In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-4224, 98-4314, 99-1055,
99-1111, 99-1112, and 99-1133

United States of America,

Plaintiff-Appellee,

v.

Nazareth Wilson, et al.,

Defendants-Appellants.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 553--George M. Marovich, Judge.


Argued September 25, 2000--Decided January 17, 2001



  Before Flaum, Chief Judge, and Easterbrook and Diane
P. Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. This case brings
before us the appeals of another group of
defendants whose convictions stemmed from their
activities with the notorious drug conspiracy run
by the Gangster Disciples in Chicago for many
years. The six individuals here--Nazareth Wilson,
Jeffery Hatcher, Jimmie Gholson, Bryan Crenshaw,
Compton Jones, and Roland Tetteh--have jointly
challenged the wiretaps used to collect evidence
that was used against them, the failure of the
government to disclose favorable information to
them that went to the credibility of its main
witness, and the sentencing court’s determination
that the drugs at issue were "crack" cocaine and
not a more innocuous form of the drug.
Separately, they have raised other arguments
contesting either their convictions or their
sentences, or both. Although some errors were
present, none requires reversal; we therefore
affirm the judgments.

I
  The indictment in this case, returned in May
1997, followed three earlier indictments returned
in August 1995 against the leadership of the
Gangster Disciples (GD) street gang. The May 1997
indictment charged the same drug distribution
conspiracy as the earlier indictments, but it
added charges arising out of certain events that
took place after the original indictments as a
result of a power struggle to fill the void left
by the indictment of the original 39 leaders. As
the facts of the basic conspiracy have already
been rehearsed in prior opinions of this court,
we see no reason to offer yet another general
overview; interested readers may consult the
decisions in United States v. Smith, 223 F.3d 554
(7th Cir. 2000), and United States v. Jackson,
207 F.3d 910 (7th Cir. 2000), judgment vacated in
part, 121 S.Ct. 376 (2000).

  The six defendants here were charged with a
variety of drug-related offenses. Wilson pleaded
guilty to participation in the drug conspiracy in
violation of 21 U.S.C. sec. 846 and was sentenced
to 235 months of imprisonment. The jury found
Jones guilty on one conspiracy charge, sec. 846,
as well as on two counts relating to the use of
minors for drug operations, 21 U.S.C. sec.sec.
861(a)(1) and (2), and one for possession with
intent to distribute a controlled substance, 21
U.S.C. sec. 841(a)(1). For all this, he received
a sentence of 420 months, to be followed by 10
years of supervised release. The jury found
Tetteh guilty of violating sec.sec. 846 and
861(a)(1) and (2), and he eventually was
sentenced to 292 months of imprisonment and a
five-year period of supervised release. Gholson,
Hatcher, and Crenshaw were all convicted of
engaging in a continuing criminal enterprise in
violation of 21 U.S.C. sec. 848(a); in addition,
they were all convicted of violating sec.sec. 846
and 861(a)(1) and (2). Hatcher and Crenshaw had
an additional conviction for being felons in
possession of a firearm, see 18 U.S.C. sec.
922(g), and Crenshaw also was convicted for
possession with intent to distribute cocaine, 21
U.S.C. sec. 841(a)(1), and for use of a
communication facility in the commission of a
narcotic conspiracy, 21 U.S.C. sec. 843(b).
Because of the sec. 848(a) convictions, all three
received sentences of life imprisonment, to be
followed (to the extent it made any sense) by
supervised release for 10 years.

  Although this case involves new defendants,
several of the issues they raise were resolved in
Jackson and Smith. (These issues were unaffected
by the Supreme Court’s order that we reconsider
Jackson in light of its decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000).) At oral
argument, the appellants urged us to reconsider
Jackson, but we decline to do so. The defendants
in Jackson vigorously sought a rehearing en banc,
which no judge on this court found to be
warranted. Thus, we now simply reiterate that:
(1) the order authorizing the wiretap of Larry
Hoover’s conversations at the Vienna Correctional
Center (located in southern Illinois) was within
the jurisdiction of the federal district court in
the Northern District of Illinois because the
conversations were first heard by human ears in
Chicago, Jackson, 207 F.3d at 914-15; (2) the
statute authorizing "roving surveillance" of
telephone facilities used by certain persons, 18
U.S.C. sec. 2518(11), does not violate the Fourth
Amendment’s requirement of particularity of
description of the place to be searched, Jackson,
207 F.3d at 914; and (3) the government’s failure
to seal the surveillance tapes immediately was
not grounds for their exclusion, id. at 918. In
addition, for the reasons given in Smith, the
telephone recordings made at June’s Shrimp on the
Nine restaurant on October 15, 1994, were
authorized by the 30-day interception order
issued on September 15, 1994. Smith, 223 F.3d at
575.

  Several other issues warrant only brief mention.
The defendants were sentenced based on the
sentencing guidelines applicable to "crack
cocaine," U.S.S.G. sec. 2D1.1(c)(D). The
defendants jointly argue that the court erred in
determining that the substance being bought and
sold was crack cocaine. We find that the
government proved by a preponderance of the
evidence that the substance being sold was crack
cocaine. We have consistently held that those who
use, sell, or buy drugs are the "real experts on
what is crack." United States v. Hardin, 209 F.3d
652, 661 (7th Cir. 2000); United States v.
Griffin, 194 F.3d 808, 829 (7th Cir. 1999). On
the audio recordings, several gang members speak
of "cooking" the cocaine. The police testified to
seizures of small bags containing a lumpy,
rocklike substance. Against this showing, the
defendants offered nothing to suggest that the
conclusions of the gang members and the police
officers might have been mistaken. Looking at the
entire sentencing record, we see no clear error
in the district court’s substance determination.
See United States v. Abdul, 122 F.3d 477, 479-80
(7th Cir. 1997). Additionally, the district
court’s method for determining the drug quantity
involved in the conspiracy was in line with our
decision in Smith, and not clearly erroneous.
Smith, 223 F.3d at 568-69.

  We turn then to the remaining common issue the
defendants raise, which relates to the
government’s alleged failure to disclose evidence
that was favorable to them, in violation of Brady
v. Maryland, 373 U.S. 83 (1963). Presley
Patterson was a former GD governor who first
became a government mole and later entered the
federal witness protection program. As a key
witness for the government, Patterson testified
that he had not tested positive for drugs while
in the witness protection program. But a month
after the jury verdict, the prosecutors received
a memorandum from the Department of Justice
Office of Enforcement Operations stating that
Patterson had been terminated from the witness
protection program based on a United States
Marshal’s Service report that Patterson had
tested positive for marijuana in three drug tests
conducted prior to his court testimony. The
prosecutors immediately disclosed this
information to the defense. Based upon the
government’s failure to disclose this information
during trial, the defendants moved for a new
trial. The district court denied their motion for
a new trial; we review that decision for abuse of
discretion. United States v. Asher, 178 F.3d 486,
496 (7th Cir. 1999).

  Under Brady v. Maryland, the government may not
withhold evidence that is favorable to the
defense. 373 U.S. at 87. Brady requires a new
trial if the evidence at issue is (1) favorable,
(2) suppressed, and (3) material to the defense.
Id. Contrary to the defendants’ assertion in
their brief that the government must prove these
points, it is in fact the defendants’ burden to
do so. See United States v. Dimas, 3 F.3d 1015,
1017 (7th Cir. 1993); United States v. White, 970
F.2d 328, 337 (7th Cir. 1992).

  The government admitted before the district
court that the evidence would have been favorable
to the defense because it potentially undermined
Patterson’s credibility. It is also clear that
the U.S. Marshal’s Service received notice of the
failed drug tests well in advance of trial. The
defendants apparently concede that the
prosecutors lacked actual knowledge of this
damaging information, but they urge that the
knowledge of the Marshal’s Service should be
imputed to the prosecutors. In so arguing, they
rely on Kyles v. Whitley, 514 U.S. 419, 437
(1995), and Giglio v. United States, 405 U.S.
150, 153-54 (1972), which hold that it is proper
to impute to the prosecutor’s office facts that
are known to the police and other members of the
investigation team. As Kyles put it, "the
individual prosecutor has a duty to learn of any
favorable evidence known to others acting on the
government’s behalf in the case, including the
police." 514 U.S. at 437. See United States v.
Morris, 80 F.3d 1151, 1169-70 (7th Cir. 1996)
(knowledge of evidence is imputed to the
prosecutors only if it lies within an agency that
is "part of the team that investigated this case
or participated in its prosecution"). We agree
with the defendants that such imputation is
proper in these circumstances; it is impossible
to say in good conscience that the U.S. Marshal’s
Service was not "part of the team" that was
participating in the prosecution, even if the
role of the Marshal’s Service was to keep the
defendants in custody rather than to go out on
the streets and collect evidence. (As United
States v. Henry, 447 U.S. 264 (1980),
illustrates, potentially useful information may
come into the possession of the custodian,
whether or not that information is ultimately
admissible.)

  Nonetheless, more needs to be shown before the
defendants can prevail on their Brady argument.
The defendants must prove that the undisclosed
information was material, which means that it was
evidence that (if disclosed in a timely way)
would have created a reasonable probability of a
different result. Kyles, 514 U.S. at 434. The
"reasonable probability" does not mean something
greater than 50%; the test instead requires us to
decide "whether in . . . [the] absence [of the
evidence, the defendants] received a fair trial,
understood as a trial resulting in a verdict
worthy of confidence." Id.; see also United
States v. Bagley, 473 U.S. 667, 678 (1985). On
the one hand, knowing that Patterson was lying
about the drug tests might have led the jury
reasonably to suppose that he was lying about the
criminal activities of the defendants as well.
See Crivens v. Roth, 172 F.3d 991, 998-99 (7th
Cir. 1999). But we cannot assume that the
prosecutors would have done nothing to address
this revelation, had it come to light at trial.
As the district court speculated, if the
prosecution and the defense had known about the
drug test results, the prosecutors probably would
have asked about the drug tests and Patterson
would have told the truth. See Dimas, 3 F.3d at
1019 n.3 (the relevant question is "whether the
result would have changed if the prosecutors
disclosed the evidence at the time, not whether
the outcome would differ if the case were tried
today"). In that case, the evidence would not
have exposed perjury; it would have only been
cumulative of the extensive evidence of
Patterson’s drug use, and therefore not material
under Brady. See United States v. Dweck, 913 F.2d
365, 371-72 (7th Cir. 1990). Even if we reject
the district court’s hypothesis and assume that
Patterson would have lied about the drug use, it
was not an abuse of discretion for the district
court to find that Patterson had already been so
thoroughly impeached that additional impeachment
evidence would have made no difference. See
United States v. Williams, 81 F.3d 1434, 1438-39
(7th Cir. 1996). We therefore reject this joint
argument as well, and turn to the issues on
appeal urged by the individual defendants.

II
 A.   Hatcher, Gholson and Crenshaw

  Defendants Hatcher, Gholson and Crenshaw were
convicted of participating in a continuing
criminal enterprise (CCE) and sentenced to
imprisonment for life. 21 U.S.C. sec. 848. They
claim that their convictions on the CCE charges
cannot stand in light of the Supreme Court’s
decision in Richardson v. United States, 526 U.S.
813 (1999). Richardson held that a CCE conviction
can be sustained only if the jury unanimously
agreed on each of the specific predicate acts
required to show the existence of the CCE.
Hatcher, Gholson and Crenshaw correctly note that
the jury was not instructed that it needed to
unanimously agree on the predicate offenses for
the conviction. They urge that such a failure
requires reversal of the CCE convictions.
Although the government initially confessed error
on this point, it has since thought better of the
matter (after prompting from the bench at oral
argument) and it now argues that the jury did
convict on two predicate offenses for each
defendant, thus providing a proper basis for the
CCE convictions and making the jury instruction
error harmless. Neder v. United States, 527 U.S.
1 (1999).

  Even if the government had not amended its
argument, this court retains an independent
responsibility to evaluate confessions of error
for legal correctness. United States v. Locklear,
97 F.3d 196, 198 (7th Cir. 1996). Our review of
the law and the record convinces us that the
Richardson error was harmless. Count Two alleged
the following substantive offenses as CCE
predicates: (1) possession with intent to
distribute and distribution of controlled
substances, in violation of 21 U.S.C. sec.
841(a)(1); (2) use of telephones to facilitate
the unlawful possession and distribution of
controlled substances, in violation of 21 U.S.C.
sec. 843(b); (3) use of minors to facilitate the
narcotics conspiracy, in violation of 21 U.S.C.
sec. 861(a)(1); and, (4) use of minors to assist
in avoiding detection and apprehension for
engaging in the narcotics conspiracy, in
violation of sec. 861(a)(2). All three of the
defendants were also substantively charged in
Count Three with the use of minors in furtherance
of the narcotics conspiracy and in Count Four
with the use of minors to avoid detection and
apprehension; all three were convicted by the
jury on those two counts.

  The critical issue for our harmless-error
analysis is how many predicate offenses are
required for a CCE conviction: two or three? This
is not a matter on which the circuits are in
agreement. Some commonly define "continuing
series of violations" as three or more offenses.
United States v. Sinito, 723 F.2d 1250, 1261 (6th
Cir. 1983); United States v. Valenzuela, 596 F.2d
1361, 1365 (9th Cir. 1979); United States v.
Michel, 588 F.2d 986, 1000 & n.15 (5th Cir.
1979). Nonetheless, this court has held that a
CCE charge may be established by two or more
predicate offenses, even when the jury
instructions require three. See United States v.
Baker, 905 F.2d 1100, 1104 (7th Cir. 1990).
Because the jury unanimously agreed that each
defendant had committed two of the predicate
offenses with which he was charged (i.e., use of
minor to further conspiracy and use of minor to
avoid detection), the omission of the instruction
was a harmless error and the CCE convictions
stand. See Smith, 223 F.3d at 567-68; Jackson,
207 F.3d at 919; Lanier v. United States, 205
F.3d 958, 964-65 (7th Cir. 2000).


  B.   Gholson

  Gholson was convicted and sentenced on the CCE
count. The applicable statute prescribes a
mandatory term of life imprisonment for those
convicted of a CCE if "such person is . . . one
of several such principal administrators,
organizers, or leaders" and the CCE sold a
certain quantity of drugs or reaped a certain
amount of receipts. 21 U.S.C. sec. 848(b).
Gholson challenges the district court’s
determination at sentencing that he was a
"principal"--a finding that we review only for
clear error. See United States v. Brown, 900 F.2d
1098, 1101 (7th Cir. 1990).

  Gholson was the top unincarcerated GD member
for one month and he sat as a board member from
April to September 1996. A seat on the Board of
Directors was the highest attainable position,
subordinate only to Larry Hoover. This court has
concluded in the past that individuals holding
the rank of Governor were "principals" for
sentencing purposes, see Jackson, 207 F.3d at
919. The district court’s finding that board
members, who ranked above Governors, were also
principals is therefore unexceptional. The
sentencing judge recognized that Gholson’s
"leadership may have been relatively brief," but
the judge still decided to sentence Gholson to
life imprisonment. Gholson has cited no case law
that makes it legal error to fail to discount a
principal’s sentence if his period of leadership
was brief. The district court’s determination
that Gholson was a "principal" for purposes of
CCE sentencing was not clearly erroneous.

  Even if Gholson was not a principal, he could
still have been sentenced to life based on the
CCE charge. The base offense level for the CCE
charge was 42 (base offense level of 38 based on
the quantity of drugs, sec. 2D1.1(c)(1), plus
four, sec. 2D1.5). When we add two levels for
possession of a firearm, sec. 2D1.1(b)(1), we end
up at level 44, which carries with it a mandatory
life sentence. See U.S.S.G. Ch. 5, Pt. A.
Similarly, Gholson could have been sentenced to
life for the conspiracy charge. The district
court found that Gholson’s sentencing level for
the conspiracy was at least 45: starting out with
a base offense level of 38 based on the amount of
drugs involved in the conspiracy, sec.
2D1.1(c)(1), adding one point for use of minors,
sec. 3B1.4, adding two points for possession of
a firearm, sec. 2D1.1 (b)(1), and adding four
points for leadership in the conspiracy, sec.
3B1.1(a). Again, a life sentence is required for
any sentencing level over 43. U.S.S.G. Ch. 5, Pt.
A. Thus any error the court may have made in
determining that Gholson was a "principal" would
have been harmless.


 C.   Hatcher

  Hatcher challenges the introduction of certain
evidence at trial. The government presented
evidence that Hatcher had been indicted in the
first round of GD indictments in August 1995, had
been released on bond, and then failed to appear
at a hearing on a motion to revoke his bond. A
bench warrant was issued for his arrest and he
was later apprehended after a police chase ended
in a crash of his van, in which the police found
36 "gem packs" of crack. (The term "gem pack"
refers, in the drug trade, to a small translucent
blue plastic bag used to package cocaine base.
See, e.g., United States v. Robinson, 30 F.3d
774, 780 n.1 (7th Cir. 1994).) The district
court’s admission of this evidence is reviewed
for abuse of discretion. United States v. Hunter,
145 F.3d 946, 951 (7th Cir. 1998).

  The probative value of evidence of flight
depends on the strength of the inferences that
can be drawn from the flight to actual guilt of
the crime charged. United States v. Rodriguez, 53
F.3d 1439, 1451 (7th Cir. 1995). Hatcher argues
that he was running not to avoid prosecution, but
to avoid pre-trial detention while he awaited
prosecution. We fail to see how the latter motive
is any less probative of guilt than the former.
His bond was going to be revoked because of his
continuing involvement in the drug conspiracy. It
was reasonable for the jury to infer guilt of
drug crimes from the fact that he ran from law
enforcement personnel because he realized that
they wanted to revoke his bond because of his
involvement in drug crimes.
  Hatcher also challenges the evidence of the
drugs found in his van. He argues that because
the conspiracy charged in the indictment ended
six months before the drugs were found, the
evidence is irrelevant. See United States v.
Betts, 16 F.3d 748, 758 (7th Cir. 1994)
(discovery of drugs 14 months after conspiracy
had ended had no probative value in establishing
defendant’s knowledge and intent regarding the
conspiracy). But the part of the conspiracy
charged in the indictment here necessarily had to
end the day of the indictment--Hatcher makes no
attempt to establish that the drug conspiracy
itself had actually ended. The district court
properly exercised its discretion in admitting
the evidence of flight.

  Finally, Hatcher challenges a reference to
George Ogden made in the prosecutor’s closing
statement. During trial, the prosecution alleged
that 13-year old Ogden had been used by the gang
leaders to engage the police in a firefight to
divert attention from a secret GD meeting. The
court refused to allow testimony stating that
Ogden was the shooter and instead permitted only
statements indicating that Ogden ran from the
alley following the firefight. In the closing
argument, however, the prosecutor referred to
Ogden as the shooter. Hatcher moved for a new
trial on the basis of prosecutorial misconduct.
The district court denied the motion, and our
review is once again for abuse of discretion.
United States v. Williams, 81 F.3d 1434, 1438
(7th Cir. 1996). The district court found that
the prosecutor’s comments had not "so infected
the trial with unfairness as to make the
resulting conviction a denial of due process."
Donnelly v. DeChristoforo, 416 U.S. 637 (1974).
The judge told the jury, specifically in regard
to this statement, that it was free to disregard
any jury arguments that were not supported by the
evidence. We assume that juries follow the
instructions they are given. United States v.
Linwood, 142 F.3d 418, 426 (7th Cir. 1998). The
judge’s cautionary words, coupled with the fact
that this was a single remark from the
prosecutor, satisfy us that the court’s decision
to deny the new trial was not an abuse of
discretion.


  D.   Jones

  During the trial, defendant Jones moved for a
severance from Hatcher on the ground that
Hatcher’s theory of defense (that the GD’s main
purpose was community development) was
antagonistic to Jones’s defense (that the
narcotics conspiracy was confined to the GD
leadership). The district court denied this
motion to sever; we review this decision for
abuse of discretion. See Smith, 223 F.3d at 573.
The district court should only grant a severance
under Rule 14 of the Federal Rules of Criminal
Procedure when there is a serious risk that a
joint trial would compromise a specific trial
right of one of the defendants. Zafiro v. United
States, 506 U.S. 534, 539 (1993). In order to
successfully appeal the denial of a severance
motion, the defendant must establish actual
prejudice resulting from the refusal to sever.
United States v. Peters, 791 F.2d 1270, 1287 (7th
Cir. 1986).

  We conclude that the district court’s denial of
Jones’s motion to sever was not an abuse of
discretion. Hatcher’s defense was not necessarily
antagonistic to Jones’s defense. It was possible
that the main purpose of the GD gang was
community development, but that there was a small
group in leadership who were engaged in drug
trafficking. And even if the defenses were
antagonistic, "mutually antagonistic defenses are
not prejudicial per se." Smith, 223 F.3d at 574,
citing Zafiro, 506 U.S. at 538. Moreover, Jones
has failed to establish any prejudice resulting
from the court’s refusal to sever.

  Jones also moved for a mistrial based on the
court’s treatment of witness Larry Hoover and his
testimony. Hoover gave direct testimony and then
belligerently refused to answer questions on
cross. After admonishing Hoover for his failure
to follow the rules of the trial, the district
court ordered his testimony stricken. Jones moved
for a mistrial, arguing that the jury would be
improperly biased by Hoover’s rude conduct and
manner. The district court denied this motion and
gave proper instructions to the jury regarding
their treatment of Hoover’s testimony and
actions. The court’s denial of Jones’s motion for
a mistrial is reviewed for abuse of discretion.
United States v. Roe, 210 F.3d 741, 747 (7th Cir.
2000). Jones does not dispute the district
court’s confidence in the jury’s ability to
follow these instructions; nor does he deny that
Hoover’s direct testimony actually helped his
case. Jones has given us no basis for finding an
abuse of discretion in the court’s refusal to
grant a mistrial.

  Like Hatcher, Jones also challenges the district
court’s admission of certain evidence regarding
prior bad acts. At trial, a police officer
testified that five years earlier he had pulled
over a car driven by Jones and had confiscated
$25,000 from the car. Jones told the police
officer that he had been "doing some pickups for
a friend." Jones argued that this evidence was
inadmissible under Federal Rule of Criminal
Procedure 404(b) as evidence presented solely to
show a propensity to commit crime. The government
argued, and the district court agreed, that the
jury could reasonably infer that the money
involved was drug proceeds, thus linking Jones to
the drug conspiracy. Considering the fact that
the incident occurred within the time frame of
the alleged conspiracy, as well as other evidence
of Jones’s role, we find no abuse of discretion
here.

  Additionally, Cook County State’s Attorney’s
Office Investigator Maurice Macklin testified
that in 1996, he had a run-in with Jones while
interviewing one of Jones’s neighbors, Angela
Wright, on an unrelated matter. Jones first
admonished Wright that she "better not tell him
nothing about me." Jones then drew his gun and
threatened to shoot both Wright and Macklin.
Eight to ten other people then began to approach
Macklin. Jones did not object to this testimony
at trial, which means that we review the matter
now only for plain error. Stringel v. Methodist
Hospital of Ind., Inc., 89 F.3d 415, 421 (7th
Cir. 1996). It was not plain error for the
district court to admit this evidence--it showed
that Jones was an authority figure in the
neighborhood. Other evidence had established that
Jones was the regent in the area around 73rd and
Greenwood, lived on that block, and conducted
drug sales and gang meetings there.

III

  It may seem harsh for the standard of review to
make as significant a difference in the outcome
of a case as it may have done in these appeals,
but a more global perspective shows that such a
characterization would overlook the broader
interests that these standards serve. A standard
like abuse of discretion or clear error reflects
the allocation of responsibilities between the
first instance court and the appellate court. The
plain-error standard, which we are required to
apply when a district court has not been given
the first opportunity to correct alleged
mistakes, see Federal Rules of Criminal Procedure
52(b), strikes a balance among the proper
functioning of the adversary system, efficiency
in managing litigation, and the demands of
justice. The law, the record, and these standards
require us to Affirm the judgments of the district
court in the six appeals before us.
