United States v. Martin, Troy

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

T ROY M ARTIN , E DDIE B ELL,

JOHN B RAYBOY, M ARIO T AYLOR

and JEROME T ERRELL,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:04-cr-495—Rebecca R. Pallmeyer, Judge.

A RGUED O CTOBER 7, 2009—D ECIDED A UGUST 24, 2010

Before R IPPLE, K ANNE and SYKES, Circuit Judges.

R IPPLE, Circuit Judge. The defendants have been con-

victed of violating various provisions of 21 U.S.C. §§ 841,

843 and 846, for their respective roles in a narcotics con-

2 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

spiracy.1 They have timely appealed their convictions on

various grounds.2 For the reasons set forth in this opin-

ion, we affirm the judgment of the district court. How-

ever, for certain defendants, we order limited remands

for resentencing.

I

BACKGROUND

On September 7, 2004, a grand jury indicted the defen-

dants and many other individuals for various narcotics

and firearm offenses. The indictment described the defen-

dants’ participation in a sprawling narcotics-distribu-

tion network on the west side of Chicago, Illinois, that

had been in existence since 1998. A large part of the

network consisted of a street gang called the “Mafia

Insane Vice Lords” or the “Mafia Insanes.” That gang was

organized hierarchically and employed violence to con-

trol “drug spots” where narcotics were sold. Individual

sellers paid a fee to the gang’s leadership (a “street tax”)

in return for supply of narcotics, protection and the

ability to sell at the drug spots. Troy Martin was the

founder and “king” of the Mafia Insanes. Eddie Bell and

Donnell Simmons were high-ranking members of the

Mafia Insanes’ leadership who supplied narcotics to the

1

The jurisdiction of the district court is based on 18 U.S.C.

§ 3231.

2

The jurisdiction of this court is based on 28 U.S.C. § 1291.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 3

sellers and collected street taxes from the drug spots.3

Jerome Terrell was a member of another gang called

the “Cicero Insane Vice Lords” and also supplied

narcotics to Mr. Simmons. Mario Taylor was a member

of another street gang called the “Four Corner Hustler”

gang; Mr. Taylor coordinated the supply of narcotics

to Mr. Simmons and Mr. Terrell. John Braboy assisted

Mr. Taylor with packaging and transporting narcotics

to Mr. Simmons.4

3

Donnell Simmons’s appeal has been severed from this

consolidated appeal. References to Mr. Simmons in this opin-

ion are for contextual purposes only.

4

The indictment charged Messrs. Martin, Bell, Simmons,

Taylor, Braboy and Terrell with conspiracy to possess and

distribute cocaine in violation of 21 U.S.C. § 846 (“Count One”).

Mr. Martin also was charged with eighteen counts of using

a telephone to facilitate a narcotics conspiracy in violation of

21 U.S.C. § 843(b). Mr. Bell was charged with one count of

distributing heroin in violation of 21 U.S.C. § 841(a)(1) and four

telephone counts in violation of § 843(b). (The Government

eventually dismissed the distribution count against Mr. Bell.)

Mr. Simmons was charged with two distribution counts in

violation of § 841(a)(1). Mr. Taylor was charged with five

telephone counts in violation of § 843(b) and five possession

counts in violation of § 841(a)(1). Mr. Braboy was charged with

two possession counts in violation of § 841(a)(1). (We note

that the indictment and the caption of this appeal refer to

Mr. Braboy as “Brayboy.” However, in his appellate brief, he

informs us that the proper spelling of his name is “Braboy.” See

Braboy Appellant’s Br. 2 n.3. Accordingly, we shall refer to him

(continued...)

4 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

Many of the defendants pleaded guilty. The remaining

defendants proceeded to trial. In August 2006, Messrs.

Martin, Bell and two others were tried and convicted. In

April 2007, Messrs. Taylor and Braboy were tried and

convicted. In July 2007, Mr. Terrell was tried alone

and convicted. At each trial, the Government’s evidence

consisted primarily of wiretap recordings that the Gov-

ernment had obtained during its investigation into the

conspiracy, as well as the testimony of police officers,

federal agents and cooperating witnesses. Additional

facts shall be provided on an issue-by-issue basis.

II

ANALYSIS

A. Challenge to the Admissibility of the Wiretap Re-

cordings

1.

In December 2002, the Government began utilizing

the procedures described in Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, see 18 U.S.C.

§§ 2510-22, for intercepting wire communications of

suspected members of the conspiracy. Several suspects’

phones were targeted during the Government’s inves-

tigation. We are concerned primarily with the Govern-

4

(...continued)

as “Braboy” in this opinion.) Mr. Terrell was charged with

two distribution/possession counts in violation of § 841(a)(1)

and three telephone counts in violation of § 843(b).

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 5

ment’s wiretaps on the phones of Messrs. Martin and

Simmons.

Each time the Government desired to intercept com-

munications on a particular phone, it sought authoriza-

tion from the Chief Judge of the United States District

Court for the Northern District of Illinois. Included with

the Government’s wiretap applications were probable

cause affidavits that identified the phone to be targeted

and a description of the subject matter of the communica-

tion that the Government expected to intercept. The

affidavits also described the bases for the Government’s

belief that criminal matters would be discussed. The

Chief Judge issued orders authorizing the interception

of communications on the phones for thirty days at a

time. If the Government desired to continue a phone

intercept for longer than thirty days, the Government

would submit to the Chief Judge a renewal application,

including updated probable cause affidavits.

The Government recorded the wiretap intercepts on

magneto-optical (“MO”) disks. MO disks cannot be edited.

At the completion of each thirty-day intercept period for

a particular phone, irrespective of whether the Govern-

ment had obtained an extension to continue its wire-

tap on that phone, the Government sealed, in the

Chief Judge’s presence, the original MO disks.5 The

Government kept the sealed MO discs in a DEA evidence

5

As explained more fully below, the relevant statute in this

appeal, 18 U.S.C. § 2518(8)(a), requires the Government to seal

wiretap intercepts at the completion of each authorized inter-

cept period.

6 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

vault. The Government made duplicate recordings of

each MO disc for its own use in its pending investiga-

tion. Also, police officers created, in real time, line-sheets

describing the substance of the intercepted communica-

tions. These line-sheets were disseminated to officers

and used extensively in the Government’s pending in-

vestigation.

The Government employed these procedures for wire

communications on the suspects’ phones from approxi-

mately December 2002 until October 2003. With respect

to the phones relevant on this appeal, the Chief Judge

authorized the Government to wiretap Messrs. Martin’s

and Simmons’s phones for the following periods:

Mr. Martin’s target phone 2 from February 2003 to Sep-

tember 9, 2003, and Mr. Simmons’s target phone 4

from August 2003 to September 17, 2003. See Tr. at 55-58,

61-62, Mar. 3, 2006.

In October 2003, the Government’s investigation was

nearing an end, and the Government planned to arrest

many of the suspects. The Government intended to

play the wiretap recordings for the arrestees to

facilitate the interrogations. However, on October 10,

2003, the Government discovered that some of its

working copies of the communications on Messrs.

Martin’s and Simmons’s phones were incomplete. On

the same day, the Government informed the Chief Judge

and sought permission to unseal the MO disks that

had been stored in the DEA vault. On October 14, 2003,

the first business day after the Columbus Day holiday,

the court authorized unsealing. On that same day, the

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 7

Government unsealed the recordings in its vault and

discovered that portions of certain sealed MO discs

were blank (hereinafter referred to as “the blank-sealed

recordings”).6 Later, that same day, after receiving

the Chief Judge’s permission to do so, the Government

sealed reconstituted MO discs of the blank-sealed re-

cordings, which the Government had created by dupli-

cating its working copies; however, certain working

copies of the blank-sealed recordings had been lost and,

for those portions of intercepted communications, no

reconstituted MO discs could be sealed.7

6

Specifically, (1) the MO disc purportedly containing re-

cordings of Mr. Martin’s target phone 2 during the period

April 16 to May 15, 2003, contained no recordings; (2) the disc

purportedly containing recordings of Mr. Martin’s target

phone 2 during the period June 13 to July 11, 2003, contained

no recordings for the period June 13 to July 8; and (3) the disc

purportedly containing recordings of Mr. Simmons’s target

phone 4 during the period August 19 to September 12, 2003,

contained no recordings of calls between September 9 and

September 12, and did not include recordings of any calls

made over the “push-to-talk” feature of the phone. See Appel-

lee’s Br. 16-17; R.882 at 4-5; see also infra note 17.

7

Specifically, on October 14, 2003, the Government sealed

duplicate recordings of the calls on Mr. Martin’s target phone 2

for the period June 13 to July 8, and duplicate recordings of the

calls on Mr. Simmons’s target phone 4 for the period Septem-

ber 9 to September 12. However, the Government was unable

to reconstitute the recordings on Mr. Martin’s target phone 2

(continued...)

8 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

The takedown was delayed because of the problem

with the tapes; the Government continued its investiga-

tion without using the blank-sealed recordings. For

instance, the Government developed probable cause

applications for wiretaps on additional suspects’ phones

without reference to the contents of the blank-sealed

recordings. According to one Government agent, the

Government essentially “set [the blank-sealed re-

cordings] aside and decided not to use them in any

further enforcement action or investigation.” Tr. at 61,

Mar. 3, 2006. Eventually the takedown occurred, and

Mr. Martin was arrested.

2.

During pretrial proceedings, Mr. Martin filed a

motion to suppress, contending that the Government

had violated the immediate sealing requirement of 18

U.S.C. § 2518(8)(a). 8 R.626 at 1. In his view, the statute

7

(...continued)

for the period April 16 to May 15, or recordings of the push-to-

talk calls on Mr. Simmons’s target phone 4 for the period

August 19 to September 12. Instead, on October 17, 2003, the

Government sealed copies of its line-sheets for those periods.

See Martin/Bell Appellants’ Br. 16-17; R.882 at 4-5.

8

That statutory provision reads:

The contents of any wire, oral, or electronic communica-

tion intercepted by any means authorized by this

chapter shall, if possible, be recorded on tape or wire or

(continued...)

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 9

had been violated because the reconstituted copies had

not been sealed immediately after the conclusion of

the wiretaps. He requested an evidentiary hearing “to

determine whether evidence resulting from the ille-

gally intercepted conversations should be suppressed.”

Id. at 2.

The Government opposed the motion and Mr. Martin’s

request for a hearing. R.882. The Government conceded

that it had sealed MO discs that it believed to have con-

8

(...continued)

other comparable device. The recording of the

contents of any wire, oral, or electronic communication

under this subsection shall be done in such a way as

will protect the recording from editing or other alter-

ations. Immediately upon the expiration of the period

of the order, or extensions thereof, such recordings

shall be made available to the judge issuing such

order and sealed under his directions. Custody of the

recordings shall be wherever the judge orders. They

shall not be destroyed except upon an order of the

issuing or denying judge and in any event shall be

kept for ten years. Duplicate recordings may be

made for use or disclosure pursuant to the provisions

of subsections (1) and (2) of section 2517 of this chapter

for investigations. The presence of the seal provided

for by this subsection, or a satisfactory explanation

for the absence thereof, shall be a prerequisite for

the use or disclosure of the contents of any wire, oral, or

electronic communication or evidence derived there-

from under subsection (3) of section 2517.

18 U.S.C. § 2518(8)(a).

10 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

tained recordings, but which were actually blank or

partially blank. Id. at 1. However, the Government vol-

unteered not to use any of the blank-sealed recordings

as evidence at trial. Id. at 7. With respect to evidence

derived from those recordings, the Government con-

tended that the derivative evidence should be admissible

for two reasons. First, the Government contended

that, even though it would not use the blank-sealed

recordings at trial, they were admissible in any event

because the Government had a “satisfactory explanation”

for the non-sealing: “DEA technician error.” Id. at 9-10.9

9

The Government included an affidavit from Victor Jasevicius,

Group Supervisor for the DEA Technical Operations Group

that conducted the wiretaps, which stated,

After the DEA learned in mid-October 2003 that some

previously-sealed MO discs did not contain any or

complete call data for certain wiretap interception

periods, DEA conducted an investigation into the

particular reason why the equipment used to intercept

and record communications would produce a blank

or incomplete MO disc. DEA concluded that a number

of operator errors could have occurred, including the

failure to properly input or activate a job order, as

required by the program, or the assignment of a job

to the incorrect MO disc. Any one of those errors

could have been the cause, but no final determination

could be made because the computer system’s log

did not reflect which of the possible errors occurred.

[ ] Tests performed on the equipment determined that

it was functioning within its design specifications.

DEA determined that the same operator was involved

(continued...)

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 11

Second, the Government contended that evidence

derived from the blank-sealed recordings, before the

sealing obligation arose for those recordings, should be admis-

sible because 18 U.S.C. § 2517(1)-(2) permits the use of

recordings for investigatory purposes. Id. at 11-12 (citing

United States v. Donlan, 825 F.2d 653, 657 (2d Cir. 1987)).

Confronting the prohibition in § 2518(8)(a) against the

use or disclosure at trial of evidence derived from

unsealed recordings, the Government contended that

the prohibition should not be applied strictly. The Gov-

ernment urged the district court to adopt the United

States Court of Appeals for the Second Circuit’s broad

construction of the statute, as explained in United States

v. Donlan, 825 F.2d 653 (2d Cir. 1987).

In response, Mr. Martin contended that no excuse could

justify the major delay in sealing that had occurred in

his case. R.927. He refuted the Government’s proposed

excuse—operator error—as unsupported by the record

because the Jasevicius affidavit stated that the DEA “was

unable to conclude why the error occurred.” Id. at 3.

Furthermore, Mr. Martin contended that the Supreme

9

(...continued)

in the job orders creating those MO discs which were

found to be partially or completely blank. DEA has re-

assigned this technician to other responsibilities and

taken other steps to ensure that the problem does not

recur. Following the change in technicians, DEA has

not experienced any similar problems.

R.882, Ex. 7, ¶¶ 5-6.

12 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

Court of the United States has not endorsed “mistaken

belief” as a satisfactory explanation for a sealing error.

Id. at 3-4 (citing United States v. Ojeda Rios, 495 U.S. 257

(1990)). Nor was lack of proof of alteration sufficient

to excuse the sealing error because, according to the

Supreme Court, “ ‘[t]o hold that proof of nontampering

is a substitute for a satisfactory explanation is foreclosed

by the plain words of the sealing provision.’ ” Id. at 3

(quoting Ojeda Rios, 495 U.S. at 264). Finally, Mr. Martin

contended that no derivative evidence should be

admitted because Donlan and its broad construction of

§ 2518(8)(a) misunderstood “the context of the entire

statute.” Id. at 4.

The district court held an evidentiary hearing on the

motion to suppress. The district court stated that, because

the Government had volunteered not to use the actual

tapes, the district court understood Mr. Martin’s motion

only to apply to “any information that’s derivative of

the tapes.” Tr. at 3, Feb. 17, 2006. The district court

wanted to know “exactly what information we are

talking about.” Id. In response, the Government explained

that it had planned to use the blank-sealed recordings

in draft affidavits and complaints to secure arrest war-

rants in October 2003. Id. at 11-12. Then, when the

sealing problem was discovered in mid-October, the

Government scrapped those drafts and decided simply

to exclude the problematic calls from its investigation

from that point forward. Id. However, the Government

conceded that it had used information obtained from

the blank-sealed recordings in order to prepare officers

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 13

while the wiretaps were still active—i.e., during the

investigation. Id. at 11. The Government raised its two ar-

guments for why the derivative evidence—any derivative

evidence—was admissible: the satisfactory excuse for

non-sealing and the broad interpretation of § 2518(8)(a).

At the evidentiary hearing, Mr. Martin contended that

the Government had the burden to show what evidence

was derived from the blank-sealed recordings. Id. at 14,

22, 36, 39. He contended that the Government had failed

to meet its burden, but, in any event, he posited that the

derivative evidence was extensive because “during each

one of these tapings [the Government] ha[d] agents

monitoring these calls,” “making line sheets and making

summaries of the calls,” and “making transcripts of the

calls.” Id. at 14; see also id. at 37. Mr. Martin contended

that the line-sheets, summaries and transcripts were

used throughout the Government’s investigation, which

“mushroom[ed] out from the wiretaps.” Id. at 14-16; see

also id. at 20 (“There is no way we can now go back and

sort out and say, ‘Well, they didn’t use that[,] . . . they

erased the knowledge that they obtained.’ ”). Mr. Martin

suggested that if the Government could not establish

what derivative use was made of the blank-sealed re-

cordings, the proper sanction would be to dismiss the

indictment. Id. at 21-22. He also reiterated his opposition

to the Government’s two arguments for the admissi-

bility of the derivative evidence.

The district court suggested that this case was sui

generis because the Government made a mistake in

recording, not in sealing. Id. at 30-31. The district court

14 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

stated, “I am really uncomfortable with the idea that we

ought to somehow say that everything during the taped

period is off the—is somehow tainted in a way that re-

quires dismissal of the indictment . . . . It seems to be a

sledgehammer of relief when what we really need is

much more of a precision tool.” Id. at 33. Instead, the

district court requested more information about how the

Government had used its copies of the blank-sealed

recordings and clarification on what exactly was

derived from them. Id. at 34.

Another hearing was held, and Mr. Martin cross-exam-

ined DEA special agent Jeffrey Konvalinka, who had

managed the investigation and the wiretap operation.

Mr. Martin’s counsel asked Agent Konvalinka about

when and how the blank-sealed recordings were used.

See generally Tr. at 70, Mar. 3, 2006 (describing how sum-

maries and line-sheets were prepared as calls were re-

corded); id. at 71-72, 74-75 (describing how information

derived from the blank-sealed calls was routed to

officers to assist their surveillance efforts). Mr. Martin

argued to the district court that the Government used

the blank-sealed recordings to secure additional wiretap

authorizations and, thus, that the sealing problem was

so pervasive that the indictment must be dismissed.

See id. at 104.

The district court declined to rule, despite the Govern-

ment’s request that the court do so, on the Govern-

ment’s first argument for admissibility: that the Govern-

ment had a satisfactory explanation for the sealing error.

The district court considered that issue to be “moot,”

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 15

because the court found that the blank-sealed recordings

“were not used in connection with any ongoing ar-

rests,” “weren’t presented to the grand jury,” “weren’t

used in any affidavits for purposes of search warrants,”

“weren’t used to draft any complaints,” and “weren’t

used in connection with obtaining an indictment.” Id. at

99, 101. The district court stated, “I haven’t heard about

what specific improper use of any of this evidence has

happened.” Id. at 100. Nevertheless, the district court

seems to have concluded that at least some evidence

was derived from the blank-sealed recordings. 1 0 The

district court noted that the Government stopped using

the blank-sealed recordings as soon as the sealing error

was discovered and did not intend to use them as evi-

10

Later in its ruling, the district court stated that “it is theoreti-

cally possible that some information that shows up in the

line records or in the transcripts was in the minds of agents

when they went out and did their further investigation,” Tr.

at 99, Mar. 3, 2006, and the district court recognized that the

blank-sealed recordings had been included in the Govern-

ment’s probable cause affidavits to obtain additional wiretap

authorizations, id. at 104. With respect to this derivative evi-

dence, the district court appears to have agreed with the Gov-

ernment’s theory that § 2518 should be applied broadly,

as articulated by the United States Court of Appeals for the

Second Circuit in United States v. Donlan, 825 F.2d 653 (2d Cir.

1987). In other words, the district court believed that § 2518

permitted use at trial of evidence derived from wiretap re-

cordings, as long as the derivation occurred prior to the vio-

lation of the wiretap’s sealing obligation. Id. at 100, 104-05.

16 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

dence at trial. Thus, the district court ruled that “the

motion is effectively granted without objection.” Id. at 99.

Mr. Martin proceeded to trial, during which 160 incrimi-

nating recordings of calls from the wiretapped phones

and transcripts of the calls were admitted into evidence.

See generally Trial Tr. at 85-86, 95-96, 103, 107, Aug. 30, 2006.

Neither the blank-sealed recordings nor any transcripts

of those recordings were admitted. Mr. Martin was con-

victed and sentenced to life in prison.

Mr. Martin appealed his conviction to this court, con-

tending that the district court had erred by refusing to

dismiss the indictment.1 1 After hearing oral arguments

and considering the parties’ submissions, we maintained

jurisdiction over the case and granted a limited remand

to the district court to rule on whether the Government

had a satisfactory explanation for the sealing error, the

issue it had pretermitted earlier. See App. R.112 (No. 07-

2272).

The district court considered the issue and ruled that

“the government’s explanation for its failure to seal is

satisfactory.” R.2374 at 3. The district court noted that

11

Although the district court’s ruling was characterized in terms

of granting Mr. Martin’s motion to suppress, the district court’s

March 3, 2006 ruling properly is understood as constituting

a denial of the motion with respect to both the evidence

derived from the blank-sealed recordings and Mr. Martin’s

request to dismiss the indictment. All parties have proceeded

under that assumption.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 17

the Government never has stated definitively the cause

for the sealing error, but believed it was caused by

operator error. The district court applied the framework

articulated in United States v. Coney, 407 F.3d 871, 875

(7th Cir. 2005), and concluded that the Government’s

explanation was satisfactory. The district court noted

that the Government’s explanation was believable be-

cause all of the Government’s actions had been consistent

with its reasonable belief that it had, in fact, properly

sealed the blank-sealed recordings. The district court

did not find the length of delay in sealing to be “trouble-

some.” Id. at 4. The district court believed the nature

of the crime charged and the relative lack of notoriety

of the defendants tended to support the Government’s

explanation because nothing about this narcotics conspir-

acy case was unusual. Finally, the district court con-

sidered the importance of the problematic recordings to

be minimal because the Government did not use them

once it realized that the sealing error had occurred

and because they played no part during the trial.

3.

The parties’ contentions before this court largely

mirror the arguments made during the district court

proceedings. Mr. Martin contends that the district court

misapplied § 2518(8)(a). He contends that the district

court should have found that the Government lacked

a satisfactory explanation for the sealing error. He fur-

ther contends that so much evidence was derived from

the blank-sealed recordings that, without a satisfactory

18 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

explanation for the sealing error, much of the Govern-

ment’s evidence at trial should have been excluded.

He asks that his conviction be reversed.

The Government concedes that the reconstituted re-

cordings were not tendered for judicial sealing immedi-

ately upon the expiration of the wiretap authorizations.

The Government urges us to interpret § 2518(8)(a)

broadly so as not to require suppression of the derivative

evidence. Alternatively, the Government contends that

the operator error and the Government’s good-faith

attempt to comply with the sealing requirement con-

stitute satisfactory explanations for its failure to comply

with the sealing statute.

4.

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968 established a comprehensive statutory regime

by which the Government may intercept wire, oral or

electronic communications. See 18 U.S.C. §§ 2510-22;

Clifford S. Fishman & Anne T. McKenna, Wiretapping

and Eavesdropping: Surveillance in the Internet Age § 1:10

(3d ed. 2009) (providing background); Wayne R. LaFave

et al., Criminal Procedure §§ 4.5-4.6 (5th ed. 2009) (dis-

cussing the history of the Act and its amendments). The

Act created procedural safeguards to protect individuals’

privacy and to prevent other forms of misuse of wire-

tapping. See generally 18 U.S.C. § 2518 (establishing wire-

tap authorization procedures for the Government). One

of the safeguards of this statute is a provision where-

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 19

by wiretap intercepts may be authorized only for thirty

days at a time; any extension must comply with the

same procedures required to obtain an initial wiretap

authorization. See 18 U.S.C. § 2518(5).1 2 The Act also

strictly regulates how intercepted communication may

be used or disclosed during and subsequent to a Govern-

ment investigation. See generally 18 U.S.C. § 2517.

The Act requires that wiretap intercepts “shall, if possi-

ble, be recorded . . . in such a way as will protect the

recording from editing or other alterations.” 18 U.S.C.

§ 2518(8)(a). “Immediately upon the expiration of the

period of the [wiretap authorization] order, or extension

thereof, such recordings shall be made available to the

judge issuing such order and sealed under his direc-

tions.” Id. The purpose of this sealing requirement “is to

ensure the reliability and integrity of evidence obtained

by means of electronic surveillance.” United States v. Ojeda

Rios, 495 U.S. 257, 263 (1990). “[T]he seal is a means of

ensuring that subsequent to its placement on a tape, the

Government has no opportunity to tamper with, alter, or

edit the conversations that have been recorded.” Id. We

apply the immediacy requirement strictly. See United

12

“ ‘[A]n order authorizing surveillance of the same subject, at

the same location, regarding the same matter as an earlier

authorized surveillance, constitutes an “extension” of the

earlier authorization . . . .’ ” United States v. Jackson, 207 F.3d

910, 916 (7th Cir. 2000) (quoting United States v. Carson, 969

F.2d 1480, 1488 (3d Cir. 1992)), judgment vacated on other

grounds, 531 U.S. 953 (2000).

20 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

States v. Coney, 407 F.3d 871, 873 (7th Cir. 2005) (“ ‘The

term “[i]mmediately” means that the tapes should be

sealed either as soon as practical after the surveillance

ends or as soon as practical after the final extension

order expires.’ ” (quoting United States v. Williams, 124

F.3d 411, 429 (3d Cir. 1997))); see also Fishman & McKenna,

supra, § 19:10 (discussing other circuits’ application of the

immediacy requirement). The Supreme Court also has

stated that Ҥ 2518(8)(a) applies to a delay in sealing, as

well as to a complete failure to seal, tapes.” Ojeda Rios,

495 U.S. at 264. Similarly, we believe that what occurred

in this case, sealing blank recordings, does not comply

with the sealing requirement. Cf. id. at 263 (“The presence

or absence of a seal does not in itself establish the

integrity of electronic surveillance tapes. Rather, the seal

is a means of ensuring that subsequent to its placement

on a tape, the Government has no opportunity to tamper

with, alter, or edit the conversations that have been

recorded.”). Nor is the sealing of line-sheets or call sum-

maries a proper method of compliance.

The sealing provision includes its own exclusionary

remedy: “The presence of the seal provided for by this

subsection, or a satisfactory explanation for the absence

thereof, shall be a prerequisite for the use or disclosure

of the contents of any wire, oral, or electronic communi-

cation or evidence derived therefrom under subsec-

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 21

tion (3) of section 2517.” 1 3 18 U.S.C. § 2518(8)(a).1 4

The Supreme Court has noted that the satisfactory

explanation prong of § 2518(8)(a) “require[s] that the

13

Subsection (3) of § 2517 provides:

Any person who has received, by any means authorized

by this chapter, any information concerning a wire,

oral, or electronic communication, or evidence

derived therefrom intercepted in accordance with the

provisions of this chapter may disclose the contents

of that communication or such derivative evidence

while giving testimony under oath or affirmation in

any proceeding held under the authority of the

United States or of any State or political subdivision

thereof.

14

The United States Court of Appeals for the Second Circuit

has articulated an interpretation of the § 2518(8)(a) exclu-

sionary remedy that would permit certain uses of wiretap

recordings, despite the lack of a satisfactory explanation for a

violation of the statute’s immediate sealing requirement. See

United States v. Donlan, 825 F.2d 653 (2d Cir. 1987). As best we

can tell, this interpretation has not been adopted by any other

court of appeals. See Clifford S. Fishman & Anne T. McKenna,

Wiretapping and Eavesdropping: Surveillance in the Internet Age

§ 19:8 (3d ed. 2009) (suggesting that courts have divided over

the correctness of the Donlan interpretation). Although the

parties differ over the correctness of Donlan, and therefore

the propriety of the district court’s application of Donlan’s

rationale, see supra note 10, resolution of this issue is unneces-

sary. The Government has provided a satisfactory explanation

for its sealing error, and our discussion will be limited to that

aspect of the statutory provision.

22 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

Government explain not only why a delay occurred but

also why it is excusable.” Ojeda Rios, 495 U.S. at 265. In

Ojeda Rios, the Supreme Court concluded that the Gov-

ernment’s “good-faith, objectively reasonable misunder-

standing of the statutory term ‘extension’ ” was a satisfac-

tory explanation for the Government’s failure to seal

immediately wiretap recordings. Id. at 264-66.1 5 The

Supreme Court insisted on a showing of “good cause

for the sealing delays” and rejected the Government’s

attempt to show merely that no tampering with the

15

However, the Court remanded the case so that the district

court could determine whether the Government’s proffered

explanation was supported by the factual record developed

before the district court. Courts of Appeals similarly have

reviewed this issue on the basis of an evidentiary record.

See, e.g., United States v. Wilkinson, 53 F.3d 757, 759-60 (6th Cir.

1995) (considering the Government’s explanation for delayed

sealing as articulated during a “lengthy evidentiary hearing”);

see also United States v. Ojeda Rios, 495 U.S. 257, 267-68 (1990)

(O’Connor, J., concurring) (“[A] ‘satisfactory explanation’ . . .

cannot merely be a reasonable excuse for the delay; it must

also reflect the actual reason for the delay” and “should be

based on the findings made and evidence presented in the

district court, rather than on a post hoc explanation given for

the first time on appeal.”). But see Jackson, 207 F.3d at 918

(examining a Government’s proffered explanation that was

unsupported by evidence submitted to the district court);

United States v. Hoover, 246 F.3d 1054, 1063-65 (7th Cir. 2001)

(Rovner, J., concurring) (criticizing Jackson’s reliance on argu-

ments not included in the evidentiary record). In this case,

we rely solely on arguments supported by the factual record

developed in the district court.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 23

recordings had occurred. Id. at 264-65 (“To hold that

proof of nontampering is a substitute for a satisfactory

explanation is foreclosed by the plain words of the

sealing provision.”). We have noted that “what should

be deemed ‘satisfactory’ in the context of a statute

aimed at preventing government tampering with elec-

tronic evidence” must depend largely on “the statutory

objective.” Coney, 407 F.3d at 875. A satisfactory explana-

tion must dispel any reasonable suspicion of tampering,

and also must be both accurate and believable. Id.

Whether the explanation is satisfactory also may depend

on the delay in sealing, unique pressure on the Govern-

ment to obtain a conviction due to particularly notorious

charges or defendants, the importance of the recordings

to the Government’s case and whether the Government

has established a procedure for complying with its

sealing obligations. Id.; cf. United States v. Mora, 821 F.2d

860, 867-69 (1st Cir. 1987) (listing additional factors that

the court believed contributed to satisfactoriness but

stressing “that there is no stock formula by which the

adequacy of an explanation can invariably be gauged”).

In Coney, we applied these principles and held that

“mixed-signals” between Assistant United States Attor-

neys qualified as a satisfactory explanation for a ten-day

delay in sealing. Coney, 407 F.3d at 875. In other cases,

we have concluded that a prosecutor’s mistaken belief,

caused by recording technicians’ delay, about the time

needed to secure a replacement recording device con-

stituted a satisfactory explanation, see United States v.

Jackson, 207 F.3d 910, 918 (7th Cir.), judgment vacated on

other grounds, 531 U.S. 953 (2000), as did a bureaucratically

24 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

caused delay, see United States v. Plescia, 48 F.3d 1452,

1463 (7th Cir. 1995).

We review for clear error a district court’s conclusion

that the Government’s explanation for failing to seal

immediately wiretap recordings is satisfactory. See Coney,

407 F.3d at 874.16

5.

We begin by noting that evidence was derived from the

blank-sealed recordings. Although the district court

did not specify the extent of the derivative evidence,

it stated that “it is theoretically possible that some infor-

mation that shows up in the line records or in the tran-

scripts was in the minds of agents when they went out

and did their further investigation,” Tr. at 99, Mar. 3,

2006, and the district court recognized that the blank-

sealed recordings had been included in the Govern-

ment’s probable cause affidavits to obtain additional

wiretap authorizations, id. at 104; see also supra note 10.

We also believe the factual record would support a

finding that at least some derivative evidence existed.

16

In United States v. Coney, 407 F.3d 871 (7th Cir. 2005), we

employed the “clearly erroneous” standard while conceding

that other circuits review this determination de novo. See, e.g.,

United States v. Reed, 575 F.3d 900, 913 (9th Cir. 2009);

United States v. Cline, 349 F.3d 1276, 1284 (10th Cir. 2003);

United States v. Sawyers, 963 F.2d 157, 159 (8th Cir. 1992);

United States v. Maldonado-Rivera, 922 F.2d 934, 949-50 (2d Cir.

1990). But see Wilkinson, 53 F.3d at 759-60. In this case, we

would reach the same result under either standard.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 25

Our review of the record reveals that portions of the

Government’s investigation relied on, at least in part, the

contents of the blank-sealed recordings. For example,

excerpts of probable cause affidavits show that the Gov-

ernment frequently cited the communication heard on

the blank-sealed recordings to secure subsequent wire-

tap authorizations. See, e.g., R.882-7 at 425; R.882-8 at 253,

255-56, 293; R.882-9 at 341-42. Also, Agent Konvalinka

testified that the contents of the blank-sealed recordings

were relayed to other officers to assist with the

pending investigation. Because the Government volun-

tarily suppressed the blank-sealed recordings them-

selves, the derivative evidence properly was the subject

of Mr. Martin’s motion to suppress.

As we have noted earlier, the district court, applying

the factors set forth in Coney, concluded that the deriva-

tive evidence need not be excluded because the Gov-

ernment provided a satisfactory explanation for its im-

proper sealing. We agree. The record establishes that

operator error most likely caused the blank-sealed re-

cordings to be defective. The district court placed this

error in the proper context. The error had more to do

with the mechanics of the recording process than

with the Government’s established sealing procedures.

Throughout the course of its investigation, the Govern-

ment acted consistent with its sealing obligations and

attempted in good faith to rectify its sealing error once

it was discovered. The statutory objectives were essen-

tially satisfied: The Government obtained valid judicial

authorization for its wiretap intercepts, recorded the

communications onto non-editable MO discs and sealed

original copies of the MO discs with judicial authoriza-

26 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

tion.17 The fact that a few of those tapes were defective

was unknown until the Government’s investigation

nearly was completed, and the sealing error certainly did

not interfere with the statutory objectives of ensuring

judicial oversight and non-tampering with wiretap re-

cordings. Cf. Ojeda Rios, 495 U.S. at 266-67 (concluding

that the Government’s understanding of the law of exten-

sions was erroneous but, nonetheless, did not interfere

with the statutory objectives, and, thus, qualified as

an objectively reasonable excuse for the Government’s

sealing delay).

Mr. Martin has not alleged that the Government ob-

tained a tactical advantage by sealing the blank MO discs,

that the Government procrastinated or otherwise acted

in bad faith. Indeed, the record is completely devoid of

any such evidence. Cf. United States v. Quintero, 38 F.3d

1317, 1328-30 (3d Cir. 1994) (rejecting the prosecutor’s

heavy workload as a satisfactory explanation for a

sealing delay because to do so “would be rendering

extraordinary that which is ordinary”); United States v.

Carson, 969 F.2d 1480, 1498 (3d Cir. 1992) (rejecting the

need to enhance the audibility of tapes as a satisfactory

explanation for a sealing delay because that need was

17

We have considered previously the reliability of MO discs

and their non-editable characteristic. See United States v.

McLee, 436 F.3d 751, 763-65 (7th Cir. 2006). The fact that the

Government used MO discs in this case contributes to our

conclusion that the sealing error is no cause for concern

that tampering occurred.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 27

“readily foreseeable and could just as readily become

routine”). We believe the context in which the sealing

error occurred in this case supports the Government’s

explanation.

Although the delay in sealing was significant—ap-

proximately thirty-eight days for the reconstituted re-

cordings, and never for the recordings that were lost,

see supra note 7—the Government exhibited substan-

tial compliance with the immediacy requirement by at-

tempting to address the sealing error the same day the

Government discovered that it had occurred. We agree

with the district court that the delay in sealing is

excusable under these circumstances. The charges in

this case were unexceptional, and the record does not

suggest that the defendants were particularly notorious.

The Government had no unique incentive in this case

to ignore intentionally its sealing obligations. See Coney,

407 F.3d at 875.

The Government had well-established procedures in

place to ensure compliance with its sealing obligations,

a consideration that contributes to the believability of

the Government’s explanation. Cf. id. (noting that the

Assistant United States Attorneys had established a

procedure for complying with their statutory sealing

duties). For example, although the Government was

obligated to seal the wiretap recordings only upon the

expiration of the final extension period for Messrs. Martin’s

and Simmons’s phones, see 18 U.S.C. § 2518(8)(a), the

Government sealed the MO discs upon the completion

of each thirty-day authorized period, see R.882 at 2. In

28 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

this regard, the Government followed established Depart-

ment of Justice protocols.1 8

Finally, we agree with the district court’s conclusion

that the blank-sealed recordings were of relatively minor

importance to the Government’s case. The Government’s

voluntary suppression of the recordings themselves

indicates how small a role they played in the Govern-

ment’s case against Mr. Martin. Although our review of

the probable cause affidavit excerpts reveals that the

contents of the blank-sealed recordings were used to

obtain certain wiretap extensions, they were hardly

the linchpin of these affidavits. Furthermore, the blank-

sealed recordings were a small subset of the wire-

tap recordings the Government created in this case,

most of which were sealed properly. The blank-sealed re-

cordings’ minimal importance contributes to our conclu-

sion that the Government’s explanation is satisfactory.

The Government provided a satisfactory explanation

in this case and therefore no evidence was excludable

under § 2518(8)(a). We therefore affirm the ruling of the

district court that the Government’s explanation was

satisfactory.

18

See Department of Justice’s Electronic Surveillance Manual

28-30 (June 2005), available at http://www.justice.gov/criminal/

foia/docs/elec-sur-manual.pdf (encouraging Assistant United

States Attorneys to seal wiretap recordings at the completion

of each authorized thirty-day period, irrespective of whether

an extension is obtained).

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 29

B. Sixth Amendment Challenges

1.

Messrs. Martin, Bell and Terrell contend that the

district court violated their Sixth Amendment rights

by limiting their ability to cross-examine James Rudy

Taylor (“Rudy”). Rudy was a member of the Mafia

Insanes who worked for Mr. Simmons and managed

a drug spot. Rudy was a named defendant in the indict-

ment.19 He eventually pleaded guilty and entered into

a cooperation plea agreement with the Government

whereby he agreed to testify against Messrs. Martin, Bell

and Terrell, among others, in exchange for a Government

recommendation that he receive a reduced sentence.

See R.737-38, 764.

During the Martin/Bell trial,2 0 defense counsel informed

the district court that the defense intended to cross-exam-

ine Rudy about his involvement in a pending state

murder investigation being conducted by the Police

Department in Maywood, Illinois. Defense counsel knew

that, when Rudy was arrested by federal agents for his

role in the Mafia Insanes conspiracy, the Government

had made Rudy available to the Maywood Police for

19

Rudy was charged in Count One (the conspiracy charge), and

also with two firearm counts, in violation of 18 U.S.C.

§§ 922(g)(1) and 922(k), and one count of using a telephone

to facilitate a narcotics conspiracy, in violation of 21 U.S.C.

§ 843(b).

20

As noted above, Messrs. Martin and Bell were tried

separately from Mr. Terrell.

30 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

questioning. Defense counsel believed that Rudy had

given a statement to the Maywood police concerning

his involvement in the murder of an individual named

Curtis Rios.21 Defense counsel asked the district court

to permit cross-examination of Rudy about whether

he expected to receive any benefit in the state murder

investigation in return for giving testimony in the Mar-

tin/Bell trial.

21

A defense counsel explained his understanding of the

Maywood investigation and the statement as follows,

[Rudy] gave a confession—that’s my word—a state-

ment on May 20th, 2004, when he was picked up,

basically, on another case, which was a murder, and

this case.

. . . [T]his confession that he gave, . . . is five pages in

length, handwritten, signed by him . . . .

My reading of it is that it was over a drug debt—or,

I am sorry—over some drugs; that it has to do with a

spot regarding the Mafias; that he shot this individual

in the foot, and then unloaded the gun on him; that

he went ahead, this individual, whose name is Curtis

Rios, . . . a/k/a “Cheese,” who died the next day.

[Rudy] . . . went ahead and got rid of his own gun

almost immediately thereafter and kept or held on to

Cheese’s gun for something like a month. I think that

he basically says he had nine rounds and he emptied it.

We don’t have an autopsy report. We don’t have

those kinds of things, Judge.

Trial Tr. at 1604-05, Sept. 18, 2006.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 31

The Government contended that the defense should not

be permitted to question Rudy about the pending state

murder investigation. The Government said that it

had arranged no benefit for Rudy with the Maywood

investigators in exchange for his cooperation in the

federal case. According to the Government, the federal

investigators had “talked with Maywood about working

some type of concurrent deal. They were unwilling to do

it, so we didn’t do anything with it. That’s it.” Trial Tr. at

1606, Sept. 18, 2006. The Government argued that under

Federal Rule of Evidence 609, the Maywood murder

investigation was not a proper subject for cross-examina-

tion because Rudy had not been convicted;2 2 nor was it

admissible under Rule 608(b) because the alleged offense

“has nothing to do with truth-telling.” Id. at 1607. The

Government also informed the defense and the district

court that, if asked about the Maywood murder inves-

tigation, Rudy intended to invoke his Fifth Amend-

ment right not to incriminate himself. Id. at 1605.

The district court stated, “Whether it’s a murder or a

traffic offense, if it’s an arrest, it’s not admissible unless

there is a benefit given. And I understand, from what

everybody tells me, there has not been a benefit given.”

Id. at 1606. The district court also noted that the state-

ment given to the Maywood investigators could be used

by the defense to impeach Rudy if he testified about the

22

The defense and the Government agreed that Rudy had not

been charged with the murder of Curtis Rios. See Trial Tr.

at 1606, Sept. 18, 2006.

32 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

Maywood murder on direct. Id. at 1607. However, the

district court did not know whether that contingency

would occur. It therefore permitted a voir dire of Rudy

to determine whether he intended to testify about the

Maywood murder and whether he expected to receive

any benefit in that case in exchange for his cooperation

in the federal action. Id. at 1607-08.

A voir dire was conducted. Defense counsel asked

Rudy if he had given a statement concerning the murder

of Curtis Rios. Rudy declined to answer, invoking the

Fifth Amendment. Id. at 1610. Defense counsel then

asked Rudy whether he expected to receive any benefit

from the Government in exchange for his cooperation

in the federal action. Rudy said that he expected to

receive no benefits. Id. at 1610-15.

At a sidebar, the district court told defense counsel,

If you can establish that [Rudy] has an expecta-

tion that he is getting a pass on something out in

Maywood as a result of his testimony here, I will

then allow you to ask about what it is out in

Maywood that he thinks he is getting a pass on.

But until that predicate has been laid, there is

no basis to inquire into this.

And I will just tell you, the 403 balancing goes

in favor of the government as well. I’m not—

I don’t think it’s appropriate to ask about this, as

I understand it, unrelated murder.

Id. at 1622. Defense counsel contended that the May-

wood murder was related to the drug activity charged

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 33

in the federal indictment. Id. Defense counsel wanted

to clarify whether Rudy intended to invoke the Fifth

Amendment if asked about the murder. Id. at 1623. The

district court stated, “I don’t think there is any basis,

from what I have heard right now, that we ought to

even open the door to his taking the Fifth on this.

Nor do I think there is any particular benefit to the defen-

dants in letting the jury know that there was a gang-

related murder.” Id. at 1627. The district court proposed

that defense counsel focus its voir dire questions on

whether Rudy expected any deal from the Maywood

investigators. Id.

Instead, defense counsel asked Rudy about his plea

agreement with the Government and what he expected

to gain from testifying in the Martin/Bell trial. Id. at

1628. Obviously confused by defense counsel’s ques-

tions, Rudy said he expected to receive no benefits at all.

Id. The district court interjected and asked Rudy if he

understood that, in the written plea agreement with the

Government, the Government agreed to recommend a

reduced sentence for Rudy in the federal action in

return for his cooperation. Id. Rudy confirmed that that

was his understanding, and he indicated that he under-

stood that the Government’s favorable recommendation

at his sentencing hearing would depend on whether

he told the truth during his trial testimony. Id. at 1628-29.

The district court asked Rudy,

[H]ave you received any other agreement from the

government? Have they offered you anything

else? . . . Has the government offered you any

34 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

benefits in any other case? . . . Has the government

offered to do anything for you in connection

with any other charges? . . . Is it your expectation

or hope that the government is going to do some-

thing in some other case for you?

Id. at 1629-30. Rudy answered no to each of those ques-

tions. Id.

Defense counsel then resumed the voir dire questioning

and asked Rudy if it was his “understanding that a mem-

ber of the U.S. Attorney’s Office called the State’s Attor-

ney’s office out in Maywood?” Id. at 1630. Rudy said no.

Id. Defense counsel asked, “Did your lawyer talk to

you at all about any efforts on the part of the U.S. Attor-

ney to work out your case, your prospective case, in

Maywood?” Id. The district court interjected and said,

“I want to tell the witness that he has permission not

to answer questions about communication with his

lawyer . . . . It doesn’t relate to the Fifth Amendment.

It’s an independent privilege.” Id. at 1630-31. Defense

counsel then asked Rudy, “Sir, do you expect to be

charged out in Maywood?” Id. at 1631. The Government

objected and complained that the question “go[es] back

to the statement again.” Id. The district court sustained

the objection and said, “I think we should bring the

jurors in. We are not going to pursue this line of ques-

tioning in the jurors’ presence unless the witness’ testi-

mony changes.” Id.

Defense counsel sought to clarify the ruling and

asked, “Judge, are we precluded from any other ques-

tions about benefits when he is on the stand?” Id. at 1632.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 35

The district court stated, “No. You are welcome to

ask questions about benefits, without reference to this—.”

Id. Unsatisfied, defense counsel sought permission to

continue the voir dire and ask additional questions

about the Maywood murder, which the court allowed.

The following colloquy occurred:

[DEFENSE COUNSEL]: Are there any outstanding

offenses that you are concerned about the Judge

knowing about at this point?

[THE GOVERNMENT]: Objection, Judge. It’s forc-

ing this witness to take Five on this again.

[DEFENSE COUNSEL]: I am not asking him to

take Five. I am only asking him whether or not

he is concerned about it.

[THE GOVERNMENT]: If he says yes, the next

question is what offenses? Judge. And then we

are back to the statement.

[DEFENSE COUNSEL]: That wasn’t going to be

my next question, Counsel.

[THE GOVERNMENT]: If he says he is con-

cerned, it also is potentially admissible.

THE COURT: Look, there are ways that you can

ask questions that would elicit this. I have made

a 403 decision here that we ought not proceed

down this line. So questions that are designed

to elicit evidence concerning the episode in May-

wood, I am going to sustain those objections,

unless there is an indication that the wit-

36 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

ness has a genuine expectation of a benefit

in connection with that. And there has been

no such showing.

Id. at 1634.

Still unsatisfied, defense counsel sought permission

to continue the voir dire and ask additional ques-

tions about benefits Rudy expected to receive from his

cooperation. The district court allowed further ques-

tioning. Defense counsel asked Rudy about his plea

agreement, and Rudy confirmed that it was his under-

standing that, in return for his guilty plea and truthful

testimony in the federal action, the Government would

recommend that he receive a lower sentence. Id. at 1636.

The Government asked to clarify the record and asked

Rudy, “Sir, if you have cases out in Maywood, or poten-

tial cases, do you understand that by cooperating with

the government that those will go away?” Id. Rudy an-

swered, “No.” Id. at 1637. Defense counsel then

asked, “Do you expect the government to do anything

whatsoever to try to help you in that potential case in

Maywood?” Id. Rudy responded, “I refuse to answer,

your Honor. . . . I plead the Fifth.” Id. Defense counsel

said, “That’s the crux of this, Judge. . . . That’s it.” Id. The

district court stated, “It isn’t the crux. The witness has

testified about this matter. I don’t think we should

pursue it any longer.” Id. The voir dire ended.

The trial resumed, and Rudy testified on behalf of the

Government, describing his role in Mr. Simmons’s drug

operation and, more generally, the involvement of the

Mafia Insanes gang. See id. at 1645, 1669-71, 1679-81.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 37

Defense counsel did not cross-examine Rudy about the

Maywood murder investigation. However, defense

counsel attempted to impeach Rudy in other ways. For

example, defense counsel asked Rudy about his prior

arrests and about aliases that he had given to the

police during those arrests. See id. at 1706-08. Defense

counsel also asked Rudy about his prior drug abuse. See

id. at 1715-17. Defense counsel asked Rudy why he left

certain information out of his proffer statement given

to the DEA. See id. at 1721-22. Defense counsel also

asked Rudy about minor inconsistencies in his testi-

mony. See id. at 1763. Finally, defense counsel asked

Rudy about the plea agreement with the Government;

Rudy confirmed that, if he testified truthfully, the Gov-

ernment would dismiss certain charges pending against

him and recommend that he be sentenced at a level one-

third below the low end of his applicable Guidelines

range. See id. at 1723-26, 1732-37.

The trial continued, and other witnesses offered testi-

mony that further incriminated the defendants.

Messrs. Martin and Bell ultimately were convicted

and sentenced.

2.

Approximately a year after the Martin/Bell trial had

concluded, Mr. Terrell was tried separately, and the

Government again called Rudy as a cooperating witness.

The Government reminded the district court about the

substance of Rudy’s testimony in the Martin/Bell trial.

38 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

The Government asked for the same evidentiary ruling

barring cross-examination concerning the Maywood

murder investigation. The district court asked defense

counsel if she objected, to which she responded, “[T]he

only thing I would ask is for another voir dire so we

can talk to him and make sure he doesn’t think that

this murder that he confessed to is in any way associ-

ated with the deal he is getting from the government.”

Trial Tr. at 341, Jul. 12, 2007. The district court asked

the Government to begin, and the following voir dire

occurred:

[BY THE GOVERNMENT:]

Q. [Rudy], you were questioned by people from

the Maywood Police Department about a

shooting, weren’t you?

A. Yes, sir.

Q. You have got a cooperation deal in this case,

don’t you?

A. Yes, sir.

Q. Do you understand that cooperation deal to

have taken care of any possible situation you have

in Maywood?

A. No, sir.

Q. Do you know if the United States Attorney’s

Office or DEA or anybody reached out to

Maywood to, I guess for lack of a better term,

make that case go away?

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 39

A. No, sir.

Q. What is your cooperation agreement—what

charges do you understand your cooperation

agreement to take care of or resolve?

A. Contending this case here that I am on.

Q. Just this case?

A. Yes.

Q. Does it take care of any other possible charges?

A. No, not to my knowledge.

[THE GOVERNMENT:] I don’t have any further

questions, your Honor.

[THE COURT:] Any cross-examination . . . ?

[DEFENSE COUNSEL:] Thank you.

[BY DEFENSE COUNSEL:]

Q. Have you been charged with stuff in

Maywood?

A. I plead the Fifth on that.

Q. Do you know if any charges have been filed

against you?

A. Yes, sir—yes, ma’am.

Q. They have been filed against you?

A. The charges that I am up against now.

Q. In Maywood, out of that?

A. I plead the Fifth on that.

40 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

[DEFENSE COUNSEL:] Your Honor, I think he

waived it by answering their questions. And now

to invoke it for just this limited part—

[THE GOVERNMENT:] Judge, if I can just step in

for a moment.

[Rudy’s counsel] was here this morning. I abso-

lutely do not want to get into what [she and

Rudy] talked about . . . but it would be—I guess

I understand that this is not an area where he

is going to be willing to answer any questions on.

Maybe it makes sense to get [Rudy’s counsel]

here if this is going to be something that we need

to go into, but my sense is we have covered this

ground already. Nothing has changed since then.

[THE COURT:] Here is what I want to do. I am

going to bring the jury back right now, and what

we can do with respect to this issue is get [Rudy’s

counsel] over here, see whether that changes

anything with respect to whether or not he is

willing to answer the question about whether

charges have been filed. And if we need to reopen

his testimony for some reason, we can do that.

Id. at 342-44. Mr. Terrell’s defense counsel did not object

to that plan.

The trial resumed and Rudy testified about Mr. Terrell’s

role in the Mafia Insanes conspiracy. Defense counsel did

not cross-examine Rudy about the Maywood murder

investigation. However, defense counsel impeached

Rudy by asking him about prior inconsistent statements

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 41

that he had given to police and agents, see id. at 381-83, 386-

87, his prior charges, see id. at 387-90, and about his

plea agreement with the Government, see id. at 400-02.

Rudy’s testimony concluded, and he was excused.

Later in the trial, the district court returned to the

issue of Rudy’s testimony and summoned Rudy for an

additional voir dire. Rudy’s counsel appeared and the

following exchange occurred:

[BY THE GOVERNMENT:]

Q. I just have a few questions for the purpose of

follow-up.

[Rudy], we talked about your plea agreement

previously. Do you understand that coopera-

tion/plea agreement that you have to extinguish

or take care of any potential cases that might

arise in Maywood, Illinois?

A. No, sir.

Q. And so do you understand that you received

a benefit regarding anything that might have

happened in Maywood, Illinois from the United

States Attorney’s Officer in connection with

your plea agreement?

A. No, sir.

[THE GOVERNMENT:] No further questions,

Your Honor.

The Court: Cross-examination?

[DEFENSE COUNSEL:] Thank you.

....

42 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

[BY DEFENSE COUNSEL:]

Q. Now, the case that we’re talking about is a

case in Maywood involving a murder, correct?

A. Yes, yes, ma’am.

Q. And you were questioned about that murder

the day you were arrested on this case, right?

[RUDY’S COUNSEL:] Your Honor—

BY THE WITNESS:

A. Plead the Fifth.

[RUDY’S COUNSEL:] —I would object to this.

I think that [Rudy] has a right to exercise his

Fifth Amendment if we’re going to talk about the

statement.

THE COURT: Well, the question was: Were you

questioned about that Murder?

[DEFENSE COUNSEL:] Yeah, I’m not going to

get into—

THE COURT: Overruled. You may answer.

Were you questioned about that murder when

you were arrested back in ‘04 in this case?

BY THE WITNESS:

A. I was asked about it.

[BY DEFENSE COUNSEL:]

Q. Okay. And have you been—are there any

charges resulting from that murder against you

currently?

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 43

A. No, ma’am.

Q. Okay. So you—do you have any cases at all

pending anywhere else but the case that’s here

right now?

A. Traffic, traffic, ma’am.

Q. Okay. Now, are you aware if the federal gov-

ernment has spoken to any of the assistant state’s

attorneys out in Maywood regarding that case?

A. No, ma’am.

Q. Do you believe that you are going to be in-

dicted in that Maywood case?

A. No, ma’am.

Q. Do you believe that your cooperation in this

case, meaning your testimony against other

people in this case and in other federal cases, is

going to help you so you won’t be charged in

that Maywood case?

A. No, ma’am.

[DEFENSE COUNSEL:] Nothing further.

THE COURT: All right. Do we need to take any

further steps with this witness?

[DEFENSE COUNSEL:] I do not.

Trial Tr. at 566-69, Jul. 16, 2007. The voir dire con-

cluded, and Rudy was excused. The trial resumed, and

Mr. Terrell’s defense counsel did not raise the Rudy cross-

examination issue again. Mr. Terrell ultimately was

convicted.

44 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

Mr. Terrell filed a post-trial motion for acquittal, con-

tending that the district court’s earlier ruling circum-

scribed improperly his cross-examination of Rudy. See

R.1875. The motion stated that Mr. Terrell was pre-

vented from determining whether Rudy “may have had

[a subjective belief] regarding any promise the state

made to him regarding possible murder charges not

being brought in exchange for his testimony in this con-

spiracy trial.” Id. at 1. The motion continued, “In light

of the fact [that Rudy] was arrested on this conspiracy

charge and immediately brought to the Maywood Police

Department in reference to the murder charge, the sub-

stance of the conversation [he] had with the Maywood

police would be relevant as to the reasonableness of his

subjective belief.” Id. at 2. The motion did not allege

specifically that the district court’s ruling violated

Mr. Terrell’s constitutional rights.

Soon thereafter, Mr. Terrell substituted counsel, and

his new counsel filed an amended post-trial motion,

renewing the contention that the district court’s ruling

limiting the cross-examination of Rudy about the May-

wood murder investigation was erroneous. Specifi-

cally, Mr. Terrell contended, “By denying Mr. Terrell

the right to investigate this weakness in [Rudy’s] testi-

mony, the [district court] violated Mr. Terrell’s right

under the Confrontation Clause. U.S. Const. Amnd. V

[sic].” R.1890 at 3.

The Government opposed the motion, contending that

Mr. Terrell had waived his opportunity to challenge the

district court’s ruling. See R.2026 at 9. The Government

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 45

noted that, when it had sought the same evidentiary

ruling that the district court had made in the previous

Martin/Bell trial, Mr. Terrell’s trial counsel never ob-

jected and only requested that a voir dire occur. See id.

at 10. The Government stated that “defense counsel even

confirmed after the voir dire that the voir dire questioning

was all that counsel sought.” Id. at 11 (citing Trial Tr. at

569, Jul. 16, 2007). The Government further argued that,

in any event, Mr. Terrell’s complaint was meritless

because Rudy had denied any expectation of benefit

related to the Maywood murder investigation and that

Rudy’s alleged motive to lie was purely speculative. Id.

at 11-12. The Government also contended that “cross-

examination on this topic would [have] . . . cause[d] much

confusion and waste of time,” “precisely the sort of

confusion and waste that Federal Rule of Evidence 403

would prohibit.” Id. The Government noted that “[o]f

course, [the district court] did not even have to make

a specific Rule 403 determination during Terrell’s trial

because he waived the issue after the satisfactory voir

dire.” Id. at 12.

The district court denied the motion; it ruled that

Mr. Terrell’s right to confrontation had not been violated

by the ruling limiting cross-examination of Rudy. See

R.2130. The district court explained, “The right of con-

frontation does not require that a defendant be per-

mitted to explore any and all avenues of bias. Nor

was [Rudy’s] testimony the only (or even the most

important) evidence against the Defendant. The court

concludes that a new trial is not warranted due to this

evidentiary ruling.” Id. at 2 (internal citations omitted).

46 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

3.

Messrs. Martin, Bell and Terrell appeal the district

court’s rulings limiting their ability to cross-examine

Rudy about the Maywood murder investigation. They

contend that the Sixth Amendment guaranteed them

the right to cross-examine Rudy in front of the jury

about whether he was biased in favor of the prosecutors

because of his desire to secure their assistance with

the pending Maywood murder investigation. See Mar-

tin/Bell Appellant’s Br. 9-10; Terrell Appellant’s Br. 13.

The defendants suggest that they should have been per-

mitted to establish the following facts before the jury:

“1) that [Rudy] was suspected of murder in state

court; 2) that [Rudy] had not yet been prosecuted for

that murder; 3) that [Rudy] was first informed of that

murder investigation immediately following his arrest

by the federal government in this case; 4) that the fed-

eral authorities delivered [Rudy] to the state officials

for interrogation regarding that murder; 5) that [Rudy]

had made a statement to state authorities admitting

his involvement in the murder; and 6) that [Rudy] was

never prosecuted for the murder to which he confessed

after he began cooperating with federal authorities.”

Martin/Bell Appellant’s Br. 10. They explain that, “[b]ased

on these facts, a reasonable juror could infer that [Rudy]

was manufacturing incriminating testimony against

the defendant-appellants in order to minimize his culpa-

bility in the investigation and avoid prosecution for

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 47

the murder.” Id.; see also id. at 13-14, 17-19.2 3

Messrs. Martin, Bell and Terrell emphasize that Rudy’s

alleged bias arising from his expectation of a benefit

in the Maywood murder investigation was a “core”

concern of the Sixth Amendment because it represented

“an entire source of bias” that the jury never heard about.

Id. at 11-14. They point to Delaware v. Van Arsdall, 475 U.S.

673 (1986), and Davis v. Alaska, 415 U.S. 308 (1974), deci-

sions establishing that cross-examination regarding a

witness’s bias created by the threat of prosecution for

matters unrelated to the crime about which the witness

testifies is a core concern of the Sixth Amendment. See

Martin/Bell Appellant’s Br. 14. They contend that all

of Rudy’s testimony should have been stricken or

a mistrial declared because Rudy relied on the Fifth

Amendment when he was asked about the Maywood

murder investigation. Id. at 21-23. They believe that

Rudy’s bias was a core concern of the Sixth Amendment,

and, therefore, his Fifth Amendment right should not

have trumped the defendants’ Sixth Amendment rights.

The Government contends that the Sixth Amendment

does not guarantee an unfettered right to cross-examine

23

The defendants do not contend that the Government

violated its disclosure obligations by withholding any infor-

mation about the Maywood murder investigation. They base

their theory that Rudy was inclined to fabricate testimony

in favor of the Government entirely on the facts brought

out during the pretrial and trial proceedings and inferences

drawn from those facts.

48 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

and that the right may be limited by courts to avoid

causing prejudice, confusion or delay. Appellee’s Br. 31.

In the Government’s view, the Maywood murder investi-

gation was strictly a collateral matter because there was

no evidence showing that Rudy expected or hoped

for any benefit in the Maywood murder investigation.

Id. at 31-32. The Government notes that the defendants

had ample opportunity to and did establish Rudy’s

bias arising from his cooperation plea agreement and

that the defendants impeached Rudy by asking him

about his prior convictions and inconsistent state-

ments. Id. at 31-32, 34-35. Additionally, the Government

contends that Rudy’s invocation of his Fifth Amendment

right not to incriminate himself insulated the district

court’s ruling circumscribing questioning about the

Maywood murder investigation; the Government be-

lieves that such questioning involved a collateral matter

and therefore paled in comparison to Rudy’s important

Fifth Amendment right. Id. at 33, 36.2 4

24

Additionally, the Government renews its contention, which

it made to the district court, but which the district court did

not rule on, that Mr. Terrell “failed to object to Rudy’s testi-

mony and thus forfeited [his Sixth Amendment] claim.” Appel-

lee’s Br. 30 n.10. We disagree with the Government’s character-

ization of the record. Although Mr. Terrell’s counsel did not

specifically articulate a Sixth Amendment objection during

the trial, counsel evinced an intention to cross-examine Rudy

about the Maywood murder investigation in order to show

Rudy’s bias in favor of the Government. Furthermore,

(continued...)

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 49

4.

The Sixth Amendment to the Constitution of the

United States ensures that a defendant be given an op-

portunity for effective cross-examination. See Pennsyl-

vania v. Ritchie, 480 U.S. 39, 51-53 (1987); Delaware v. Van

Arsdall, 475 U.S. 673, 678-79 (1986). Nevertheless, trial

courts retain wide discretion to impose reasonable

limits on cross-examination in order to curb harass-

ment, prejudice, confusion of issues, threats to witness

safety and testimony that is repetitive and only

marginally relevant. Van Arsdall, 475 U.S. at 679; United

States v. Smith, 454 F.3d 707, 714 (7th Cir. 2006).

When a district court’s limitation of cross-examina-

tion directly implicates the values protected by the Con-

frontation Clause of the Sixth Amendment, we review

the district court’s ruling de novo; otherwise, we review

the district court’s limitation of cross-examination under

the more deferential abuse of discretion standard. See

Smith, 454 F.3d at 714. At issue here is the district court’s

limitation of the defendants’ cross-examination of Rudy

about his alleged pro-Government bias because of a desire

to curry favorable treatment in connection with the

Maywood murder investigation. “Bias is a term used

in the ‘common law of evidence’ to describe the rela-

24

(...continued)

Mr. Terrell’s post-trial motion amplified the constitutional

arguments in support of that issue. The objection was suffi-

ciently preserved. See United States v. Glover, 479 F.3d 511,

517 n.1 (7th Cir. 2007).

50 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

tionship between a party and a witness which might

lead the witness to slant, unconsciously or otherwise, his

testimony in favor of or against a party.” United States v.

Abel, 469 U.S. 45, 52 (1984). Cross-examination designed

to elicit witness bias directly implicates the Sixth Amend-

ment. See Abel, 469 U.S. at 49-52; Davis v. Alaska, 415

U.S. 308, 316-17 (1974); Alford v. United States, 282 U.S. 687,

691-92 (1931). Consequently, our review is de novo. If a

Sixth Amendment violation occurred, we shall set aside

the verdict unless the Government establishes that the

error was harmless beyond a reasonable doubt. See Van

Arsdall, 475 U.S. at 684; United States v. Nelson, 39 F.3d

705, 710 (7th Cir. 1994).

The exposure of a witness’s bias directly implicates

the Sixth Amendment. See Abel, 469 U.S. at 52 (“Proof of

bias is almost always relevant because the jury, as finder

of fact and weigher of credibility, has historically been

entitled to assess all evidence which might bear on the

accuracy and truth of a witness’ testimony.”). As we

noted in United States v. Recendiz, 557 F.3d 511, 530 (7th

Cir. 2009), “[a] core value [of the Sixth Amendment]

is the ability to expose a witness’s motivation for testi-

fying, his bias, or his possible incentives to lie.” Proof of

bias “is the ‘quintessentially appropriate topic for cross-

examination.’ ” United States v. Manske, 186 F.3d 770, 777

(7th Cir. 1999) (quoting Bachenski v. Malnati, 11 F.3d

1371, 1375 (7th Cir. 1993)).

We believe that the situation before us today clearly

implicates the defendants’ rights to meaningful cross-

examination with respect to witness bias. The Govern-

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 51

ment had made Rudy available to state prosecutors

for questioning about the Maywood murder. Rudy con-

ceded that he had given a statement to those prosecutors

with respect to that murder and that he never was

charged with that murder. He denied the existence of a

quid pro quo with the state or federal prosecutors. The

district court took the view that the Maywood murder

was “unrelated” to the issues on trial. See Trial Tr. at 1622,

Sept. 18, 2006 (“I’m not—I don’t think it’s appropriate

to ask about this, as I understand it, unrelated murder.”).

We respectfully take a different view from the one

taken by our colleague in the district court. Upon exam-

ination, the record makes clear that defense counsel

sufficiently articulated a link between Rudy’s involve-

ment in the pending state murder investigation and his

testimony in the federal action. The conceded facts

that Rudy was interrogated by state investigators soon

after he was arrested, that he gave a statement about

the murder of Curtis Rios and that he might have been

charged with the murder—a serious offense that carries

a severe punishment—could have been linked to

Rudy’s decision to cooperate with the Government in

this action. Cf. Lindh v. Murphy, 124 F.3d 899, 901 (7th Cir.

1997) (“[The witness] may have believed that testimony

helping the prosecution in this case, which achieved

notoriety throughout Wisconsin, would aid his [unre-

lated, pending criminal] cause, if only because it was

bound to come to the attention of the judge who

presided in the prosecution against him.”); United States

v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989) (“To

require evidence of an actual cooperation agreement

52 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

between [the Government] and [the allegedly biased

witness], as the district court in this case did, overlooks

the inherent and independent relevance of the mere fact

of a recently dismissed murder charge, a charge

which hung over the witness’ head like the sword of

Damocles . . . .” (emphasis in original)). We believe the

established facts were probative of Rudy’s possible bias.

He had been implicated in the murder, he had been

subject to the investigation, he had not been charged

and there was no indication that the investigation was

closed.

The mere fact that Rudy denied the existence of

an agreement not to prosecute him for the state murder

in return for his testimony against the defendants

does not end the matter. The defendants were entitled

to meaningful cross-examination on the question of bias

so that the jury could assess fully his testimony. As we

see it, the district court’s ruling placed counsel for the

defendants in a predicament not unlike the situation

facing counsel in Davis:

We cannot accept the Alaska Supreme Court’s

conclusion that the cross-examination that was

permitted defense counsel was adequate to de-

velop the issue of bias properly to the jury. While

counsel was permitted to ask [the witness] whether

he was biased, counsel was unable to make a

record from which to argue why [the witness]

might have been biased or otherwise lacked

that degree of impartiality expected of a witness

at trial. On the basis of the limited cross-examination

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 53

that was permitted, the jury might well have thought

that defense counsel was engaged in a speculative and

baseless line of attack on the credibility of an apparently

blameless witness[2 5 ] or, as the prosecutor’s objec-

tion put it, a ‘rehash’ of prior cross-examination.

On these facts it seems clear to us that to make

any such inquiry effective, defense counsel should

have been permitted to expose to the jury the

facts from which jurors, as the sole triers of fact

and credibility, could appropriately draw infer-

ences relating to the reliability of the witness.

Petitioner was thus denied the right of effective

cross-examination which would be constitu-

tional error of the first magnitude and no amount

of showing of want of prejudice would cure it.

415 U.S. at 318 (emphasis, other than the one accompany-

ing note 25, in original; internal quotation marks omitted).

Rudy’s alleged bias was more uncertain than the bias

alleged in Van Arsdall, and, perhaps, was even more

uncertain than the alleged bias in Davis. Nevertheless, it

was not so speculative as to make defense counsel’s

attempt to demonstrate it fall outside the guarantee of

the Sixth Amendment.

There are, of course, limits to the Sixth Amendment

guarantee of the opportunity to question a witness

about his bias. As the Supreme Court has stated:

“[T]he exposure of a witness’ motivation in tes-

tifying is a proper and important function of

25

This emphasis added.

54 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

the constitutionally protected right of cross-ex-

amination.” [Davis, 415 U.S. at 316-17]. It does not

follow, of course, that the Confrontation Clause

of the Sixth Amendment prevents a trial judge

from imposing any limits on defense counsel’s

inquiry into the potential bias of a prosecution

witness. On the contrary, trial judges retain wide

latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such

cross-examination based on concerns about,

among other things, harassment, prejudice, confu-

sion of the issues, the witness’ safety, or interroga-

tion that is repetitive or only marginally relevant.

And as we observed earlier this Term, “the Con-

frontation Clause guarantees an opportunity for

effective cross-examination, not cross-examina-

tion that is effective in whatever way, and to

whatever extent, the defense might wish.” Delaware

v. Fensterer, 474 U.S. 15, 20 (1985).

....

. . . We think that a criminal defendant states a

violation of the Confrontation Clause by showing

that he was prohibited from engaging in other-

wise appropriate cross-examination designed

to show a prototypical form of bias on the part

of the witness, and thereby “to expose to the jury

the facts from which jurors . . . could appropriately

draw inferences relating to the reliability of the

witness.” [Davis, 415 U.S. at 318].

Van Arsdall, 475 U.S. at 678-80 (citations modified; em-

phasis in original).

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 55

A bias theory may be so speculative that a court would

be entitled to preclude its admission under Rule 403.2 6

Here, however, although Rudy’s bias was denied

by the Government and Rudy himself, the defendants

articulated a reasonable argument to the contrary. The

timing, nature and status of the Maywood murder inves-

tigation was probative of bias and the defense had the

right to explore it fully and allow the jury to draw its

own conclusions.

That the defendants were permitted to examine other

matters relating to Rudy’s alleged bias, such as the

written plea agreement and Rudy’s prior convictions,

does not resolve the Sixth Amendment violation. Cf.

Davis, 415 U.S. at 318 (“We cannot accept the Alaska

Supreme Court’s conclusion that the cross-examination

that was permitted defense counsel was adequate to

develop the issue of bias properly to the jury.”). The

alleged bias arising out of the Maywood murder inves-

tigation was a separate and independent area of bias,

26

See United States v. Given, 164 F.3d 389, 392 (7th Cir. 1999)

(finding no error in a district court’s ruling precluding re-

recross-examination about a witness’s unrequited romantic

interest in the defendant because the issue was unsubstan-

tiated and had been unpursued by the defense); United

States v. Sinclair, 109 F.3d 1527, 1537-38 (10th Cir. 1997) (con-

cluding that the defendant’s theory of witness bias lacked

“factual support,” was “highly doubtful,” and, thus, fell

within the district court’s Rule 403 discretion to limit cross-

examination).

56 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

which the defendants sufficiently had distinguished

from the other areas of bias.

We must conclude that the questions that the

defendants were not permitted to ask were directly

relevant to the jury’s assessment of Rudy’s possible bias.

Accordingly, the restriction of the defendants’ cross-

examination of Rudy violated their rights under the

Sixth Amendment.

5.

We now examine whether the violations of Messrs.

Bell’s and Terrell’s Sixth Amendment confrontation

rights were harmless error. 2 7 Violations of the Sixth

Amendment’s Confrontation Clause are subject to harm-

less error review. See Van Arsdall, 475 U.S. at 684. “The

correct inquiry is whether, assuming that the damaging

potential of the cross-examination were fully realized,

a reviewing court might nonetheless say that the error

was harmless beyond a reasonable doubt.” Id. “Whether

an error is harmless beyond a reasonable doubt

27

Mr. Martin does not join in this argument. See Martin/Bell

Appellants’ Br. 24 (contending only that Rudy’s testimony was

necessary to convict Mr. Bell). Even if he had, we would find

that the wealth of evidence presented against Mr. Martin

renders the Sixth Amendment violation harmless. For example,

at least three high-ranking members of the Mafia Insanes

network, Donnell Simmons, Johnny Moore and Patrick Bray,

testified about the practice of paying Mr. Martin street taxes

collected from the Mafia Insanes controlled drug spots.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 57

depends upon factors such as the importance of the wit-

ness’s testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of

corroborating or contradictory evidence and the overall

strength of the prosecution’s case.” Smith, 454 F.3d at 715.

Mr. Bell contends that Rudy’s testimony was the only

evidence the Government offered linking him to the

overarching Mafia Insanes conspiracy, as organized

primarily by Mr. Martin.2 8 Mr. Bell concedes that evidence

established that he was a ranking member of the Mafia

Insanes street gang. However, he contends that “being a

member of a gang is not the same as being a member of

a drug conspiracy.” Martin/Bell Appellants’ Br. 25. For

example, Mr. Bell argued to the jury that his payments

of sizeable amounts of cash to Mr. Martin were

personal loans among friends. Mr. Bell now contends

that Rudy’s testimony was the only evidence the Gov-

ernment offered establishing that those payments were

street taxes collected from the drug spots controlled by

the Mafia Insanes conspiracy.

The Government contends that Rudy’s testimony was

hardly necessary to establish that Mr. Bell joined the

charged conspiracy. The Government notes that the

jury heard Mr. Bell’s post-arrest statement:

28

See Martin/Bell Appellants’ Br. 24-25 (“[A]lthough [Mr. Bell]

was a drug dealer he was not a member of Mr. Martin’s organi-

zation and never had been in a conspiracy with Mr. Martin’s

organization to distribute narcotics.” (emphasis in original)).

58 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

I was affiliated with the Mafia Insane Vice Lords

and I ran one drug spot on North Avenue in

Chicago from 2000 until 2002 or 2003. I supervised

other drug workers when I was running the

drug spot on North Avenue. A Five Star Universal

Elite is a high-ranking member of the Mafia

Insane Vice Lords.

Trial Tr. at 157, Sept. 5, 2006.

Although Mr. Bell contends that this statement does

not contain an admission that he paid a street tax to the

king of the Mafia Insanes, other testimony directly ad-

dresses this point. Rudy’s general testimony about

the structure of the Mafia Insanes network, not at all

specific to Mr. Bell’s participation, was really of little or

no consequence to Mr. Bell’s conviction. The jury had

substantial evidence from which to understand the net-

work and to assess Mr. Bell’s involvement in the

charged conspiracy. The evidence overwhelmingly

showed that Mr. Bell agreed with other members of

the conspiracy to distribute narcotics. The violation of

Mr. Bell’s Sixth Amendment right to confront Rudy

was harmless beyond a reasonable doubt.

Mr. Terrell also claims that he was a drug dealer, but

not a member of the charged conspiracy. He contends

that the evidence at trial showed that he was not a

member of the Mafia Insanes gang, but rather another

gang called the Cicero Insane Vice Lords. Mr. Terrell

emphasizes that he did not pay street taxes to Mr. Martin.

He concedes that Donnell Simmons told the jury how

Mr. Terrell had supplied certain Mafia Insanes dealers

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 59

with drugs. However, Mr. Terrell contends that the

Simmons testimony could not have been believed with-

out corroboration from Rudy. He also contends that

merely supplying drugs to the Mafia Insanes gang

did not make him part of the charged conspiracy.

The Government points out that five witnesses testi-

fied about Mr. Terrell’s involvement in the charged con-

spiracy and that the jury heard wiretap recordings

of telephone calls between Mr. Terrell and other co-con-

spirators. It claims that these calls revealed that

Mr. Simmons, Mr. Terrell and another co-conspirator,

Mario Taylor, cooperated to avoid law enforcement

detection of their narcotics distribution efforts. It points

out that Christopher Clark, Mr. Terrell’s confederate,

testified that Mr. Terrell and Clark fronted large amounts

of narcotics to Mr. Simmons, Mr. Taylor and other de-

fendants charged in the conspiracy. The men used

code words in their dealings to avoid law enforcement

detection. Mr. Terrell personally knew that Mr. Simmons

was a high-ranking member of the Mafia Insanes

drug distribution network, and, thus, Mr. Terrell clearly

knew or intended that his sales would further the

overall narcotics distribution scheme.

After a thorough examination of the record, we are

convinced that Rudy’s testimony contributed little, if

any, new information for the jury’s consideration and

that its corroborative value to the Government’s

overall effort to convict Mr. Terrell was, at best, minimal.

We are convinced beyond a reasonable doubt that the

Confrontation Clause error was harmless.

60 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

C. Jury Instructions Challenge

1.

Mr. Terrell separately challenges the district court’s

refusal to give the jury a multiple conspiracies instruc-

tion. As we have noted earlier, “Mr. Terrell’s defense

theory was that although he may have dealt drugs per-

sonally, he was involved in an entirely different con-

spiracy than the conspiracy charged by the government

in Count One of the Indictment.” Terrell Appellant’s Br. 5.

The crux of Mr. Terrell’s position is that, although

he conspired to distribute narcotics with his associate,

Christopher Clark, he never conspired with the larger

conspiracy charged in the indictment. He contends that

his sales to Mr. Simmons and Mr. Taylor reveal merely

a buyer-seller relationship. During closing argument,

Mr. Terrell’s defense counsel emphasized the following

facts in his attempt to show that Mr. Terrell had joined

a conspiracy with Clark, but not with Mr. Simmons and

the other Mafia Insanes co-conspirators: (1) that Mr. Terrell

was not a member of the Mafia Insanes gang; (2) that

Mr. Terrell did not pay street taxes to the Mafia Insanes;

(3) that Mr. Terrell actually competed for customers

with the Mafia Insanes; and (4) that Mr. Terrell’s goal

was exclusively to make money for himself.

Mr. Terrell’s counsel proposed that the district court

give a multiple conspiracy jury instruction modeled on

the Sixth Circuit Pattern Jury Instructions 3.08 and 3.09.

See Trial Tr. at 959, Jul. 18, 2007. The Government ob-

jected to the instructions on the ground that no

evidence supported Mr. Terrell’s theory of multiple

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 61

conspiracies. The district court noted that the pattern

jury instructions referred to multiple defendants,

while Mr. Terrell had been tried alone. The court also

noted that Mr. Terrell had not modified the pattern jury

instructions to reflect accurately his particular theory of

multiple conspiracies. Mr. Terrell’s counsel accordingly

submitted a revised version of the proposed multiple

conspiracies instructions.2 9 Defense counsel then argued

29

Mr. Terrell’s revised proposed instruction 3.08 read as follows:

(1) The indictment charges that the defendants were all

members of one single conspiracy to commit the crime

of knowingly and intentionally to possess with intent

to distribute and to distribute controlled substances,

namely, in excess of 5 kilograms of mixtures con-

taining cocaine and in excess of 50 grams of mixtures

containing cocaine base (in the form of “crack” cocaine),

Schedule II Narcotic Drug Substances; and in excess

of 1 kilogram of mixtures containing heroin, and

marijuana, Schedule I controlled Substances, in viola-

tion of Title 21, United States Code, Section 841(a)(1).

(2) The defendant has argued that there were really

separate conspiracies, one between Jerome Terrell and

Christopher Clark to commit the crime of possession

with intent to distribute cocaine and cocaine base

and another one between the Mafia Insane Vice Lords

to commit the crime of Possession with intent to distrib-

ute cocaine, cocaine base, heroin and marijuana.

(3) To convict any one of the defendant [sic] of the

conspiracy charge, the government must convince

you beyond a reasonable doubt that the defendant

(continued...)

62 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

that the instructions were necessary because Mr. Terrell

was part of a smaller conspiracy than the one charged in

the indictment. See Trial Tr. at 972, Jul. 19, 2007 (“What

has the government shown was the agreement? Was it

this overarching agreement between [Mr. Terrell] and

the conspiracy, which is what is necessary, of course, or

was there a smaller conspiracy going on where there

was agreement perhaps with Christopher Clark and

Donnell Simmons?”).

The district court indicated confusion about whether

Mr. Terrell was arguing that he was innocent of joining

the charged conspiracy or whether he admitted to

joining the conspiracy, but only a small part of it. The

Government also reiterated its objections to the pro-

29

(...continued)

was a member of the conspiracy charged in the indict-

ment. If the government fails to prove this, then you

must find that defendant not guilty of the conspiracy

charge, even if you find that he was a member of

some other conspiracy. Proof that a defendant was a

member of some other conspiracy is not enough to

convict.

(4) But proof that defendant was a member of some

other conspiracy would not prevent you from returning

a guilty verdict, if the government also proved that

he was a member of the conspiracy charged in the

indictment.

See R.1875 at 2-3. Mr. Terrell’s proposed instruction 3.09

was materially identical to the Sixth Circuit pattern jury

instruction 3.09. Id. at 3-4.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 63

posed instructions as unsupported by the evidence. Id. at

974. A colloquy followed between the court and counsel:

THE COURT: Let me ask another question.

If Mr. Terrell conspired with Mr. Clark to

commit the crime of possession with intent to

distribute, which is what the defendant is effec-

tively conceding in paragraph 2, and Mr. Clark

was a part of the conspiracy that’s charged in the

indictment, and some of Mr. Terrell’s activities

with Mr. Clark were also part of Mr. Clark’s ac-

tivities with respect to the conspiracy as a

whole, why isn’t that sufficient to establish that

Mr. Terrell is a member of the conspiracy?

[THE GOVERNMENT]: We think it is.

THE COURT: Remember, one of the principles

that is just well recognized is that the defendant

doesn’t have to know all the members of the

conspiracy. He doesn’t have to know what all

the other ones were up to or when and how they

were doing it as long as he agreed with one or

more other members to participate in the alleged

wrongdoing. It seems to me that that’s what

the charge establishes here.

[DEFENSE COUNSEL]: They have to further the

overall cause, your Honor. They have to further

the overall cause of the conspiracy. I think that’s

the bottom line in any conspiracy trial. One, that

there was a conspiracy; and, number two, that

this person joined it with the intent of furthering

64 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

that conspiracy. So you need an agreement, and

that’s what the courts have been saying is that

you have to look at the agreement.

Was he in agreement with this entire conspiracy,

or was he in agreement with Christopher Clark?

Now, if he was in agreement with Christopher

Clark, what this instruction is telling the jury is

that, look, that’s not enough. He just has an agree-

ment with Christopher Clark. It doesn’t mean he

has an agreement with everybody else in this

conspiracy.

THE COURT: All right. Here is an instruction to

which there was no objection: “The government

need not prove that the defendant knew all of the

coconspirators or knew each detail of the conspir-

acy or that the defendant played more than a

minor role. The defendant need not have partici-

pated in all of the events of the charged con-

spiracy to be a member of that conspiracy.”

[THE GOVERNMENT]: Judge, if I can just say one

thing.

I think you have hit the nail on the head. If the

government proves that the two individuals,

Mr. Clark and Mr. Terrell, who are both men-

tioned in paragraph 1 of the indictment, agreed

with each other, I think that’s the end of the

story. I think that based on that, this instruction

is a misstatement of the law.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 65

We think we have proved more than that mini-

mum agreement between Mr. Terrell and Mr.

Clark. We think we have shown several agree-

ments. This is a very large conspiracy by num-

erous factions of the Vice Lords, and there is a

great deal of evidence in this case that there were

agreements beyond the Clark/Terrell agreement.

But the Clark/Terrell agreement does the trick as

far as the government is concerned as far as just

the existence of the conspiracy. It may not show

or it may be more doubtful whether it shows the

quantities and all the things that I think we can

prove with all the other evidence we have pre-

sented. But as far as establishing a conspiracy,

I think this instruction that’s offered, this Sixth

Circuit instruction, confuses the issue.

THE COURT: I am going to sustain the govern-

ment’s objection to the multiple conspiracies

instruction.

Id. at 975-78.

Mr. Terrell next moved for the inclusion of the

Seventh Circuit pattern buyer-seller relationship instruc-

tion, which the district court agreed was appropriate.

Id. at 980-81.

The jury convicted Mr. Terrell on the conspiracy

count, among others. In his Rule 33 post-trial motion,

Mr. Terrell contended that the district court had erred

by refusing his proposed multiple conspiracies instruc-

tions. The district court denied the motion, explaining:

66 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

Terrell effectively concedes that the evidence was

sufficient to establish that he was guilty of con-

spiring with others to distribute narcotics: The

government presented the testimony of Donnell

Simmons, the supervisor of a “drug spot” to

whom Terrell supplied quantities of powder and

crack cocaine. Christopher Clark, who served as a

courier for the drugs that Terrell supplied and

cash that Simmons returned, also testified. The

evidence included recorded conversations in

which Clark told Simmons that he was waiting

for a cocaine supply from Terrell, as well as a call

in which Simmons advised Terrell about a device

that would enable Terrell to determine if “some-

body’s wearing a wire,” and another one in

which Simmons warned Terrell about police

surveillance over Terrell’s own drug spot. Terrell

and his courier, Clark, also interacted with

Mario Taylor and with three drug sellers

working under Mario Taylor’s supervision, using

shorthand expressions in a manner that amply

reflects Terrell, Clark, and Mario Taylor’s shared

understanding of the practice of providing or

obtaining particular quantities of cocaine for

cash. At Defendant’s request, the court did give

the jury a “buyer-seller” instruction. He now

contends that, had the court also given a “multiple

conspiracies” instruction, the jury would not

have held him accountable for such a large quan-

tity of drugs. But this argument ignores the evi-

dence that Terrell himself was involved in traf-

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 67

ficking prodigiously large quantities of cocaine;

that he had a standardized way of doing busi-

ness with others over a substantial time period;

and that he maintained a financial interest in

the drug business conducted by others.

R.2130. Mr. Terrell appeals the district court’s ruling.

2.

Mr. Terrell contends that the district court denied his

right to a fair trial by refusing the proposed multiple

conspiracies instruction. He argues that the trial evi-

dence showed that “[t]he goal of the conspiracy charged

by the government in Count One was the financial better-

ment of Mr. Martin’s drug operation,” but that “[t]he goal

of [the conspiracy Mr. Terrell admitted to participating

in with Mr. Clark] was the betterment of Mr. Terrell’s

financial interests and the interests of those working with

him.” Terrell Appellant’s Br. 10; see also Terrell Reply Br. 4.

He emphasizes that his proposed instructions “did not

instruct the jury that it should acquit Mr. Terrell if he

conspired with a subset of the charged conspiracy,” and

he concedes that such an instruction would have been

erroneous as a matter of law. Terrell Reply Br. 1. He

contends that sufficient evidence supported his theory

of multiple conspiracies. See Terrell Appellant’s Br. at 10-

11 (suggesting that he was not a member of the Mafia

Insanes street gang, that he did not pay street taxes to

the leadership of that gang and that he was in a con-

spiracy that actually competed with the Mafia Insanes).

He admits that the evidence showed that he sold drugs

68 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

to members of the charged conspiracy, but maintains

that those sales were not in furtherance of the conspiracy,

but rather were typical of a buyer-seller relationship. Id.

3.

We generally review for abuse of discretion a district

court’s refusal to provide a requested jury instruction.

See United States v. Campos, 541 F.3d 735, 744 (7th Cir.

2008). However, “[w]e review the district court’s refusal

to instruct the jury on a theory of defense de novo.”

United States v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005).

“A defendant is entitled to an instruction on his theory

of defense only if ‘(1) the instruction provides a correct

statement of the law; (2) the theory of defense is sup-

ported by the evidence; (3) the theory of the defense

is not part of the government’s charge; and (4) the

failure to include the instruction would deprive the

defendant of a fair trial.’ ” Campos, 541 F.3d at 744 (quoting

United States v. Millet, 510 F.3d 668, 675 (7th Cir. 2007)).

“If the instructions treated the conspiracy issue fairly

and adequately, we will not disturb them.” United States

v. Severson, 3 F.3d 1005, 1011 (7th Cir. 1993).

To be guilty of conspiring, one must agree with

another person, with the necessary criminal intent, to

achieve a certain criminal objective. See United States v.

Thornton, 197 F.3d 241, 254 (7th Cir. 1999). “The crime of

conspiracy focuses on agreements, not groups.” United

States v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991).

Thus, the Government must prove that “the defendant

joined the agreement alleged, not the group.” Id. “The

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 69

agreement is all-important in conspiracy, for one must

look to the nature of the agreement to decide several

critical issues, such as whether the requisite mental

state is also present, whether the requisite plurality is

present, and whether there is more than one conspir-

acy. As courts have so often said, the agreement is the

essence or gist of the crime of conspiracy.” 2 Wayne R.

LaFave, Substantive Criminal Law § 12.2(a) (2d ed. 2010)

(internal quotation marks and footnotes omitted); see

also United States v. Varelli, 407 F.2d 735, 742 (7th Cir. 1969)

(“In essence, the question is what is the nature of the

agreement.”). “Even when it is clear that every defendant

is a conspirator, it may be extremely important to deter-

mine precisely what the object dimension and party

dimension of the agreement are, for that in turn will

decide the critical question of whether more than one

conspiracy exists.” Lafave, Substantive Criminal Law,

supra, § 12.3(b). “Multiple conspiracies exist when there

are separate agreements to effectuate distinct purposes.”

Thornton, 197 F.3d at 254.

Here, Mr. Terrell was tried alone.3 0 The jury instructions

30

Determining whether multiple conspiracies existed is par-

ticularly important when several defendants are tried together.

If the defendants joined multiple and distinct conspiracies,

trying the defendants jointly risks allowing the jury to trans-

fer “guilt from one to another across the line separating

[the] conspiracies, subconsciously or otherwise.” Kotteakos v.

United States, 328 U.S. 750, 774 (1946). In such cases, a multiple

conspiracies instruction may be warranted. Id. at 769-72; see

also United States v. Schmucker-Bula, 609 F.2d 399, 403 (7th Cir.

(continued...)

70 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

issued by the district court explained adequately that

Mr. Terrell should be acquitted if the evidence failed

30

(...continued)

1980) (“It is true, as the defendant argues, that courts should

be vigilant against the transfer of guilt ‘from one to another

across the line separating conspiracies . . . .’ Kotteakos v.

United States, 328 U.S. 750, 774 (1946). It is also true, how-

ever, that the existence of multiple conspiracies is a ques-

tion of fact, and the role of the court is generally limited to in-

structing the jury when the possibility of a variance between

the evidence and the conspiracy charged in the indictment

arises. See United States v. Papia, 560 F.2d 827, 838 (7th Cir.

1977); United States v. Varelli, 407 F.2d 735, 746 (7th Cir. 1969).

The trial court properly instructed the jury that proof of sev-

eral conspiracies is insufficient to permit conviction unless

one of the conspiracies proved is the one charged in the in-

dictment.” (parallel citations omitted)).

This problem usually is not present when a defendant is

tried alone. In such a case, a multiple conspiracies instruction

well may be unnecessary. See United States v. Anguiano, 873

F.2d 1314, 1318 (9th Cir. 1989) (“[A] multiple conspiracies

instruction is generally designed for trials involving multiple

defendants engaged in multiple conspiracies, not for trials of

lone defendants who are worried that the jury may not

agree upon the same set of facts.”); see also United States v.

Richardson, 532 F.3d 1279, 1290-91 (11th Cir. 2008); United States

v. Corey, 566 F.2d 429, 431 n.3 (2d Cir. 1977). Therefore, as long

as the district court instructs the jury on the nature of the

conspiracy charge, emphasizing that the Government must

prove that the defendant intentionally agreed to advance the

aim of the conspiracy, there is usually no need for a

multiple conspiracies instruction when a defendant is tried

alone.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 71

to establish the existence of the charged conspiracy or

that Mr. Terrell did not agree to join it. Furthermore, the

evidence in this case did not warrant the issuance of

a multiple conspiracies instruction. A multiple con-

spiracies instruction is unnecessary when the evidence

reveals the existence of only one conspiracy. See United

States v. Longstreet, 567 F.3d 911, 921 (7th Cir. 2009);

Jenkins, 419 F.3d at 618; see also Thornton, 197 F.3d at 255;

United States v. Mims, 92 F.3d 461, 467-68 (7th Cir.), reh’g

granted on other grounds 101 F.3d 494 (7th Cir. 1996);

United States v. Shorter, 54 F.3d 1248, 1256 (7th Cir. 1995).

The nonexistence of multiple conspiracies may be so

obvious that the jury need not be instructed on that

issue. See Severson, 3 F.3d at 1010.

Here, upon examination of the record, we believe

the evidence adduced during Mr. Terrell’s trial re-

vealed only one, interdependent conspiracy to distribute

narcotics. We emphasize that the purpose of the con-

spiracy charged in Count One of the indictment

was simply to distribute narcotics. Mr. Terrell fails to

articulate a different or distinct purpose for the con-

spiracy he admits to have joined with Christopher

Clark. Mr. Terrell’s characterization of an alternative

conspiracy, consisting of an agreement with Clark to

further Mr. Terrell’s financial interests, as opposed to

the financial interests of the Mafia Insanes gang, is

nothing more than a description of a subset of the con-

spiracy charged in the indictment. “One can join a con-

spiracy to make money, even though others join it for

different reasons. The question is whether the parties

have agreed to advance a common goal.” United States

72 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

v. Duff, 76 F.3d 122, 127 (7th Cir. 1996).3 1 Although

we have trouble conceiving of a reason motivating the

co-conspirators in this case to join the conspiracy, other

than to advance their individual financial interests,

that issue is beside the point; each co-conspirator’s finan-

cial motivation for joining the conspiracy is essentially

irrelevant.

What is clear, and of paramount relevance, is that

each co-conspirator agreed to advance the conspiracy’s

goal of distributing narcotics. The evidence revealed that

Mr. Terrell fronted wholesale quantities of narcotics to

the members of the conspiracy and took steps, such as

cooperating with Mr. Simmons to avoid police detec-

tion, to further the conspiracy’s objectives. Because

Mr. Terrell and Christopher Clark were both charged

as co-conspirators in Count One of the indictment,

Mr. Terrell’s concession that he conspired to distribute

narcotics with Clark, along with the evidence that

Mr. Terrell fronted narcotics to other co-conspirators

with knowledge that the narcotics would be distributed,

31

The facts that Mr. Terrell did not pay street taxes to and was

not a member of the Mafia Insanes does not establish the

existence of multiple conspiracies. The crucial fact is that all

the co-conspirators agreed to distribute narcotics in the west

side of Chicago during the relevant time period.

Of course, isolated instances of cooperation between com-

peting drug distribution networks may not support the ex-

istence of one, overarching conspiracy. Cf. United States v.

Townsend, 924 F.2d 1385, 1393 (7th Cir. 1991) (discussing

United States v. Fiorito, 499 F.2d 106, 109 (7th Cir. 1974)).

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 73

essentially precludes a theory of multiple conspiracies.

The Government “may elect to proceed on a subset

of the allegations in the indictment, proving a conspiracy

smaller than the one alleged, so long as the subset is

also illegal.” United States v. Wilson, 134 F.3d 855, 865

(7th Cir. 1998) (internal quotation marks and citation

omitted); see also Campos, 541 F.3d at 745; United States

v. Payne, 226 F.3d 792, 795 (7th Cir. 2000). Although

there was some evidence that Mr. Terrell competed

with his co-conspirators for customers from time-to-

time, there was other evidence that he frequently co-

operated with members of the conspiracy and agreed to

further the conspiracy’s objective. The jury rejected

Mr. Terrell’s buyer-seller theory and based its verdict

on the substantial evidence showing that Mr. Terrell

agreed to join the conspiracy to distribute narcotics. Cf.

United States v. Sir Kue Chin, 534 F.2d 1032, 1035 (2d Cir.

1976) (“The essence of the crime is an agreement, and

there is no more reason to say that a supplier of narcotics

is necessarily engaged in two conspiracies because he

has two sources of supply than there would be because

he had two purchasers.”).

Finally, we note that Mr. Terrell’s buyer-seller theory

was valid and an essential component of his defense.

That theory depended on a characterization of the evi-

dence showing that Mr. Terrell never agreed to join

the conspiracy in the first place. The district court’s

instructions on that subject were satisfactory.

Mr. Terrell was not entitled to the multiple conspiracies

instruction because the theory of defense was not sup-

74 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

ported by the evidence. The theory of the defense was

essentially a subset of the Government’s charge and the

failure to include the instruction did not deprive

Mr. Terrell of a fair trial. The instruction given by the

district court put the case before the jury in a straight-

forward and comprehensive manner.

D.

Sentencing Enhancement Challenge

Mr. Bell also challenges the inclusion of the U.S.S.G.

§ 2D1.1(b)(1) enhancement in the district court’s guide-

lines calculation. That enhancement applies when the

defendant possessed a dangerous weapon during the

course of the commission of the drug offense.

The government bears the burden of first proving

by a preponderance of the evidence that the de-

fendant possessed the weapon. The defendant

need not have actual possession of the weapon;

constructive possession is sufficient. If the gov-

ernment carries its burden, then the defendant

must show that it was clearly improbable that

the weapon was connected to the drug offense.

United States v. Are, 590 F.3d 499, 526 (7th Cir. 2009)

(internal quotation marks and citations omitted). Co-con-

spirators’ foreseeable possession of dangerous weap-

ons may be attributable to a defendant so as to trigger

application of the enhancement. See United States v. Emer-

son, 501 F.3d 804, 815 (7th Cir. 2007). We review factual

findings under U.S.S.G. § 2D1.1(b)(1) for clear error. See

Are, 590 F.3d at 526.

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 75

During Mr. Bell’s sentencing hearing, the Government

argued for application of the enhancement because fire-

arms ammunition and drugs were recovered from

Mr. Bell’s residence at the time of his arrest and because,

in telephone calls between Mr. Bell and co-conspirators

recorded during the course of the conspiracy, Mr. Bell

asked to borrow a “thumper” for protection and bragged

about carrying a “thumper” to avoid capture by the

police. See R.1902, Ex. A. A co-conspirator testified that

a “thumper” referred to a pistol. See Trial Tr. at 475-76,

Sept. 6, 2006. The district court ruled that the Govern-

ment had met its burden because the circumstantial

evidence supported a finding that Mr. Bell had pos-

sessed a dangerous weapon during the course of the

conspiracy. The district court also noted that countless

pieces of evidence adduced at trial supported the infer-

ence that co-conspirators’ possession of dangerous weap-

ons was foreseeable. The district court discounted co-

conspirator testimony to the effect that he never gave

Mr. Bell a firearm.

Mr. Bell contends that the district court’s factual

finding was erroneous. He submits that the district

court should have believed the co-conspirator’s testi-

mony and that the recorded telephone calls were too

ambiguous to have supported the finding. We disagree.

The finding clearly was supported by the evidence. The

district court weighed appropriately the evidence and

explained sufficiently its finding. The Government met

its burden and the enhancement was applied correctly

in Mr. Bell’s guidelines calculation.

76 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

E.

Other Sentencing Challenges

Messrs. Martin, Bell, Taylor and Braboy raise a host

of additional challenges to their sentences. Messrs. Taylor

and Braboy contend that the district court erred by

failing to consider and articulate its consideration of

certain 18 U.S.C. § 3553(a) factors when it imposed their

sentences. We review sentences for reasonableness

under an abuse-of-discretion standard. See Gall v. United

States, 552 U.S. 38, 51 (2007). Sentences within an appro-

priately calculated guidelines range are presumptively

reasonable. Id.; see also United States v. Wallace, 531 F.3d

504, 507 (7th Cir. 2008). When considering the 18 U.S.C.

§ 3553(a) factors, the district court need not “write

a comprehensive essay applying the full panoply of

penological theories and considerations, which is to

say everything invoked or evoked by section 3553(a).”

United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); see

also United States v. Jumah, 599 F.3d 799, 813-14 (7th Cir.

2010); United States v. Laufle, 433 F.3d 981, 987 (7th Cir.

2006).

Messrs. Taylor and Braboy contend that the district

court failed to take into account their history and charac-

teristics, specifically their troubled childhoods and their

ages at the time of sentencing. However, during the

sentencing hearing, the district court stated that it

had considered Mr. Taylor’s “entire record” and noted

that Mr. Taylor had “made a significant change in [his]

life,” reflecting that the district court had compared

Mr. Taylor’s lifestyle and personal characteristics exhib-

Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265 77

ited before his arrest with his post-arrest conduct. Tr.

at 26, Dec. 10, 2007. During Mr. Braboy’s sentencing

hearing, the district court referenced several specific

arguments asserted in his sentencing memorandum,

including Mr. Braboy’s newfound maturity, and stated

that “I know that given the family background, . . . the

temptation to just get involved in criminal conduct is

enormous.” Tr. at 41-42, Dec. 4, 2007. These statements

reveal that the district court gave due consideration to

the § 3553(a) factors raised by the defendants. The de-

fendants concede that the district court appropriately

calculated their guidelines ranges. The within-guidelines

sentences that the district court imposed were reasonable.

Next, Messrs. Martin and Bell contend that the district

court erred by not considering whether the sentencing

disparity between crack and powder cocaine yields a

sentence greater than necessary to achieve 18 U.S.C.

§ 3553(a)’s purpose. Kimbrough v. United States, 552 U.S.

85 (2007). The Government agrees that a limited remand

to consider this issue is appropriate. Accordingly, we

order a limited remand so that the district court may

follow the procedures described in United States v.

Taylor, 520 F.3d 746, 748-49 (7th Cir. 2008), to address

the effect of both the 2007 Amendment to U.S.S.G. § 2D1.1

and Kimbrough v. United States, 552 U.S. 85 (2007), on

Messrs. Martin’s and Bell’s sentences. After resolving

any motion for a reduced sentence under 18 U.S.C.

§ 3582(c)(2) based on the Amendment, the court should

indicate whether it is inclined to reduce further

78 Nos. 07-2272, 07-3893, 07-3940, 07-4010 & 08-3265

Messrs. Martin’s or Bell’s sentences under Kimbrough.3 2

Additionally, although Messrs. Braboy and Taylor did not

raise the Kimbrough issue in their appellate arguments,

we note that they were sentenced prior to the issuance

of Kimbrough, and, thus, are entitled to a remand pursuant

to the procedures we described in United States v.

Taylor, 520 F.3d 746, 748-49 (7th Cir. 2008). Mr. Terrell

was sentenced after the enactment of the 2007 Amend-

ment and Kimbrough, and, thus, he could have raised

those issues before the district court if the court had not

addressed adequately those issues. Accordingly, the

record does not support a remand for resentencing for

Mr. Terrell.

Conclusion

For the foregoing reasons, we affirm the district court’s

pretrial and trial rulings. We order limited remands for

reconsideration of Messrs. Martin’s, Bell’s, Braboy’s and

Taylor’s sentences.

A FFIRMED in part;

R EMANDED in part

32

We already have severed Mr. Simmons’s appeal, No. 07-2039

and Jermaine Banks’s appeal, No. 07-1444, and remanded

with identical instructions on this issue.

8-24-10