In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1290

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

QUAN JOHN RAY, a/k/a "Q,"

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 CR 379--Suzanne B. Conlon, Judge.


Argued September 8, 2000--Decided January 24, 2001



      Before FLAUM, Chief Judge, POSNER and ROVNER,
Circuit Judges.

      ROVNER, Circuit Judge. Quan John Ray appeals his
convictions for murder in furtherance of a
continuing criminal enterprise, murder of a
person assisting a federal criminal
investigation, distribution of cocaine, and
conspiracy to possess with intent to distribute
cocaine, crack cocaine, heroin and marijuana. Ray
raises a number of challenges to his jury trial,
contending that (1) he could not be convicted of
murder in furtherance of a continuing criminal
enterprise ("CCE") unless he was also charged
with being a member of the enterprise; (2) the
evidence was insufficient to convict him of
murder in furtherance of a CCE or murder of a
person assisting a federal criminal
investigation; (3) instructing the jury that they
"should" acquit rather than "must" acquit if the
government failed to meet its burden constituted
reversible error; (4) his conviction for
narcotics distribution violated the double
jeopardy clause; and (5) the court erred in
refusing to excuse for cause a juror who
allegedly gave inconsistent answers on a jury
form and in voir dire. We affirm.

I.

      Ray was a member of the Gangster Disciples, a
street gang that controlled narcotics
distribution in certain parts of Chicago. The
gang was organized in a strict hierarchical
structure, and imposed a code of conduct on its
members. The group was led by Larry Hoover, who
held the rank of chairman of the board. The other
ranks in descending order were board members,
governors, assistant governors, enforcers,
regents, assistant regents, coordinators, chiefs
of security, treasurers and foot soldiers. Ray’s
role in the gang was that of enforcer and
security guard. Ray also sold drugs while working
for the gang, at one point selling a small amount
of crack cocaine to an undercover Chicago police
officer. He provided security for Darryl Lamont
Johnson, a powerful board member for the gang. As
an enforcer, Ray was called upon to punish gang
members who violated the rules. One of the most
important rules was to maintain silence and
secrecy regarding the gang’s activities. At some
point, gang leadership became aware that one
member, Charles Banks, was cooperating with
federal law enforcement authorities in an
investigation of the Gangster Disciples, in
violation of the silence and secrecy rule.

      When Darryl Johnson learned of this violation,
he ordered Ray to murder Banks. After Ray’s first
attempt to kill Banks failed, Johnson once again
ordered Ray to murder Banks. On June 9, 1995, Ray
succeeded in his appointed task. Ray obtained a
gun from a gang member, approached Banks from
behind as Banks was talking with another gang
member, and shot him in the back of the head
twice. As Banks fell to the ground, Ray
repeatedly shot him in the face and head. A
number of gang members witnessed the murder. Ray
fled the scene and reported back to gang
leadership that he had killed Banks. Johnson then
purchased a used Oldsmobile for Ray in payment
for the murder. Both Ray and Johnson were
concerned about the consequences of the murder
and Johnson instructed fellow gang members to
blame the murder on a rival gang. Ray warned
other gang members that they could face the same
fate as Banks if they violated the rule against
silence and secrecy. Johnson decided that Ray
should leave the area for a while and keep a low
profile because Chicago law enforcement was
executing search warrants. Ray traveled to
Minnesota in order to evade detection.

      A grand jury issued a fifty-one count
indictment charging Ray and Johnson with a
variety of offenses. Four counts specifically
applied to Ray. Count One charged Ray with
conspiring to possess with intent to deliver
cocaine, cocaine base, heroin and marijuana.
Count Seven charged him with murder of a person
assisting a federal criminal investigation. Count
Eight alleged that Ray committed murder in
furtherance of a continuing criminal enterprise,
and Count Nine charged him with distributing
cocaine to an undercover Chicago police officer.
After the government notified Ray of its
intention to seek the death penalty for the
murder counts, Ray moved to sever his case from
Johnson’s and hold a separate trial. The court
granted the motion and Ray was tried apart from
Johnson. The jury found Ray guilty on all four
counts, but determined that he should not be
sentenced to death. The district court sentenced
Ray to life imprisonment without the possibility
of release on Counts Seven and Eight, but stayed
sentencing on the drug counts pending appeal. Ray
appealed, but we determined that we lacked
jurisdiction because there was not a final
judgment due to the incomplete sentencing. We
remanded to allow the district court to complete
the sentencing. The district court sentenced Ray
to life imprisonment on Count One and to twelve
months imprisonment on Count Nine. With a final
judgment now in hand, Ray again appeals his
conviction on all four counts.

II.

      Ray raises five main challenges to the jury
verdict. First, he maintains that he could not be
convicted of murder in furtherance of a CCE where
he was not charged with nor convicted of being a
member of the CCE. He argues that this is
especially problematic in light of inadequate and
improper jury instructions relating to that
count. Second, he alleges that the evidence on
both of the murder counts was insufficient
because the witnesses against him were incredible
as a matter of law. Third, he contends that the
jury instructions were fatally flawed because
they directed the jury that it "should" acquit
rather than "must" acquit if the government
failed to meet its burden. Fourth, he maintains
that his conviction for distributing cocaine
violated the double jeopardy clause because he
had already been convicted in state court of an
identical offense for the same transaction.
Finally, he claims that the court erred in
refusing to dismiss for cause a juror he believes
gave contradictory answers on a jury form and in
voir dire.

A.

      Ray raises a two-pronged attack on his
conviction for murder in furtherance of a
continuing criminal enterprise. We review de novo
his statutory interpretation claim that a person
may not be convicted of murder in furtherance of
a CCE without also being charged with and
convicted of being engaged in a CCE. United
States v. Jain, 174 F.3d 892, 897 (7th Cir.
1999), cert. denied, 528 U.S. 889 (1999). Because
Ray did not object to the jury instruction in
question at trial, we review the district court’s
instructions for plain error. United States v.
Gee, 226 F.3d 885, 890 (7th Cir. 2000). In
addition to finding that the error is plain,
meaning obvious or clear, we must find that the
error affects substantial rights before we will
reverse a conviction under this standard. Id.;
United States v. Olano, 507 U.S. 725, 732-34
(1993).

      The statute under which Ray was charged and
convicted reads, in pertinent part:

[A]ny person engaging in or working in
furtherance of a continuing criminal enterprise
. . . who intentionally kills or counsels,
commands, induces, procures, or causes the
intentional killing of an individual and such
killing results, shall be sentenced to any term
of imprisonment, which shall not be less than 20
years, and which may be up to life imprisonment,
or may be sentenced to death.

21 U.S.C. sec. 848(e)(1)(A). Count Eight of the
indictment tracked the language of the statute,
charging that Ray and Darryl Johnson, "while
engaged in and working in furtherance of the
continuing criminal enterprise described in Count
Two of this indictment, intentionally killed and
counseled, commanded, induced, procured and
caused the intentional killing of Charles ’Jello’
Banks, and such killing resulted." Ray was not
charged in Count Two of the indictment, and
contends that he may not be charged with nor
convicted of a murder in furtherance of a CCE
unless he also was charged with and convicted of
engaging in a CCE. The government’s theory at
trial was that so long as it proved that Ray
committed the murder in furtherance of the CCE,
it need not prove that he was engaged in the CCE.
The government fashioned jury instructions to
account for this theory, and the district court
directed the jury that it must find that Ray was
"engaging in or working in furtherance of" the
CCE charged when he participated in the killing
of Charles Banks. Tr. at 1522. Because Ray was
not charged with being engaged in the CCE, and
because Darryl Johnson was being tried
separately, the court further instructed the jury
that before they could consider whether Ray
committed an act while engaging in or in
furtherance of a CCE, the government must
establish beyond a reasonable doubt that a CCE
existed. The court then instructed the jury using
the definition of CCE provided in 21 U.S.C. sec.
848(c), with a slight modification that Ray finds
objectionable. The statute defines CCE by stating
that "a person is engaged in a continuing
criminal enterprise if" he commits certain
felonies as part of a continuing series of
violations which are undertaken with five or more
other persons. There are a number of other
requirements as well in order to meet the
statutory definition but the language to which
Ray objects is contained in the portion quoted.
The district court directed the jury that they
could find a CCE if "at least one person"
committed a continuing series of offenses, acting
in concert with five or more other persons. Ray
complains that there is "no legal basis for
changing the statute’s prohibition against the
acts of the person to make a finding that ’at
least one’ other person committed the acts with
which the Defendant is now alleged to have acted
in concert." Appellant’s Brief at 14. We take
Ray’s objection to be that by changing the
language of the statute, the court expanded
liability beyond persons engaged in the CCE to
persons committing acts in furtherance of the
CCE. Ray’s essential objection is that he could
not be charged with committing a murder in
furtherance of a CCE unless he was also charged
with being engaged in a CCE. Because he was not
charged in the primary CCE count, he contends he
could not be charged with murder in furtherance
of the CCE.

      The government maintains that we answered this
question decisively in United States v. Cooper,
19 F.3d 1154 (7th Cir. 1994). There the defendant
was charged with murder while working in
furtherance of a continuing criminal enterprise.
On appeal, the defendant complained that because
he was not engaged in the drug activities that
comprised the felony charges behind the CCE, and
because there was no connection demonstrated
between the murder and any drug transactions, he
could not be convicted of murder in furtherance
of the CCE. He contended that the "murder in
furtherance" provision applied only to drug
kingpins actually engaged in the CCE. We
disagreed because such a limitation in the
application of the statute would render the words
"in furtherance of" superfluous and without
substantive meaning. In effect, every person
charged with murder in furtherance of the CCE
would also have to be charged with engaging in
the CCE, contrary to the express language of the
statute. We then defined the term "in furtherance
of" a CCE to mean working to promote or advance
the interests of a CCE. 19 F.3d at 1165.

      The Tenth Circuit expounded on this theme in a
case where the defendant caused a murder that,
because of the mistaken identity of the victim,
did not actually further the goals of the CCE.
See United States v. McCullah, 76 F.3d 1087 (10th
Cir. 1996), cert. denied, 520 U.S. 1213 (1997).
The court held that the defendant need not be
engaged in the drug trafficking portion of the
enterprise to be convicted under section 848(e)
because "the reach of section 848(e) extends to
hired henchmen, like [the defendant], who commit
murder to further a drug enterprise in which they
may not otherwise be intimately involved." 76
F.3d at 1103. In other words, a person charged
with committing a murder in furtherance of a CCE
under section 848(e) need not be engaged in the
CCE. The court also held that the key factor was
that the murder was designed and intended to
further the enterprise, notwithstanding any
failure to fulfill that goal. Id.

      We turn then to Ray’s claim in this case. Using
the same reasoning we applied in Cooper, and the
Tenth Circuit applied in McCullah, Ray need not
be charged with engaging in the CCE so long as
the government is able to prove that a CCE
existed and Ray committed murder in furtherance
of the CCE. The jury instructions defining the
CCE closely tracked the statutory language and we
find no error in the court’s choice of words. The
use of the phrase "at least one person" instead
of "a person" is irrelevant because the person
engaged in the CCE and the person charged with
committing murder in furtherance of the CCE need
not be the same person. A defendant need not be
charged with engaging in the CCE to be charged
with and convicted of committing murder in
furtherance of the CCE. To hold otherwise would,
as we stated in Cooper, render the words "in
furtherance of" superfluous. We therefore affirm
Ray’s conviction on Count Eight.

B.

      Ray next contends that the evidence against him
on both of the murder counts was insufficient
because the witnesses against him were incredible
as a matter of law. The evidence on those counts
consisted entirely of the vague and contradictory
testimony of incredible gang members who were
impeached, according to Ray. Some of the gang
members testified under grants of immunity and
Ray maintains this violated 18 U.S.C. sec.
201(c)(2), which prohibits giving anything of
value in exchange for testimony. Finally, Ray
argues that there was no physical evidence tying
him to the murder and no unbiased eyewitness
testimony. Ray faces a formidable hurdle to
successfully challenge the sufficiency of the
evidence. See United States v. Van Dreel, 155
F.3d 902, 906 (7th Cir. 1998). Viewing the
evidence in the light most favorable to the
government, we reverse only if the record
contains no evidence from which the jury could
find guilt beyond a reasonable doubt. United
States v. Combs, 222 F.3d 353, 362 (7th Cir.
2000). "Credibility determinations are within the
province of the jury, and we reverse such
determinations on appeal only under exceptional
circumstances, such as ’where it was physically
impossible for the witness to observe that which
he claims occurred, or impossible under the laws
of nature for the occurrence to have taken place
at all.’" United States v. Williams, 216 F.3d
611, 614 (7th Cir. 2000) (citing United States v.
Ruiz, 178 F.3d 877, 880 (7th Cir. 1999), cert.
denied, 528 U.S. 897, 120 S.Ct. 229, 145 L.Ed.2d
192 (1999) (quoting United States v. Hach, 162
F.3d 937, 942 n.1 (7th Cir. 1998), cert. denied,
526 U.S. 1103, 119 S.Ct. 1586, 143 L.Ed.2d 680
(1999))). Ray has not alleged any such special
circumstances here, and so his challenge to the
sufficiency of the evidence based on the
credibility of impeached gang members is without
merit. Williams, 216 F.3d at 614.

      We also reject Ray’s challenge under Section
201(c)(2). Ray maintains that the testimony of a
number of witnesses against him was tainted by
the fact that they were offered leniency in
exchange for their testimony, in violation of 18
U.S.C. sec. 201(c)(2). That statute prohibits
offering anything of value to a person in
exchange for their testimony. It is well-settled
in this Circuit that the government’s grant of
leniency is not a "thing of value" under the
statute. See United States v. Febus, 218 F.3d
784, 796 (7th Cir. 2000), cert. denied, 121 S.Ct.
587 (2000). Moreover, Section 201(c)(2) creates
criminal liability, not a private right of action
or rule of evidence. As such it does not provide
the basis for the exclusion of evidence. Id.
Finally, the government points out that there was
evidence corroborating the testimony of the gang
members, contrary to Ray’s claim. For example,
the government presented tapes of telephone calls
relating to the purchase of a car for Ray in
payment for the murder, and to the banishment of
Ray from Chicago in order to evade detection by
the police following the murder. For all of these
reasons, Ray’s challenge to the sufficiency of
the evidence fails.

C.

      Ray objects to the district court’s instruction
to the jury that it "should" acquit rather than
"must" acquit if the government failed to meet
its burden. Ray did not object to this
instruction at trial and therefore we review for
plain error. United States v. Moore, 115 F.3d
1348, 1362 (7th Cir. 1997). The language used by
the district court in instructing the jury is
modeled on Seventh Circuit Pattern Jury
Instruction 4.01, which states, in relevant part:
If you find from your consideration of all of the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should
find the defendant guilty [of that charge]. If,
on the other hand, you find from your
consideration of all of the evidence that any of
these propositions has not been proved beyond a
reasonable doubt, then you should find the
defendant not guilty [of that charge].

Committee on Federal Criminal Jury Instructions
for the Seventh Circuit, November 30, 1998,
Instruction 4.01./1 This is not the first time
a defendant has raised this particular challenge,
and as we stated previously:

"Must" is preferable; but it is hardly plausible
that the jury supposed that while they "should"
acquit [the defendant] if he was not guilty
beyond a reasonable doubt, they didn’t have to
acquit him if they didn’t want to. Juries know
better than that. We add that the judge also said
that the jury "should," not "must," convict [the
defendant] if they found that he was guilty
beyond a reasonable doubt. In context, "should"
was imperative--not hortatory--throughout the
instruction.

United States v. Kerley, 838 F.2d 932, 940 (7th
Cir. 1988). Although we continue to believe that
"must" is preferable to "should," the use of
"should" was not plain error.

D.

      We turn then to Ray’s claim that his conviction
for distributing cocaine violated the double
jeopardy clause because he had already been
convicted in state court of an identical offense
for the same transaction. Although he concedes
that the dual sovereignty doctrine normally
allows successive prosecutions in state and
federal court for the same act, he contends that
under the particular facts of this case, that
doctrine should not apply. The distinguishing
fact here, according to Ray, is that the only
witness against him in the federal prosecution
was the undercover Chicago police officer who
also testified against him in the state
proceeding. Moreover, he points out that the case
agent in the federal prosecution was also a
Chicago police officer. Under Blockburger v.
United States, 284 U.S. 299 (1932), Ray maintains
that there were no elements of the crime in the
federal case that were different from the
elements of the state offense, and thus the two
offenses were not sufficiently distinguishable to
permit imposition of cumulative punishment.

      We review double jeopardy claims de novo, but
defer to the district court’s factual findings.
United States v. Lippitt, 180 F.3d 873, 876 n.4
(7th Cir. 1999), cert. denied, 528 U.S. 958
(1999). Ray’s arguments fail under well-
established precedent. As Ray concedes, the
Double Jeopardy Clause is inapplicable when two
different sovereigns prosecute the same
defendant. Heath v. Alabama, 474 U.S. 82, 88
(1985); United States v. Tirrell, 120 F.3d 670,
676 (7th Cir. 1997). In Tirrell, we held that a
state conviction did not preclude a federal
prosecution even when the two offenses amounted
to the same offense under Blockburger and its
progeny. 120 F.3d at 677. Moreover, the use of
common witnesses for both the state and federal
prosecutions does not violate the Double Jeopardy
Clause. United States v. Jordan, 870 F.2d 1310,
1313 (7th Cir. 1989), cert. denied, 493 U.S. 831
(1989). We therefore affirm Ray’s conviction for
distribution of cocaine.

E.

      Finally, Ray challenges the district court’s
refusal to dismiss for cause a juror that Ray
believes gave contradictory answers on a jury
form and in voir dire. According to Ray, the
prospective juror (whom we’ll call Juror Doe)
testified during voir dire that he had taught
criminalistics to police officers fifteen years
earlier, and that he had not had any contact with
law enforcement in the last twenty years./2 Ray
states that in the juror questionnaire Juror Doe
filled out before voir dire, he stated he had
contact with various California police agencies,
and officers in commanding positions. Juror Doe
also stated in the questionnaire that he was a
consultant in security and antiterrorist
activities. Ray believed these responses were
contradictory and asked the court to excuse Juror
Doe for cause. The court declined and Ray then
used a peremptory challenge to exclude Juror Doe
from the jury pool. The government characterizes
Juror Doe’s responses somewhat differently.
According to the government, Juror Doe told the
court in voir dire that he taught criminalistics
to police officers in California approximately
fifteen years ago, and had not had any contact
with his students since leaving that position,
with the exception of receiving Christmas cards
from some of them. On the juror questionnaire,
according to the government, Juror Doe responded
to a question about "family members, close
friends employed by local law enforcement" by
listing "various California police agencies
(former students)." The government claims these
responses are not inconsistent because the
questions focused on different areas. The
questions posed by the court during voir dire
related to contacts with law enforcement, whereas
the questionnaire related to friends and
relatives.

      Unfortunately, the juror questionnaire does not
appear in the record, so we must base our
analysis on a review of the transcript alone. The
colloquy between the court and Juror Doe
evidences some confusion on the issue of contacts
with law enforcement. After resolving a number of
unrelated issues, the court asked Juror Doe
whether there was anything he wished to bring to
the court’s attention that might bear on his
ability to base a verdict solely on the evidence
presented in court. Juror Doe responded that "15
years ago I was a professor at San Jose State
University, and--in administration of justice. I
taught criminalistics to police officers." The
court then asked if this would affect Juror Doe
in some way and he replied, "I don’t think so
because I’ve been out of that contact--that arena
since moving to Chicago 20 years ago." In order
to clarify the disparity in time frame between
when he was teaching police officers in
California and when he moved to Chicago, the
court asked Juror Doe if he had any contact with
law enforcement "in the last 20 years since you
left San Jose State?" Juror Doe responded, "No I
haven’t. Just former students that send me
Christmas cards." When Juror Doe left the room,
Ray’s attorney objected on the grounds that Juror
Doe had contradicted himself. Counsel also
pointed out that in Doe’s questionnaire, he had
responded to a question about belonging to
"churches, associations, etc." by stating he was
a "consultant security/antiterrorist." Counsel
asked the court to question Juror Doe about this
answer. The court agreed to recall Juror Doe for
further questioning but stated that his answers
were not inconsistent because the oral questions
were posed in a different context than the
written questions.

      The court recalled Juror Doe and asked him
about his current job. He replied that he was in
management, and he confirmed to the court that
this job did not involve security. Upon further
questioning, Juror Doe revealed that he was also
a reservist for the Federal Emergency
Mobilization Agency, and that his specialty there
was in "antiterrorists." He stated he had "a
secret clearance from the government," and would
be activated into service if Congress declared
war. His job would be as a "paramilitary" and he
would also work for the government "in the area
of antiterrorists." His position was as a
National Defense Executive Reservist, and he
performed these duties on a volunteer basis. He
clarified for the court that he was simply on
call, and that once a year, he was updated by the
military and the CIA on different antiterrorist
groups throughout the United States. Upon
questioning, he confirmed to the court that none
of these activities would influence his view of
the evidence in this case.

      Defense counsel challenged Juror Doe for cause
based on the fact that he had represented to the
court that he was not involved in security but
had indicated on his questionnaire that he was a
security consultant. On the basis that Juror Doe
was "not entirely candid with the Court about all
of what his current employment is and current
activities are," counsel moved to dismiss Juror
Doe for cause. The court overruled Ray’s
objections, and stated, "I don’t think he’s been
dishonest with us. It’s a rather complex
situation, and I think we’re looking at several
things out of context." Ray then exercised a
peremptory challenge against Juror Doe. Although
the colloquy is not a model of clarity, the
district court was correct that Juror Doe
answered consistently on the issue of whether he
was involved in security. He answered that his
primary employment did not involve security but
that he held a volunteer position with a federal
agency, and that position did involve security.
The court also clarified Juror Doe’s answers
involving his contacts with law enforcement,
verifying that he was not currently in contact
(with the exception of Christmas cards) with any
former law enforcement students. We afford great
deference to the district court based on the
judge’s unique opportunity to assess juror
credibility during voir dire. United States v.
Nururdin, 8 F.3d 1187, 1190 (7th Cir. 1993),
cert. denied, 510 U.S. 1206 (1994). The district
court expressly found that Juror Doe was not
misleading the court, but rather that the juror’s
job situation was complex and counsel was taking
certain oral and written answers from the juror
out of context. The district court did not abuse
its discretion in declining to dismiss Juror Doe
for cause.

III.

      In summary, we find no error in the indictment
or the jury instructions regarding murder in
furtherance of a CCE. Moreover, the evidence was
sufficient to convict Ray of murder in
furtherance of a CCE as well as murder of a
person assisting a federal criminal
investigation. Directing the jury that it
"should" acquit if the government failed to meet
its burden was not erroneous, and Ray’s federal
conviction for distributing cocaine was not
precluded by his state prosecution for the same
offense. Finally, the court did not abuse its
discretion in refusing to dismiss for cause a
juror who gave somewhat confusing responses to
the court during voir dire. For all of these
reasons, we AFFIRM the judgment of the district
court.



/1 The bracketed material, according to Committee
notes, is optional language that may be used in
appropriate cases.

/2 Criminalistics is defined as scientific crime
detection.
