern-
ment’s evidence against Moore was strong, and the proffer
statements, even if properly redacted, flatly contradicted
Moore’s defense theory that he was simply pursuing his “big
case” in a rather unconventional manner.
3
Finally, Moore claims that the district court improperly
allowed the government to introduce co-defendant Ramos’s
post-arrest statement, which inculpated Moore. He asserts
that this statement was inadmissible under FED. R.
EVID. 804(b)(3), and that its admission violated his Sixth
Amendment right of confrontation. We review the district
court’s decision to admit Ramos’s statement under FED. R.
EVID. 804(b)(3) for abuse of discretion, and the consti-
tutionality of that decision de novo. United States v.
Thompson, 286 F.3d 950, 961 (7th Cir. 2002). Both aspects
of this issue are subject to harmless error review as well. Id.Once again, we can proceed straight to the question of the
significance of any possible error in this case without
parsing the merits of Moore’s claim. Such an approach is
appropriate where, as here, the government’s case against
Moore was so strong even without Ramos’s statement. On
this record, any possible error in admitting the statement
did not materially affect the outcome in the case. United
States v. Castelan, 219 F.3d 690, 696 (7th Cir. 2000). In
Castelan, we concluded that the district court erred in
allowing the government to introduce a co-defendant’s
statements against penal interest because “the statements
lack[ed] inherent particularized guarantees of trustworthi-
ness sufficient to satisfy the Confrontation Clause,” id., but
we affirmed Castelan’s conviction nevertheless because the
Nos. 01-3804, 01-3805, 01-3853 & 01-3865 21
government met its burden of showing that the error was
harmless beyond a reasonable doubt. Id.We are satisfied here as well that the government’s evi-
dence against Moore, excluding Ramos’s post-arrest state-
ment, easily supported his conviction and that any possible
error in allowing Ramos’s full statement to be read into
evidence does not cast doubt over the jury’s verdict. The
jury heard extensive testimony from Sergeant Shepherd
about “Silky’s” interactions with Moore. This testimony
preceded the introduction of Ramos’s statement, and was
corroborated by audio and videotapes that were played for
the jurors at trial. Because any possible error was harmless,
there is no reason to disturb Moore’s conviction.
D. Ramos
Ramos alone attacks the sentence that he received, argu-
ing that the district court improperly rejected his motion for
a downward departure from the U.S. Sentencing Guidelines
in light of the disparity in the sentences that he and a
defendant who is not a party to this appeal received. The
law is clear on this point: we lack jurisdiction to review a
district court’s decision not to grant a downward departure
from the Sentencing Guidelines unless the district court
was mistaken about its authority to depart in the first
instance. United States v. Aron, 328 F.3d 938, 940 (7th Cir.
2003); United States v. Crucean, 241 F.3d 895, 898 (7th Cir.
2001). In Ramos’s case, nothing whatever indicates that the
district court did not understand its authority to depart
from the Guidelines. At the sentencing hearing, the district
judge recognized the argument that Ramos had advanced
and, after noting his belief that there were real differences
between Ramos and his co-defendant that explained the
disparity in their sentences, found no basis for Ramos’s
argument that the discrepancy was the result of improper
prosecutorial conduct. Accordingly, we lack jurisdiction over
this portion of Ramos’s appeal. Aron, 328 F.3d at 941.
22 Nos. 01-3804, 01-3805, 01-3853 & 01-3865
III
For these reasons, we AFFIRM the judgments against all
four defendants.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-9-04