United States v. Melvin Herbert ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-3574, 06-4038, 06-4067, 06-4171 & 07-2086
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ERRICK W HITE, M ELVIN H ERBERT, JAMES S TEWART,
C OREY E VANS, and M ARVEL T HOMPSON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 464—Elaine E. Bucklo, Judge.
A RGUED S EPTEMBER 26, 2008—D ECIDED S EPTEMBER 29, 2009
No. 09-1285
M ARVEL T HOMPSON,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
2 Nos. 06-3574, 06-4038, 06-4067, et al.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 1294—Elaine E. Bucklo, Judge.
S UBMITTED A PRIL 28, 2009 Œ —D ECIDED S EPTEMBER 29, 2009
Before R IPPLE, M ANION, and SYKES, Circuit Judges.
S YKES, Circuit Judge. The five defendants in these con-
solidated appeals participated in a long-running con-
spiracy involving the distribution of vast amounts of
cocaine, heroin, and marijuana by the Black Disciples
street gang in Chicago. Derrick White was convicted
following a jury trial, and on appeal he challenges
various aspects of his trial. The other four defen-
dants—Melvin Herbert, James Stewart, Corey Evans, and
Marvel Thompson—pleaded guilty, and they each (with
the exception of Evans, whose attorney has filed an
Anders brief) challenge their sentences. We conclude
that Stewart is entitled to a remand for resentencing in
Œ
After examining the briefs and the record, we have concluded
that oral argument in No. 09-1285 is unnecessary. That ap-
peal—involving Thompson’s challenge to the district court’s
order denying his motion under Rule 41(g) of the Federal Rules
of Criminal Procedure—is consolidated with Thompson’s merits
appeal and submitted on the briefs and the record. See F ED . R.
A PP . P. 34(a)(2).
Nos. 06-3574, 06-4038, 06-4067, et al. 3
light of Kimbrough v. United States, 128 S. Ct. 558 (2007). As
to the other defendants, we affirm.
We delayed issuing our decision in these appeals
because while they were pending, Thompson filed a
motion under Rule 41(g) of the Federal Rules of Criminal
Procedure asking the district court to order the govern-
ment to return more than $300,000 in property it seized
when it raided Thompson’s residence and business.
The district judge denied the motion without prejudice,
indicating that after Thompson’s merits appeal was
decided, she would “promptly decide” a renewed motion.
Thompson appealed this order, claiming that the
district court should not have denied his Rule 41(g)
motion and asking us to order that it be reassigned to a
new judge on remand. We dismiss this appeal for lack
of jurisdiction because the district court’s order was not
final. To the extent Thompson seeks reassignment of his
Rule 41(g) motion to another judge, we construe his
appeal as a petition for mandamus and deny it.
I. Background
The Black Disciples street gang operated a massive drug-
trafficking organization in Chicago between 1989 and
2004. One of the largest gangs in the city, the Black Disci-
ples financed most of their activities by selling enormous
quantities of cocaine, heroin, and marijuana in housing
projects and elsewhere on Chicago’s South and West
Sides. The Black Disciples prevented nongang members
from selling drugs in areas the gang controlled unless those
4 Nos. 06-3574, 06-4038, 06-4067, et al.
outsiders paid “street taxes.” Money obtained from drug
sales and street taxes was laundered through real
estate, jewelry, businesses, and vehicles obtained by gang
members as part of the conspiracy. Most of the gang’s
drug-distribution activities occurred in the Englewood
neighborhood on Chicago’s South Side and public-
housing projects on Chicago’s South and West Sides.
The Black Disciples embraced a rigid hierarchical
leadership structure. A “king” served as the leader of the
Black Disciples and was responsible for developing
gang policy and directing the gang’s drug-trafficking
operations. Marvel Thompson served as king of the
Black Disciples from the early 1990s until 2003, at which
point the gang shifted to a three-king leadership struc-
ture. “Board members” ranked just below the “kings” in
the Black Disciples’ hierarchy. The king assigned each
board member to a specific geographic area, and board
members oversaw the gang’s narcotics operations in
their areas of authority. Lower-ranking gang members
paid board members street taxes in exchange for the
right to sell drugs within the board member’s area of
control.
The Black Disciples protected their drug-trafficking
activities by using younger gang members to provide
security. The Black Disciples frequently posted gang
members at housing projects that served as headquarters
for the gang’s drug-dealing activities. These gang
members carried guns distributed by the gang and were
assigned to protect the Black Disciples’ activities from
interference by the police or other rival gangs. The gang
Nos. 06-3574, 06-4038, 06-4067, et al. 5
also protected its drug operation by intimidating wit-
nesses, shooting at police officers, and collecting debts
through violent means.
As part of the gang’s narcotics-trafficking operation,
Black Disciples held frequent meetings to discuss the
gang’s drug-distribution network and fashion rules, and
to decide how to provide security for important gang
members and their drug activities. One gang rule
called “Aid and Assistance” required all Black Disciples
members to automatically and immediately assist any
other member when asked for any purpose. Another rule
called “Code of Silence” prohibited Black Disciples mem-
bers from discussing gang business with nongang mem-
bers. At the meetings gang members decided how to
discipline members for violations of these and other
rules. For example, if a gang member stole drugs or drug
proceeds, cooperated with law enforcement, or failed to
follow orders, he could be fined, beaten, shot, or killed.
On February 8, 2005, a grand jury sitting in the
Northern District of Illinois returned a 49-count indict-
ment against 46 defendants stemming from their involve-
ment in the Black Disciples’ drug-distribution network.
Count 1, the centerpiece of the indictment, accused 45 of
the defendants of conspiring to possess and distribute
more than 50 grams of crack cocaine, more than 5 kilo-
grams of powder cocaine, and more than 1 kilogram of
heroin. Forty-five of the defendants pleaded guilty to
various charges in the indictment; the forty-sixth
defendant—Derrick White—was convicted after a jury
trial of four offenses. Given the sprawling scope of this
6 Nos. 06-3574, 06-4038, 06-4067, et al.
case, the number of defendants, and the variety of
issues each defendant raises on appeal, we save our
description of each defendant’s individual involvement
with the Black Disciples’ drug conspiracy for our
analysis below.
II. Analysis
A. Marvel Thompson
Marvel Thompson was the king of the Black Disciples
from the early 1990s until 2003, when the gang embraced
a three-king leadership structure that left Thompson in
charge of the gang’s South Side operation. As a king
Thompson directed the Black Disciples’ vast drug-traffick-
ing operations and controlled other gang members’
activities. Thompson pleaded guilty to the conspiracy
charge in the indictment. His presentence report (“PSR”)
placed him in Criminal History Category I, and his ad-
justed offense level was 46 under the sentencing guide-
lines (the sentencing table tops out at 43); this yielded an
advisory guidelines sentence of life imprisonment. He
was sentenced to 540 months in prison.
On appeal Thompson argues that the district court
committed several errors in the application of guidelines
enhancements and that his sentence is otherwise unrea-
sonable.1 He first argues that the district court erred
1
Thompson also argues that the district court violated the
Due Process Clause because it did not require the government
(continued...)
Nos. 06-3574, 06-4038, 06-4067, et al. 7
when it applied a four-level enhancement for being an
“organizer or leader” of the conspiracy. U.S.S.G. § 3B1.1(a).
The gist of Thompson’s argument is that the govern-
ment only established that he was a leader of the Black
Disciples gang, not a leader of the drug conspiracy. To the
contrary, the government presented substantial evidence
that as king of the Black Disciples, Thompson coordinated
the drug-distribution conspiracy. Thompson’s sentencing
hearing spanned two days, and nine different cocon-
spirators testified that Thompson was the king of the
Black Disciples and was extensively involved in directing
the gang’s narcotics operation. They testified that Thomp-
son controlled the entire Black Disciples organization,
provided drugs to gang members to sell, controlled
more than 15 drug-selling locations, made thousands of
dollars a day from drug sales, collected payments from
street-level drug dealers, laundered drug money through
real estate he owned, resolved disputes among gang
members, and disciplined Black Disciples members who
broke gang rules. The government also introduced evi-
dence seized from Thompson’s apartment, which
included several handguns, gang literature, more than
$300,000 in small bills, and letters from other Black Disci-
ples members who acknowledged his leadership role
and asked for money or assistance.
1
(...continued)
to prove beyond a reasonable doubt the sentencing facts it
relied on to increase his sentence. We have rejected this argu-
ment many times. See, e.g., United States v. Santiago, 495 F.3d
820, 824 (7th Cir. 2007).
8 Nos. 06-3574, 06-4038, 06-4067, et al.
Against this mountain of evidence establishing his
role as a leader of the Black Disciples’ drug conspiracy,
Thompson offers two additional arguments, both weak.
First, he claims that because much of the evidence
was drawn from grand-jury proceedings, the trial of
coconspirator Derrick White, plea agreements, and plea
colloquies, he did not have the opportunity to challenge
it. But the government gave Thompson this evidence well
in advance of his sentencing hearing, and he had ample
opportunity to contest it during the two-day hearing.
Second, Thompson argues that some of the evidence is
unreliable. This argument amounts to little more than an
invitation to second-guess the district court’s factual
findings, which are clearly supported by the evidence.
The district judge presided over this 46-defendant case
for nearly three years and demonstrated intimate famil-
iarity with the substantial evidence that overwhelmingly
identified Thompson as a leader of the drug conspiracy.
We will “not second guess the determinations made by
a judicial officer who has observed the testimony and
made careful judgments about the witness’ veracity.”
United States v. Hollins, 498 F.3d 622, 631 (7th Cir. 2007).
The district court did not clearly err in applying the four-
level “organizer or leader” enhancement under § 3B1.1(a).
Thompson next argues that the district court clearly
erred in applying a two-level enhancement for possession
of a dangerous weapon in connection with a drug-traf-
ficking offense. U.S.S.G. § 2D1.1(b)(1). For purposes of the
§ 2D1.1(b)(1) enhancement, a defendant “is considered to
have ‘possessed’ a firearm if coconspirators possessed
firearms in furtherance of the conspiracy and [the defen-
Nos. 06-3574, 06-4038, 06-4067, et al. 9
dant] could have reasonably foreseen the coconspirators’
possession.” United States v. Acosta, 534 F.3d 574, 588
(7th Cir. 2008).
There is ample support for the district court’s ap-
plication of the dangerous-weapon enhancement. Law-
enforcement officers recovered two loaded guns—along
with more than $300,000 in $10 and $20 bills—when
they searched Thompson’s apartment. One of these guns
had its serial number obliterated, which coconspirator
Varney Voker explained was a common Black Disciples
tactic to prevent the gang’s weapons from being traced.
Contrary to what Thompson suggests, the government
need not always establish the presence of drugs at the
same place where the firearm is found to support the
dangerous-weapon enhancement; such a showing is a
sufficient, but not a necessary, condition. See, e.g., United
States v. Womack, 496 F.3d 791, 798 (7th Cir. 2007).
Even without the guns recovered from his apartment,
however, application of the enhancement was justified
based on Thompson’s leadership role in the Black Disci-
ples. In this regard, Thompson’s case is indistinguishable
from United States v. Souffront, 338 F.3d 809 (7th Cir.
2003), a case in which we affirmed the application of the
§ 2D1.1(b)(1) enhancement to a drug kingpin when
trial testimony revealed that members of the drug con-
spiracy carried guns and used them for disciplinary and
security purposes. Similarly here, the government intro-
duced substantial evidence that the Black Disciples’ drug
operation relied heavily on gun-carrying gang members
to provide security and to discipline out-of-line gang
10 Nos. 06-3574, 06-4038, 06-4067, et al.
members. Additionally, the Black Disciples controlled
the housing project where coconspirator Derrick White
shot a police officer; White used a gang-provided
firearm while providing security for the drug-trafficking
organization Thompson directed. As if more were
needed, the evidence also established that Thompson
ordered one gang member killed whom he suspected of
cooperating with law enforcement and another gang
member shot for violating gang rules. The dangerous-
weapon enhancement was properly applied.
Thompson also challenges the district court’s applica-
tion of a two-level enhancement for obstruction of justice
under U.S.S.G. § 3C1.1. An obstruction-of-justice enhance-
ment is proper if the defendant commits perjury—that
is, if he willfully gives false testimony under oath about
a material matter. United States v. Price, 516 F.3d 597, 607
(7th Cir. 2008). A defendant can obstruct justice by lying
about relevant conduct that would enhance his sentence,
see United States v. Kroledge, 201 F.3d 900, 905 (7th Cir.
2000), and that is precisely what the district court con-
cluded occurred in this case. During his plea colloquy,
Thompson refused to admit to the government’s assertion
that he was a king in the Black Disciples organization,
saying, “As far as the kings and all that, that’s, that’s—
I told them a thousand times, that’s not me.” The govern-
ment then introduced substantial evidence establishing
Thompson’s role as a king, and the district court con-
cluded Thompson “absolutely lied” about his role in the
Black Disciples.
Thompson raises two challenges to the application of
this enhancement: that his statement to the district
Nos. 06-3574, 06-4038, 06-4067, et al. 11
court during the plea colloquy was not a lie and that it
was not material. Regarding the first of these claims,
Thompson contends that his statement about his role in
the Black Disciples was just his effort to explain to the
court that he only led part of the gang’s operations. He
argues that he was only trying to correct the govern-
ment’s erroneous assertion that he was responsible for
the coconspirators’ activities even though he did not
control their geographic area. To the contrary, however,
Thompson’s statement denying his status as king was
in response to a lengthy description by the government of
his ascension through the Black Disciples’ ranks and its
explanation of the Black Disciples’ leadership structure.
The statement was in the form of a flat denial—“it’s not
me.” The record also reflects that Thompson repeatedly
minimized his role with the Black Disciples. We find no
fault with the district court’s finding that Thompson lied.
Nor are we convinced that Thompson’s lie was immate-
rial. Numerous courts have held that when a defendant
lies during a plea hearing by attempting to minimize
his role in an offense, that lie is material for purposes of
§ 3C1.1. See, e.g., United States v. Sanders, 162 F.3d 396, 402-
03 (6th Cir. 1998); United States v. Hernandez Coplin,
24 F.3d 312, 317-18 (1st Cir. 1994). And we have
specifically held that an obstruction-of-justice enhance-
ment is warranted when the defendant minimizes his role
in a conspiracy during a sentencing hearing. See United
States v. Sharp, 436 F.3d 730, 738 (7th Cir. 2006). Sentencing
courts must consider a defendant’s role in a conspiracy
when determining whether a § 3B1.1 enhancement or a
§ 3B1.2 reduction is applicable. Thompson’s attempt to
12 Nos. 06-3574, 06-4038, 06-4067, et al.
mislead the district court about his role within the
Black Disciples “[made] it more difficult for the court to
give him the sentence that is his just [dessert].” United
States v. Sapoznik, 161 F.3d 1117, 1121 (7th Cir. 1998).
Accordingly, the district court did not clearly err in
applying the obstruction-of-justice enhancement.
Thompson next claims he is entitled to a reduction
under U.S.S.G. § 3E1.1(a) for acceptance of responsibility.
When a defendant’s offense level is properly enhanced
for obstruction of justice under § 3C1.1, he is generally
not entitled to a reduction for acceptance of responsibility
absent “exceptional circumstances.” United States v.
Davis, 442 F.3d 1003, 1009-10 (7th Cir. 2006). We have
previously affirmed the denial of a § 3E1.1(a) reduction
where the defendant minimizes his role in the offense.
United States v. Linnear, 40 F.3d 215, 222 (7th Cir. 1994).
The district court properly withheld the acceptance-of-
responsibility reduction. Thompson lied about his role as
king of the Black Disciples and disputed the degree to
which he engineered the gang’s drug-trafficking opera-
tions. Furthermore, although the evidence overwhelming
revealed that he directed a massive drug organization
for approximately 15 years, the only drug transactions
Thompson actually admitted were a 2004 purchase of
150 grams of heroin and a 2004 sale of 1 kilogram of
heroin and 28 kilograms of cocaine. Even more incredu-
lously, Thompson initially testified that he had no idea
what his coconspirators were going to do with the drugs
he sold them on those occasions and revised his state-
ment only after the district court expressed understandable
skepticism.
Nos. 06-3574, 06-4038, 06-4067, et al. 13
Skeletal admissions and minimization generally under-
mine a defendant’s argument for a § 3E1.1(a) acceptance-
of-responsibility reduction; when combined with the
obstructive conduct that led to the application of a
§ 3C1.1 enhancement for obstruction of justice, Thompson’s
argument for an acceptance-of-responsibility enhance-
ment evaporates. To the extent Thompson contends that
the government agreed to a § 3E1.1(a) reduction, he
severely distorts the record. Although the government said
it would recommend an acceptance-of-responsibility
reduction if Thompson pleaded guilty by a certain date
(and he did), prosecutors were not bound by this agree-
ment after Thompson lied about his role in the Black
Disciples’ drug conspiracy at his change-of-plea and
sentencing hearings. Accordingly, the district court
properly denied Thompson a § 3E1.1(a) reduction for
acceptance of responsibility.
Finally, Thompson challenges his 540-month sentence
as unreasonable. He argues that the district court gave
too little weight to his lack of a criminal record, his per-
sonal characteristics, and his family responsibilities.
Thompson also believes that the district court did not
adequately explain why it imposed a 45-year sentence
on a 37-year-old with no criminal history. When a defen-
dant presents “stock arguments that sentencing courts
see routinely,” we have said that “a sentencing court is
certainly free to reject [them] without discussion.” United
States v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2008). Moreover,
“arguments clearly without merit can, and for the sake
of judicial economy should, be passed over in silence.”
United States v. Cunningham, 429 F.3d 673, 678 (7th Cir.
2005).
14 Nos. 06-3574, 06-4038, 06-4067, et al.
Here, the district court considered, among other
things: (1) the nature and circumstances of the offense,
which the court said “could hardly be worse” because
it was “a crime against the south side” and “the kind of
crime that keeps people from having a chance”;
(2) Thompson’s role as kingpin of the Black Disciples
organization; (3) certain positive aspects of Thompson’s
character as shown by his leadership qualities, his occa-
sional good deeds, and the fact that his children loved
him; (4) the cynical message Thompson sent to children
by appearing as a leader of a gang; (5) the need to deter
others from selling drugs and joining street gangs; and
(6) the likelihood that Thompson would return to selling
drugs upon his release from prison. After commenting
on these factors, the court rejected the recommended life
sentence, concluding that there was at least a possibility
of rehabilitation. In short, after an exhaustive two-day
sentencing hearing, the district court thoughtfully con-
sidered Thompson’s individual circumstances before
imposing a below-guidelines sentence of 540 months.
This was not an abuse of discretion.
B. Melvin Herbert
Melvin Herbert pleaded guilty to the conspiracy count
charged in the indictment, admitting that he held a leader-
ship position in the Black Disciples’ drug-trafficking
operation. The district court found that the total amount
of drugs involved in the conspiracy included more than
1.5 kilograms of crack cocaine, 30 kilograms of heroin,
and 150 kilograms of powder cocaine. Herbert received
Nos. 06-3574, 06-4038, 06-4067, et al. 15
guidelines enhancements for possessing a weapon in
connection with a drug-trafficking offense and for being
a manager or supervisor of criminal activity, and a guide-
lines reduction for acceptance of responsibility. This
brought his advisory guidelines range to 360 months to
life imprisonment. The district court imposed a below-
guidelines sentence of 310 months.
The sole issue Herbert raises on appeal is whether he
is entitled to a remand for resentencing under either
Kimbrough v. United States, 128 S. Ct. 558, or 18 U.S.C.
§ 3582(c). Because Herbert did not object to the
crack/powder disparity before the district court, we
review these forfeited issues for plain error. See United
States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008).
In Kimbrough the Supreme Court held that district
courts may consider the disparity between the guidelines’
treatment of crack cocaine and powder cocaine when
fashioning a defendant’s sentence. In United States v.
Taylor, 520 F.3d 746, we adopted a limited-remand proce-
dure for forfeited Kimbrough-type arguments to permit
the district court to advise us of its inclination to impose
a different sentence in light of Kimbrough. Taylor
remands are premised on the notion that we cannot
determine from the record whether the district court
would have sentenced a defendant differently had it
been aware of its discretion to consider the guidelines’
disparate treatment of crack and powder cocaine. If the
district court tells us it would impose a different sentence,
then a Kimbrough error occurred; if the sentence would
remain the same, then no Kimbrough error occurred and
a remand for resentencing is not necessary.
16 Nos. 06-3574, 06-4038, 06-4067, et al.
Here, unlike in Taylor, we need not ask for the district
court’s view because even if the district court had ignored
the crack cocaine attributable to Herbert, his guidelines
range would remain unchanged. Based on the amount of
powder cocaine and heroin involved in this conspiracy,
Herbert’s base offense level would be the same. At the
time of Herbert’s sentencing, the 1.5 kilograms of crack
cocaine, 30 kilograms of heroin, and 150 kilograms of
powder cocaine attributed to him each resulted in a
base offense level of 38. If the district court focused ex-
clusively on the powder cocaine and heroin it attributed
to Herbert, it would still start with a base offense level
of 38. Accordingly, any Kimbrough error that occurred in
this case was harmless.
Nor do the retroactive amendments to the crack-cocaine
guidelines require a remand in Herbert’s case. Under
18 U.S.C. § 3582(c)(2), a defendant who “has been sen-
tenced to a term of imprisonment based on a sentencing
range that has been subsequently lowered” by the Sen-
tencing Commission may move the district court for a
reduction in his sentence based on the lowered range. A
§ 3582(c)(2) motion is addressed to the district court in
the first instance, not to the court of appeals. In any
event, as we have noted, the powder cocaine and heroin
attributable to Herbert independently support a base
offense level of 38. After applying the appropriate en-
hancements and reductions, Herbert’s guidelines range
remains 360 months to life imprisonment.
Nos. 06-3574, 06-4038, 06-4067, et al. 17
C. James Stewart
James Stewart pleaded guilty to the conspiracy count
charged in the indictment and was sentenced to 292
months’ imprisonment. Stewart admitted he sold drugs
and worked security for the Black Disciples’ narcotics
operation. On appeal Stewart challenges the crack-cocaine
sentencing ratio the Supreme Court declared advisory in
Kimbrough. Unlike Herbert, Stewart preserved this argu-
ment in the district court, so our review is plenary, for
abuse of discretion. See United States v. Clanton, 538
F.3d 652, 659 (7th Cir. 2008). We have said that a district
court abuses its discretion under Kimbrough when it
treats the crack/powder disparity as mandatory. Id. The
district court did so here.
Because a Kimbrough error occurred, the government
must show that the error was harmless. The government
concedes it cannot meet this burden, and we agree. Stew-
art’s PSR attributed 1.5 kilograms of crack cocaine to
him. However, neither the plea agreement, the PSR, nor
the district court calculated the specific quantity of
powder cocaine or heroin attributable to him. Unlike in
Herbert’s case, we therefore cannot determine whether
Stewart’s advisory guidelines range would remain the
same even if the district court ignored the amount of
crack cocaine for which it found him responsible. Accord-
ingly, we vacate Stewart’s sentence and remand to the
district court for resentencing in light of Kimbrough.
18 Nos. 06-3574, 06-4038, 06-4067, et al.
D. Derrick White
Derrick White was the only defendant charged in the
indictment who exercised his right to a jury trial. He
was convicted of four counts: (1) the conspiracy charge;
(2) shooting and attempting to murder a Chicago police
officer for the purpose of maintaining and increasing
his position in an enterprise engaged in racketeering
activity; (3) carrying and using a gun during a violent
crime; and (4) possession of a firearm by a felon. The
district court sentenced White to 372 months’ imprison-
ment, and he does not challenge his sentence.
White served as a soldier in the Black Disciples’ narcotics
enterprise, in which capacity he acted as a lookout at the
gang’s drug-dealing locations to warn about possible
interference by the police or rival gang members. In 2001
White was working security at one of the high-rise
housing projects the Black Disciples used as a drug-
distribution site. On the night of May 8, 2001, undercover
officers from the Chicago Police Department approached
the building where White was stationed to conduct a
“reverse sting,” meaning they would arrest drug dealers
when they arrived, then pose as the dealers and arrest
anyone who tried to purchase narcotics from them.
Dressed as a construction worker, Officer Deon Hughes
drove a U-Haul truck toward the building and got out of
the vehicle. As he did so, White approached, frisked him,
felt Hughes’s bulletproof vest, and yelled, “5-0” (gang
code for the police). Hughes then identified himself as
a police officer, and White reached into his waistband for
a gun. Hughes punched White in the face and tried to
Nos. 06-3574, 06-4038, 06-4067, et al. 19
run to the front of the U-Haul for cover, but White got
off three shots. Two of the bullets hit Hughes, one in
his lower back and one in his spine. Had Hughes not
worn a bulletproof vest, the shot to his spine would
have killed him. White fled the scene, but based on a
description Hughes provided other officers as he lay
injured, police later apprehended him.
White first argues that prosecutors impermissibly used
a peremptory challenge to strike an African-American
juror on the basis of her race contrary to Batson v. Kentucky,
476 U.S. 79 (1986). During jury selection, the district court
informed potential jurors that the trial might last a week
and a half and asked whether this schedule posed prob-
lems for any of them. Two women raised their hands and
said they had child-care difficulties. Marcy DeVries, a
white woman, said she had three children and she
might have trouble finding someone to care for her chil-
dren for an extended period of time. Vicki Jackson, an
African-American woman, said she had nine children
and that two were “sickly” so she needed to be available
in case they had to go to the doctor. Jackson acknowl-
edged, however, that her mother could take care of her
children if necessary. When the district court entertained
challenges for cause, White’s attorney asked that DeVries
be struck for cause because of her child-care problem.
Noting that both Jackson and DeVries had child-care
issues, the prosecutor responded that they should either
both be retained or both be dismissed for cause.
The district court ultimately concluded that Jackson
and DeVries should not be dismissed for cause. The
20 Nos. 06-3574, 06-4038, 06-4067, et al.
resulting jury pool at this stage included five African-
Americans. Exercising peremptory challenges, prosecutors
struck five whites (including DeVries) and three African-
Americans (including Jackson).2 The resulting jury in-
cluded one African-American as a regular juror (Juanita
Bradley) and one African-American as an alternate
juror (Tammi Sherina Pierre-Pierre).
White’s counsel then raised a Batson challenge to the
government’s use of a peremptory challenge against
Jackson. The prosecutor responded that he struck both
DeVries and Jackson because of child-care concerns. The
government also proposed that the court promote alter-
native juror Pierre-Pierre to the regular jury so that
there would be two African-Americans on the jury
rather than one. White agreed to this suggestion. In light
of the government’s willingness to substitute an African-
American alternate for a white juror, the district court
concluded no Batson violation occurred. Following trial,
the district court briefly revisited the Batson issue and
reaffirmed its early decision.
On appeal, the government initially argues that White
waived his Batson challenge. Because White’s attorney
agreed to the suggestion that alternate juror Pierre-
Pierre be promoted to the regular jury, the government
argues that White’s attorney made a strategic waiver of
White’s Batson challenge. See United States v. Jaimes-Jaimes,
406 F.3d 845, 848 (7th Cir. 2005) (“There may be sound
2
The government’s dismissal of the other two African-Ameri-
cans is not at issue in this case.
Nos. 06-3574, 06-4038, 06-4067, et al. 21
strategic reasons why a criminal defendant will elect to
pursue one . . . argument while also choosing to forego
another, and when the defendant selects as a matter of
strategy, he also waives those arguments he decided not
to present.”); see also United States v. Wesley, 422 F.3d 509,
520-21 (7th Cir. 2005) (finding waiver occurred when a
defense attorney agreed with the judge’s proposed
remedy to correct an allegation of juror bias).
We disagree. Both before and after the seating of the
alternate juror, White’s attorney said that he objected to
the dismissal of Jackson. Although White’s attorney
agreed to the government’s proposal regarding the alter-
nate, there is no indication this was a knowing and inten-
tional decision to set aside White’s Batson challenge.
We have said that “[w]aiver principles should be
construed liberally in favor of the defendant.” Jaimes-
Jaimes, 406 F.3d at 848. White’s acceptance of the gov-
ernment’s proposal to substitute the African-American
alternate for a white juror did not amount to a waiver
of his Batson challenge.
Though not waived, the Batson challenge was
properly rejected. Under Batson when the government
offers a race-neutral reason for dismissing a juror, the
defendant must establish that proffered reasons are
pretext for a discriminatory strike. See United States v.
Hendrix, 509 F.3d 362, 370 (7th Cir. 2007). Although the
defendant is usually required to establish a prima facie
case that the government excluded a juror because of
her race, when the district court rules on whether the
government’s race-neutral justification was pretextual,
22 Nos. 06-3574, 06-4038, 06-4067, et al.
as it did here, we treat the prima facie requirement as
moot. See United States v. White, 416 F.3d 634, 640 (7th Cir.
2005). We review the district court’s findings for clear
error. United States v. Taylor, 509 F.3d 839, 843 (7th Cir.
2007).
We first note that prosecutors advanced a race-neutral
reason for dismissing Jackson: her child-care concerns.
Race-neutral reasons can include a concern that certain
jurors “would not be able to give their full attention to
a week-long trial.” United States v. Williams, 934 F.2d 847,
849 (7th Cir. 1991). A juror who worries that her
children are not adequately being cared for may not be
able to give her full attention to a trial that lasts for
more than a few days. This is a plausible race-neutral
concern even if the juror can arrange for others to take
care of her children; here, Jackson raised an issue about
the unique medical needs of two of her children.
Because the government advanced a race-neutral justifi-
cation, Batson’s burden-shifting approach proceeds to
the determination of whether the asserted race-neutral
reason was simply pretext for an impermissible racial
motive. During a Batson pretext inquiry, the court looks
to “whether a strike was racially motivated” and
examines the “honesty—not the accuracy—of a proffered
race-neutral explanation.” Lamon v. Boatwright, 467
F.3d 1097, 1101 (7th Cir. 2006); see also United States v.
George, 363 F.3d 666, 674 (7th Cir. 2004) (explaining that
under Batson, “the government’s proffered reason for
the strike need not be particularly persuasive, or even
based on quantifiable data, so long as it is not pretextual”).
Nos. 06-3574, 06-4038, 06-4067, et al. 23
White argues that the government’s decision to defend
its use of a peremptory strike against Jackson on the
same grounds—child-care concerns—that it opposed her
for-cause dismissal suggests that the government acted
with an impermissible racial motive. But the govern-
ment opposed the for-cause dismissal of both DeVries
and Jackson on these grounds, arguing that they should
either both remain in the jury pool or both be removed.
The court kept them both in the pool, and prosecutors
then used two peremptory challenges to remove them
both. At all stages of the jury-selection process, then, the
prosecution treated Jackson and DeVries equally based
on their expressed concerns about their child-care obliga-
tions. This is the converse of the situation the Supreme
Court found problematic in Miller-El v. Dretke, where
“a prosecutor’s proffered reason for striking a black
panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve.” 545 U.S. 231, 241
(2005). Prosecutors here struck both jurors who raised
child-care issues—one white and one African-Ameri-
can—based on a concern that their attention might be
diverted from their responsibilities as jurors.
Other factors confirm the prosecutors’ nondiscriminatory
intent. We have previously noted that prosecutors
likely harbor no discriminatory intent when minority
jurors are empaneled even though prosecutors still had
peremptory challenges remaining. See United States v.
Nichols, 937 F.2d 1257, 1264 (7th Cir. 1991). Although the
prosecutors used all of their peremptory challenges here,
the resulting jury had one African-American, and the
government proposed substituting an African-American
24 Nos. 06-3574, 06-4038, 06-4067, et al.
alternate for a white juror to increase the presence of
minorities on the jury. Under these circumstances, the
district court did not clearly err in rejecting White’s
claim of pretext under Batson. See also United States v.
Griffin, 194 F.3d 808, 826 (7th Cir. 1999) (declaring that
when the government advances a race-neutral justifica-
tion, “we have ‘no basis for reversal on appeal unless the
reason given is completely outlandish or there is other
evidence which demonstrated its falsity’ ” (quoting Morse
v. Hanks, 172 F.3d 983, 985 (7th Cir. 1999))).
White next challenges the sufficiency of the evidence
that he was a member of the Black Disciples’ drug con-
spiracy or knowingly committed any acts in furtherance
of the conspiracy. On a sufficiency-of-the-evidence chal-
lenge, we view the evidence in the light most favorable
to the prosecution and will not reverse a conviction
unless “ ‘[no] rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.’ ” United States v. Carrillo, 435 F.3d 767, 775 (7th Cir.
2006) (quoting United States v. Curtis, 324 F.3d 501, 505
(7th Cir. 2003) (alteration in original)). White does not
challenge the evidence that he shot Officer Hughes;
rather, he claims that the evidence was insufficient to
connect him to the drug-trafficking conspiracy.
To the contrary, the evidence of White’s knowing
participation in the conspiracy—and the connection
between the conspiracy and the shooting—was over-
whelming. White admitted in his postarrest statements
to police that he was providing security for the Black
Disciples’ drug activities on the night of the shooting.
Nos. 06-3574, 06-4038, 06-4067, et al. 25
He told Officer Sheppard, who arrested him, that he was
“security,” which Sheppard testified generally meant
that White was protecting the gang’s drug-trafficking
operations. In addition, after White was Mirandized, he
told police he was “working security for the Black
Disciple dope operation that evening” but that he
didn’t know the “names of the people that were out
there dealing drugs, any of the Black Disciples.” A
coconspirator need not know everyone involved in a
conspiracy to be a member of it. United States v. Duran,
407 F.3d 828, 835-36 (7th Cir. 2005). That White dis-
claimed knowledge of the names of the coconspirators at
the scene on the night of the shooting is irrelevant. His
own statements undermine his sufficiency-of-the-
evidence argument.
And there was much more than White’s own state-
ments. Two police officers and one Black Disciples
member testified that the housing project where White
shot Officer Hughes was known to be controlled by
Black Disciples gang members, who distributed drugs
there under cover of “security” provided by the gang.
Officer Hughes testified that White frisked him when
he got out of the U-Haul, shouted “5-0” (meaning “police”)
after discovering his bulletproof vest, and fired on him
when Hughes announced himself as a police officer.
Other witnesses testified that White’s behavior in this
regard was consistent with the security practices of a
Black Disciples gang member. Finally, there was
evidence that the guns used by Black Disciples members
working “security” for the gang’s drug-distribution
network were provided by the gang and often had
26 Nos. 06-3574, 06-4038, 06-4067, et al.
their serial numbers obliterated; White used such a
firearm to shoot Hughes. This evidence amply supports
the jury’s verdict on the conspiracy count.
White also challenges the sufficiency of the evidence
on his racketeering conviction. Specifically, White claims
the government failed to prove the Black Disciples were
engaged in interstate commerce or that the gang’s
activities affected interstate commerce. We have said
that to prove the interstate-commerce element of a racke-
teering offense, the government need only show
“[a] minor or minimal influence on interstate commerce,”
such as a drug-dealing organization obtaining drugs
from outside the state. United States v. Farmer, 924 F.2d
647, 651 (7th Cir. 1991). Here, the government called a
Drug Enforcement Administration (“DEA”) agent to
testify that all illegal cocaine and heroin, and the
drugs seized from street-level drug dealers operating in
areas controlled by the Black Disciples, is produced
outside Illinois and imported into the state. That testi-
mony is sufficient to establish the requisite link to inter-
state commerce needed to sustain White’s racketeering
conviction; the DEA agent need not specify that the
drugs seized in this case traveled in interstate commerce.
White’s final sufficiency-of-the-evidence challenge
relates to his conviction for possessing a firearm as a
convicted felon in violation of 18 U.S.C. § 922(g)(1). Like
his challenge to his racketeering conviction, White
claims that the government failed to prove that the
weapon he used to shoot Officer Hughes traveled in or
affected interstate commerce. At trial an Alcohol, Tobacco,
Nos. 06-3574, 06-4038, 06-4067, et al. 27
and Firearms (“ATF”) agent testified that the Lorcin
semiautomatic pistol White possessed and used to shoot
Officer Hughes was probably manufactured in either
Nevada or California. However, because the firearm’s
serial number was unreadable, the agent could not deter-
mine exactly where it was manufactured or when it
entered Illinois.
White tries to compare his case to United States v.
Groves, 470 F.3d 311 (7th Cir. 2006), but the comparison
is inapt. In Groves an ATF agent testified that in Indiana
there were no “major manufacturers” of shotguns—the
type of weapon the defendant in that case possessed. Id.
at 324. We reversed the conviction, holding that the
agent’s testimony was “too vague to support proof of
this element beyond a reasonable doubt” because it was
not clear what the agent meant by “major” shotgun
manufacturers and he was never asked about the likeli-
hood that the gun was made in Indiana. Id. at 324-28.
This case is far different; the ATF agent’s testimony
here was much more specific than the agent’s testimony
in Groves. The agent testified that the markings on the
pistol were consistent with the firearm having been
manufactured in California or Nevada. We have never
required prosecutors to prove the precise state of origin
to prove the interstate-commerce element of a § 922(g)(1)
charge. The dispositive inquiry is whether the gun
crossed state lines at some point. Although the
markings on the pistol White used to shoot Hughes
do not conclusively establish the state where the pistol
was manufactured, they do establish that the pistol
28 Nos. 06-3574, 06-4038, 06-4067, et al.
was manufactured outside of Illinois. Accordingly, the
evidence is sufficient to support the jury’s verdict on
the felon-in-possession count.
Finally, White raises two evidentiary errors that he
claims warrant reversal. The first relates to testimony
given by Robert Berk, a trace-evidence expert the gov-
ernment called to testify about gunshot-residue evidence.
Because White had particles consistent with gunshot
residue on his hands, the government called Berk to
testify that White could only have acquired the trace
elements associated with gunshot residue by firing a
weapon. During his direct examination, Berk briefly
referred to a “hand blank” study supporting this con-
clusion. Later, after cross-examination revealed that
the particles associated with gunshot residue could
come from environmental conditions or some fields of
employment, Berk testified on redirect that it was
unlikely that the gunshot-residue particles on White’s
hands came from these sources.
White argues that this testimony violated Rule
16(a)(1)(G) of the Federal Rules of Criminal Procedure,
which requires pretrial disclosure of an expert witness’s
“opinions, the bases and reasons for those opinions,
and the witness’s qualifications.” However, White is
required to establish that any Rule 16 violation hampered
his opportunity to prepare a defense or that the violation
substantially influenced the jury. See United States v.
Stevens, 380 F.3d 1021, 1026 (7th Cir. 2004). He can
do neither. He had an opportunity to examine Berk
outside of the presence of the jury for more than an hour
Nos. 06-3574, 06-4038, 06-4067, et al. 29
before trial. His counsel vigorously cross-examined the
government’s expert, and the testimony he objects to
was offered in rebuttal, as a part of Berk’s redirect testi-
mony. Moreover, White had his own expert available
on this subject whom he chose not to call. White also
makes a conclusory argument that Berk’s reference to
an FBI-authored study in the Journal of Forensic Science
violated Rules 702 and 703 of the Federal Rules of Evidence
because the studies were unreliable. There is no
support for this assertion. Accordingly, we reject
White’s claims of evidentiary error.
White next complains that the district court erroneously
refused the jury’s request for a transcript of the trial
testimony of Officer Hughes, a decision we review for
abuse of discretion. United States v. Guy, 924 F.2d 702,
708 (7th Cir. 1991). There was no abuse of discretion
here. The district court had previously rejected a jury
request to see the handwritten statement of another
witness that helped establish White’s connection to the
Black Disciples. Later during deliberations the jury
asked for a transcript of Officer Hughes’s testimony.
Again the judge declined the jury’s request and
instructed jurors to rely on their collective memory of the
evidence. This approach to jury questions of this sort is
well within the trial court’s discretion. Id.Finally, White claims he is entitled to a new trial
based on cumulative error. See United States v. Allen,
269 F.3d 842, 847 (7th Cir. 2001). That doctrine has no
application here; we have identified no trial-court errors.
Id. (“If there are no errors or a single error, there can be
no cumulative error.”).
30 Nos. 06-3574, 06-4038, 06-4067, et al.
E. Corey Evans
Corey Evans pleaded guilty to the conspiracy count
and to one count of using a communications facility to
distribute narcotics. He admitted he served as a board
member in the Black Disciples’ narcotics operation, in
which capacity he sold drugs and oversaw the gang’s
drug-selling operation. The district court imposed a
sentence of 325 months. His attorney filed an Anders
brief, and Evans filed a response. Our review is confined
to the issues presented in those briefs.
The only potential nonfrivolous basis for appeal was
raised in a separate letter submitted by Evans’s attorney.
In it she notes that the Supreme Court decided
Kimbrough after she filed her Anders brief and therefore
Evans may argue he is entitled to a remand for
resentencing. Although Evans preserved this argument
in the district court, Evans’s circumstances are identical
to Herbert’s. The district court found Evans responsible
for more than 1.5 kilograms of crack cocaine and
30 kilograms of heroin, which supported a guidelines
range of 360 months to life. Even if the district court
ignored the crack cocaine it attributed to him, the
amount of heroin for which the court held Evans responsi-
ble results in the same base offense level of 38. After
applying the appropriate weapon and leadership en-
hancements and the acceptance-of-responsibility
reduction, Evans’s advisory guidelines range remains
360 months to life. As such, any Kimbrough argument
would be frivolous.
Nos. 06-3574, 06-4038, 06-4067, et al. 31
We have reviewed the other arguments Evans and
his attorney advance and conclude there are no
nonfrivolous issues for appeal. The government was not
required to prove sentencing facts beyond a reasonable
doubt; the district court properly calculated the quantity
of drugs attributable to Evans and made appropriate
credibility determinations; and the court properly
applied a dangerous-weapon enhancement to Evans’s
offense level. Also, Evans’s argument that the district
court improperly applied a four-level enhancement for
serving as a leader of the conspiracy is frivolous; the
argument was not raised in the district court, and on plain-
error review Evans cannot prevail because the govern-
ment introduced substantial evidence describing the
supervisory power Evans wielded in the conspiracy.
Finally, the district court imposed a reasonable sentence
after giving due consideration to the § 3553(a) factors.
Accordingly, we grant Evans’s counsel’s motion to with-
draw.
F. Thompson’s Rule 41(g) Motion
When Thompson was arrested in May 2004, the gov-
ernment seized cash and personal property from Thomp-
son’s residence and business. The seized property
included computer equipment, financial documents,
electronic equipment, a 2001 Ford Excursion (which is
no longer in the government’s possession), and approxi-
mately $320,000 in cash. Although the indictment
included a count seeking forfeiture of this property as
proceeds of Thompson’s drug-trafficking activities, to
32 Nos. 06-3574, 06-4038, 06-4067, et al.
our knowledge the government has not pursued forfei-
ture. Furthermore, apparently because of an oversight, no
reference to the seized property was included in the PSR;
it was not considered when the district court calculated
Thompson’s guidelines range and imposed his sentence.
While this appeal was pending, Thompson filed a pro se
motion under Rule 41(g) of the Federal Rules of Criminal
Procedure seeking the return of the property.3 Rule 41(g)
provides:
A person aggrieved . . . by the deprivation of prop-
erty may move for the property’s return. . . . The court
must receive evidence on any factual issue necessary
to decide the motion. If it grants the motion, the
court must return the property to the movant, but
may impose reasonable conditions to protect access
to the property and its use in later proceedings.
Thompson argued (among other things) that he wanted
the money returned in order to settle a pending tax
dispute with the IRS and to support his wife and his
19 children.
The district court held a status hearing on the motion
and noted that because Thompson’s PSR did not include
the seized funds as assets potentially available to Thomp-
3
The district court had jurisdiction to consider Thompson’s
Rule 41(g) motion while his criminal appeal was pending
because a Rule 41(g) motion initiates a new civil equitable
proceeding. United States v. Howell, 354 F.3d 693, 695 (7th
Cir. 2004).
Nos. 06-3574, 06-4038, 06-4067, et al. 33
son, the true size of Thompson’s assets was not fully
known at sentencing. The court suggested that this infor-
mation might have warranted a larger fine beyond the
$100,000 it imposed when it sentenced Thompson.
Because Thompson’s appeal of his sentence was pending
in this court and the district court lacked jurisdiction to
revisit Thompson’s sentence unless we vacated it, the
court decided to hold Thompson’s Rule 41(g) motion
in abeyance until we resolved Thompson’s appeal. Thomp-
son objected, and the district court shifted course and
simply denied the motion as premature, saying that if
Thompson’s sentence was affirmed, it would “promptly
decide” a new Rule 41(g) motion.
Thompson appealed this order, challenging several
aspects of the district court’s handling of his motion. First,
he argues that the district court should have entered a
default judgment against the government. Second, he
claims the district court erred by not deciding the merits
of his Rule 41(g) motion. Third, he contends that the
district court should not have held hearings on the
Rule 41(g) motion outside of his presence. We
conclude, however, that we lack jurisdiction to consider
any of these arguments because the district court’s order
was not final under 28 U.S.C. § 1291. The district court
made it clear that the denial of Thompson’s Rule 41(g)
motion was without prejudice and he was free to refile
it; “[a] dismissal without prejudice is normally nonfinal
because the plaintiff remains free to refile his case.” Mostly
Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093,
1097 (7th Cir. 2008). While “[i]n some instances . . . a
dismissal without prejudice may effectively end the
34 Nos. 06-3574, 06-4038, 06-4067, et al.
litigation and thus constitute a final order for purposes
of appellate review,” id., this is not one of those cases. The
district judge indicated that the Rule 41(g) motion was
premature and she wanted to wait until Thompson’s
merits appeal was resolved before addressing the sub-
stance of the motion. The judge said she would “promptly
decide” a new motion after Thompson’s merits appeal
was decided. Accordingly, the court’s order was nonfinal
and we lack jurisdiction over Thompson’s appeal.
Thompson also maintains, however, that the district
judge should have recused herself based on an ap-
pearance of bias. It is somewhat unclear from the record
whether Thompson ever made this request in the
district court; Thompson’s filings suggest that he raised
the issue of bias and the court’s decision briefly
addressed the issue. In denying Thompson’s Rule 41(g)
motion as premature, the judge commented: “There is no
basis for recusal and if [Thompson’s] suggestion [of bias]
is intended as a motion, it is denied.”
A challenge to a district court’s refusal to recuse may
only be made by a petition for a writ of mandamus. Tezak
v. United States, 256 F.3d 702, 717 n.16 (7th Cir. 2001).
Although Thompson did not style his appeal as one
seeking mandamus relief, we have previously said that
an appeal of a denial of recusal should be construed as a
petition for mandamus relief. United States v. City of Chi-
cago, 870 F.2d 1256, 1259 (7th Cir. 1989). Therefore, we
will treat Thompson’s appeal as a petition for mandamus.
Under 28 U.S.C. § 455(b)(1), a judge must recuse herself
when she “has a personal bias or prejudice concerning
Nos. 06-3574, 06-4038, 06-4067, et al. 35
a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding.” As the Supreme
Court has explained, neither judicial rulings nor
opinions formed by the judge as a result of current or
prior proceedings constitute a basis for recusal “unless
they display a deep-seated favoritism or antagonism
that would make fair judgment impossible.” Liteky v.
United States, 510 U.S. 540, 555 (1994). Further-
more, “expressions of impatience, dissatisfaction, annoy-
ance, and even anger” do not justify requiring recusal.
Id. at 555-56.
Thompson objects to some comments made by the
district judge but none indicate bias. The district judge
expressed some doubt that Thompson prepared his
relatively sophisticated briefs himself and also
remarked that his briefs were rude and impolite and “not
very nice.” These comments do not reflect impatience,
dissatisfaction, annoyance, or anger. Id. Thompson also
complains that the judge referred to him as a “kingpin,”
but this observation was entirely appropriate in light of
the evidence introduced about Thompson’s role in this
conspiracy. See United States v. Troxell, 886 F.2d 830, 834
(7th Cir. 1989) (referring to defendant as “Madame Co-
caine” and calling the defendant “not a nice person” did
not support a finding of bias regarding subsequent pro-
ceedings). Thompson is not entitled to mandamus relief.
III. Conclusion
For the foregoing reasons, we V ACATE James Stewart’s
sentence and R EMAND to the district court for resen-
36 Nos. 06-3574, 06-4038, 06-4067, et al.
tencing in light of Kimbrough. We G RANT the motion to
withdraw filed by Corey Evans’s counsel and D ISMISS
Evans’s appeal. We A FFIRM Derrick White’s conviction.
We A FFIRM Melvin Herbert’s sentence. We A FFIRM Marvel
Thompson’s sentence. We D ISMISS Thompson’s appeal of
the district court’s order denying his Rule 41(g) motion
for lack of jurisdiction. To the extent that appeal con-
stitutes a petition for mandamus, it is D ENIED.
9-29-09