The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2696, 98-2697, 98-2703, 98-2704,
98-2705, 98-2714, 98-2715, 98-2716, 98-2766,
98-2799, 98-2800, 98-2821 & 98-2965
United States of America,
Plaintiff-Appellee-Cross-Appellant,
v.
Harold Jackson, Kevin Williams, Dion Lewis
& Jathel Garrett,
Defendants-Appellants-Cross-Appellees,
and
Derrick Mallett, Richard Wash, Scott Davis,
James Doty, Michelle Gaines, Clarence Haywood,
Cedric Parks & James A. Yates,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 510--George M. Marovich, Judge.
Argued January 21, 2000--Decided March 23, 2000
Before Posner, Chief Judge, and Diane P. Wood and
Evans, Circuit Judges.
Posner, Chief Judge. The government in 1995
indicted 39 members of the Gangster Disciples, a
street gang operating in southwestern Chicago and
the southern Chicago suburbs, on federal
narcotics charges. Twelve of these individuals,
convicted by a jury in the federal district court
in Chicago after a three-month trial, appeal to
us, challenging their convictions and heavy
sentences--three of the defendants were sentenced
to life in prison, and only four received
sentences shorter than 20 years. The government
has cross-appealed, complaining that several of
the sentences were too short. Many issues are
raised but few have sufficient merit to warrant
discussion. The evidence of each defendant’s
guilt was clearly sufficient and the alleged
trial errors were for the most part--though with
an important exception--either nonexistent or
clearly harmless.
Taking the evidence as favorably to the
government as the record permits, as we are
required to do, we have a gang some 6,000 strong
engaged mainly in the sale of crack and powder
cocaine, led by an Illinois state prison inmate
named Larry Hoover. By the early 1990s the gang
had revenues of some $100 million a year. As
befits an operation of such magnitude, the gang
had an elaborate structure. Hoover was assisted
by a board of directors, and below the board were
governors and regents having territorial
jurisdictions, along with assistant governors,
treasurers, security chiefs, and other officials
all with defined responsibilities. The defendants
in this case are drawn mainly from the leadership
ranks (and include governors, assistant
governors, and regents), although some of them
merely assisted the leaders.
Some of the government’s strongest evidence was
obtained by electronic surveillance of Hoover.
Microphones were concealed in the visitors’
badges of Hoover’s visitors--many of whom were
gang officials--and the conversations captured on
those microphones were relayed from the prison,
which is in southern Illinois, to Chicago, and
there recorded, and listened to, by federal
agents. Two of the discussion-worthy issues
raised by the defendants concern this electronic
surveillance. A third issue relating to
electronic surveillance (though not of Hoover)
requires only the briefest of mentions. It is
whether a warrant that authorizes "roving
surveillance," such as the interception
authorized here, pursuant to 18 U.S.C. sec.
2518(11), of calls to and from any cellular
phones that one of the Gangster Disciples (Darryl
Johnson) might use, violates the Fourth
Amendment’s requirement of particularity of
description of the place to be searched. Cellular
phones have no fixed locus and here were not even
identified by a telephone number. But the cases
hold that such roving surveillance is
constitutional, United States v. Gaytan, 74 F.3d
545, 553 (5th Cir. 1996); United States v.
Bianco, 998 F.2d 1112, 1120-25 (2d Cir. 1993);
United States v. Petti, 973 F.2d 1441, 1443-45
(9th Cir. 1992); see also Michael Goldsmith,
"Eavesdropping Reform: The Legality of Roving
Surveillance," 1987 U. Ill. L. Rev. 401, 415-25,
and we have nothing to add to their analysis of
the issue.
The first issue we do want to discuss is whether
the chief judge of the federal district court in
the Northern District of Illinois (which is
mainly Chicago) had jurisdiction to authorize the
surveillance. Title III, the federal statute
regulating electronic surveillance, authorizes an
interception order by a judge "within the
territorial jurisdiction of the court in which
the judge is sitting." 18 U.S.C. sec. 2518(3).
Hoover’s prison is in the Southern District of
Illinois and the defendants argue that therefore
the judge lacked the power to issue the order. If
this is right, the evidence obtained by the
surveillance was inadmissible. 18 U.S.C. sec.sec.
2515, 2518(10)(a); see also United States v.
Ojeda Rios, 495 U.S. 257, 260 n. 1 (1990). The
government points out that so far as bears on
this case "interception" is defined as "the aural
or other acquisition" of the contents of a
communication, 18 U.S.C. sec. 2510(4), and that
an "acquisition" took place in the Northern
District, since the agents first listened to the
conversations in Chicago. This is literally true
and has persuaded the other courts in which the
issue has arisen to uphold the government’s
position, United States v. Denman, 100 F.3d 399,
402-04 (5th Cir. 1996); United States v.
Rodriguez, 968 F.2d 130, 135-36 (2d Cir. 1992);
see also United States v. Tavarez, 40 F.3d 1136,
1138 (10th Cir. 1994); cf. United States v.
Ramirez, 112 F.3d 849, 852 (7th Cir. 1997), but
it creates, as the government’s lawyer
acknowledged with refreshing candor at argument,
a potential for abuse that resembles the familiar
problem of "judge shopping" for conventional
search and arrest warrants. Candace McCoy, "The
Good-Faith Warrant Cases--What Price Judge-
Shopping?," 21 Crim. L. Bull. 53, 62 (1985); see
also United States v. Leon, 468 U.S. 897, 918
(1984). This is true even though the cases gloss
"acquisition" to mean "first acquisition." United
States v. Denman, supra, 100 F.3d at 403; United
States v. Rodriguez, supra, 968 F.2d at 136. The
government still could ask any federal judge in
the United States to issue an interception order,
and simply arrange for the intercepted
communications to be relayed to the judge’s
district and listened to there by federal agents.
The judge might be in Hawaii, the intercepted
communication in Florida, and the investigation
to which the interception pertained in Maine.
Although the potential for abuse is undeniable,
it does not authorize us to rewrite the statute,
especially because the defendants do not argue
that the potential has ever become actual and
because their position, while curing one problem,
would create another--namely that interception
orders would often have to be obtained from
judges at locations wholly adventitious in
relation to the investigation to which the
interception pertained. Admittedly this is a
feature of discovery practice as well, and so is
not quite the anomaly that the government depicts
it as. See, e.g., Fed. R. Civ. P. 45(a)(2).
Still, it is sheer accident that Hoover was
imprisoned in southern Illinois rather than in
the Northern District of Illinois, or for that
matter in Colorado or Indiana; the location of
his prison bears no relation to the location of
his and his confederates’ crimes and of the
government’s investigation of those crimes. And
this means that the privacy interest that the
statute seeks to protect is likely to be better
protected under the government’s interpretation,
because the judge who is familiar with the
investigation is in a better position to appraise
the materiality of the communications that the
government wants to intercept.
Furthermore, although the parties have assumed
that the reference to "the territorial
jurisdiction of the court" is to the district in
which the judge sits, this is not certain, since
for many purposes the jurisdiction of a district
court extends beyond the boundaries of the
district. For example, the personal jurisdiction
of a federal district court often extends beyond
the district and even state boundaries, and
indeed to the nation as a whole under statutes
that provide for nationwide service of process.
Some districts are coterminous with entire states
that are much larger than other districts;
compare the District of Montana with the Southern
District of New York. The position for which the
defendants contend would not cure the abuse that
concerns them. This is a problem for Congress to
solve if the problem is serious enough to warrant
solution.
The next and most troublesome issue concerns the
requirement of prompt judicial sealing of
recordings of intercepted communications. Because
tape recordings of conversations are powerful
evidence yet susceptible to tampering that may be
extremely difficult to discover, they must "be
done in such way as will protect the recording
from editing or other alterations." 18 U.S.C.
sec. 2518(8)(a). To this end, the recording must
be judicially sealed "immediately upon the
expiration of the period of the order, or
extensions thereof," id.; see United States v.
Ojeda Rios, supra, 495 U.S. at 263; United States
v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995);
United States v. Wong, 40 F.3d 1347, 1375 (2d
Cir. 1994), and if it is not sealed immediately
it can’t be used in evidence unless the
government offers a "satisfactory explanation"
for the delay in sealing. 18 U.S.C. sec.
2518(8)(a); United States v. Ojeda Rios, supra,
495 U.S. at 262-65; United States v. Plescia,
supra, 48 F.3d at 1463; United States v. Maxwell,
25 F.3d 1389, 1393 (8th Cir. 1994); United States
v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992).
The recordings of Hoover’s intercepted
conversations were not sealed until 32 days after
the expiration of the surveillance warrant. That
was much too long to qualify as an immediate
sealing, United States v. Williams, 124 F.3d 411,
429-30 (3d Cir. 1997); United States v.
Wilkinson, 53 F.3d 757, 759-60 (6th Cir. 1995);
United States v. Wong, supra, 40 F.3d at 1375;
United States v. Pitera, 5 F.3d 624, 627 (2d Cir.
1993), and so we must consider whether the
government’s explanation was adequate. The
warrant was to expire on January 2, 1994, but on
December 19 Hoover had discovered the concealed
microphone, interrupting the surveillance. The
government wanted to continue recording but with
a smaller microphone that Hoover would be less
likely to discover. It needed, or rather thought
it needed, access to the existing recordings in
order to compare them with recordings made with
the new microphone to make sure the new
recordings were acoustically no worse than the
old. The old ones had been so poor, United States
v. Parks, 100 F.3d 1300, 1302 (7th Cir. 1996),
that if the new were worse (as they eventually
turned out to be), there was no use installing
them in the visitors’ badges. Since the
government wanted to have access to the old tapes
for purposes of comparison, it didn’t want them
sealed.
If this were all there was to the government’s
explanation for failing to have the recordings
judicially sealed immediately, it wouldn’t be
enough. A satisfactory explanation is one that is
"objectively reasonable," United States v. Ojeda
Rios, supra, 495 U.S. at 266-67; United States v.
Quintero, 38 F.3d 1317, 1328-30 (3d Cir. 1994);
United States v. Carson, 969 F.2d 1480, 1497-98
(3d Cir. 1992); cf. Tuke v. United States, 76
F.3d 155, 156-57 (7th Cir. 1996), as well as
sincere. United States v. Quintero, supra, 38
F.3d at 1326-27; United States v. Vastola, 989
F.2d 1318, 1325 (3d Cir. 1993). Hoover’s
conversations had been recorded in triplicate, so
the government could have sealed one set of
recordings and used one of the others to compare
with recordings made with the new microphone. It
is surprising, to say the least, that the
Assistant U.S. Attorney in charge of the
investigation, a long-time senior member of the
U.S. Attorney’s office, Ronald Safer, was unaware
that there were duplicate recordings of the
intercepted conversations. (It would be reckless
not to record in duplicate or, as here,
triplicate, since it is so easy for recording
equipment to fail.) Such an oversight could not
be thought reasonable. One of the sets of tapes
could have been sealed, leaving two others for
purposes of comparison. And it is better, from
the standpoint of minimizing the risk of
tampering, to seal the tapes and then unseal them
as needed than to leave them unsealed for an
indefinite time (though the statutory permission
to leave the original tapes unsealed during any
extension of the original surveillance warrant,
18 U.S.C. sec. 2518(8)(a); United States v.
Carson, supra, 969 F.2d at 1487, makes the
requirement of sealing a rather porous
prophylactic against tampering). Nor is it
obvious why comparison was a necessary or useful
method for determining audibility. Recordings
made with the new microphone either were, or were
not, audible. Listening to the old tapes would
cast little if any light on the new.
But there is more. First and least, Safer
believed that he didn’t have to have the tapes
sealed as soon as the interception warrant
expired, because he anticipated seeking an
extension of the warrant within what he thought a
reasonable time (30 days) after its expiration.
He was confident that the new recording system
would be up and running by then and he thought
that during this period he would need the
original recordings for purposes of comparison.
When toward the end of this period he realized it
wouldn’t be ready in time, he had them sealed at
last. But thirty days is merely the maximum
period for which electronic surveillance can be
authorized, 18 U.S.C. sec. 2518(5); it has no
relevance to the period within which surveillance
recordings must be sealed. There is no basis in
the statute or the case law (nor was there when
Safer had to make the decision whether to have
the recordings sealed, which is the relevant
time, United States v. Ojeda Rios, supra, 495
U.S. at 266), for a rule that the government can
leave surveillance recordings unsealed for up to
30 days while it ponders whether to seek an
extension. The government must have a reason for
such a delay. It is true that months later, in
May, the government obtained a new authorization
to record Hoover’s conversations. But "an 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 for
purposes of section 2518(8)(a) if, but only if,
the new authorization was obtained as soon as
administratively practical or any delay is
satisfactorily explained, i.e., is shown to have
occurred without fault or bad faith on the part
of the government." United States v. Carson,
supra, 969 F.2d at 1488.
So large a mistake of law as thinking that one
has an automatic 30 days to seal surveillance
tapes, and so large a mistake of fact as not
realizing that multiple tapes were cut, are
difficult to describe as being "without fault."
Safer’s affidavit, the only evidence the
government tendered with regard to the
reasonableness of the delay, states that he
believed that "30 days was well within that
reasonable period of time given the nature of
this extension, i.e., the same place of
intercept, same criminal conduct, same
interceptees," but the affidavit gives no reason
for picking 30 days; nor is the fact that good
grounds existed for the extension a rational
basis for delay in seeking it--the opposite might
well be argued. The affidavit adds that Safer
"wanted to have the original tapes available for
comparison to tapes produced by the new device,"
but does not explain why this was necessary when
there were three sets of original tapes.
The government has an alternative ground for
affirmance on this point--that the recordings
didn’t have to be sealed because an order
extending the original interception order had not
yet expired. 18 U.S.C. sec. 2518(8)(a). This
ground was not presented to the district court,
but the government asks us to overlook the
forfeiture because the facts underlying the
argument are not contested. But we cannot do that
when the case is before us after a trial. We can
affirm a judgment on any ground that was not
waived or forfeited in the district court, unless
one of the conditions for relieving a party from
a waiver or forfeiture is present. Jenkins v.
Nelson, 157 F.3d 485, 497 (7th Cir. 1998); Door
Systems, Inc. v. Pro-Line Door Systems, Inc., 83
F.3d 169, 173-74 (7th Cir 1996); Singletary v.
Continental Illinois National Bank & Trust Co., 9
F.3d 1236, 1240 (7th Cir. 1993); cf. Rowe v.
Schreiber, 139 F.3d 1381, 1382 and n. 2 (11th
Cir. 1998). The qualification that we have
italicized is not always explicit, see, e.g.,
Massachusetts Mutual Life Ins. Co. v. Ludwig, 426
U.S. 479, 481 (1976) (per curiam), though we have
found only two cases in which it was explicitly
rejected (but without discussion). African
American Voting Rights Legal Defense Fund, Inc.
v. Villa, 54 F.3d 1345, 1356 (8th Cir. 1995);
International Ore & Fertilizer Corp. v. SGS
Control Services, Inc., 38 F.3d 1279, 1286 (2d
Cir. 1994). Plenty of other cases, it is true,
have broad language that might be thought to
imply the rejection of the qualification. E.g.,
Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th
Cir. 1995). But that language is probably
inadvertent, or influenced by the exceptions
built into waiver doctrine, such as the plain-
error doctrine, of which more shortly. The
qualification that the language of these cases
occludes (that the ground not have been waived or
forfeited in the district court) is easily
overlooked because a party is not required to
advance all its possible grounds in a motion for
judgment on the pleadings or summary judgment,
with the result that the failure to advance a
ground, and the resulting failure of the district
court to address it, do not work a forfeiture.
Door Systems, Inc. v. Pro-Line Door Systems,
Inc., supra, 83 F.3d at 173-74; cf. Curran v.
Kwon, 153 F.3d 481, 487 and n. 11 (7th Cir.
1998). But a ground not raised at trial is
forfeited and therefore cannot be used on appeal.
"[A] defendant can move to dismiss or for summary
judgment on fewer than all possible grounds
without waiving the others, . . . but if the case
goes to trial he cannot hold some of his grounds
in reserve for use should he lose on the grounds
he does present." Smith v. Richert, 35 F.3d 300,
305 (7th Cir. 1994).
Perhaps, though, it would be a plain error to
reject the government’s ground; and while it is
unusual for the government to be arguing plain
error in a criminal case, there is nothing to
prevent its doing so. United States v. Brown, 164
F.3d 518, 522 (10th Cir. 1998); United States v.
Zeigler, 19 F.3d 486, 494 (10th Cir. 1994);
United States v. Sprei, 145 F.3d 528, 533-34 (2d
Cir. 1998); United States v. Barajas-Nunez, 91
F.3d 826, 833-34 (6th Cir. 1996). (See also Fed.
R. Crim. P. 52(b), which draws no distinction
between the government and the defendant.) It is
true that the government has failed to argue
plain error to us; it has argued error, but has
failed to argue that the error was plain, not
realizing, apparently, that it had forfeited the
error in the district court and thus had to
invoke the plain-error rule to prevail. But when
an error is plain, the interests of justice
require the court, if it can, to notice the error
without prompting rather than to perpetrate an
unjust decision. Unhappily for the government,
the error is not plain; it is not an error at
all. For remember that the new authorization to
conduct surveillance of Hoover’s conversations
was not sought until May, and the previous order
had expired the previous January. Recordings
cannot be left unsealed indefinitely just because
months or years later the government is able to
convince a judge to allow the surveillance to
resume. Allowing such a hiatus would defeat the
purpose of the requirement of sealing. See United
States v. Ojeda Rios, supra, 495 U.S. at 263-64;
United States v. Carson, supra, 969 F.2d at 1488,
1497-98.
If the requirement is violated without
reasonable excuse, evidence obtained in violation
of it must be excluded, period; there is no
mitigation beyond what the excuse provision
itself allows. 18 U.S.C. sec. 2518(8)(a); United
States v. Ojeda Rios, supra, 495 U.S. at 260. The
harmless-error rule is applicable, but the
government does not and could not argue harmless
error here, since the Hoover conversations were
the linchpin of its case.
The government has one last string to its bow.
Although not in Safer’s affidavit, the government
argues in its brief to us that the real reason
for the delay was that it expected the new
bugging apparatus to be completed sooner.
Remember that Hoover discovered the original bug
on December 19, at which point the government had
two weeks to obtain either an extension or a
judicial seal. If on January 2 the government
reasonably expected the new bug to be completed
and in working condition within a few days, this
would be a reasonable basis for delaying the
seeking of an extension for a few days. At some
point it became clear that "a few days" were
going to stretch on indefinitely; and then the
government, having no immediate use for an
extension (which depended on the new apparatus),
did seek to have the recordings placed under
judicial seal. If the technicians kept assuring
the prosecutors that the bug was a day away from
completion, naturally the prosecutors would think
they could wait another day. As we say, this was
argued in the government’s brief but does not
appear in Safer’s affidavit--which doesn’t mean
it’s untrue, especially since it was one of the
reasons the district judge gave for allowing the
recordings of Hoover’s conversations to be
admitted into evidence; and the defendants do not
argue that the government waived the point in the
district court. There is no suggestion that the
government postponed the sealing of the tapes in
order to tamper with them, and in the absence of
any such suggestion we have no reason to doubt
that the delay did result from a mistake about
when the new bugging device would be available.
The defendants’ reply that Safer and the
technicians should have communicated with each
other more effectively, which is true; but the
failure of communication does not strike us, any
more than it struck the district judge, as so
wanton a blunder as not to constitute a (barely)
satisfactory explanation within the meaning of
the statute.
A few more issues require discussion. Defendant
Yates complains about the absence of his lawyer
from the instructions conference. Such a denial,
if it is deemed as Yates asks us to deem it an
abandonment by the lawyer of his client, leaving
the client without representation, rather than
merely a failure to come up to a minimum standard
of legal professionalism, would require reversal
irrespective of prejudice. Roe v. Flores-Ortega,
120 S. Ct. 1029, 1038-39 (2000); United States v.
Cronic, 466 U.S. 648, 658-60 (1984); United
States v. Morrison, 946 F.2d 484, 503 (7th Cir.
1991) (dictum); cf. Neder v. United States, 119
S. Ct. 1827, 1833 (1999); United States v.
Santos, 201 F.3d 953, 959-60 (7th Cir. 2000). But
in the particular setting of this case, with
multiple defendants and multiple counsel, we do
not think the lawyer’s missing one instructions
conference constituted abandonment. Yates was one
of twelve defendants. All the other defendants’
lawyers were present at the conference and with
one exception he is unable either to specify a
defense peculiar to him that might have warranted
a special instruction had his lawyer been there
to urge it on the judge or to indicate any
respect in which the other lawyers failed to
protect the interests common to all the
defendants including himself. With that
exception, he had virtual representation by the
other lawyers of a kind that is commonplace in
multidefendant criminal cases, as illustrated by
the rule that in such a case an objection by one
defendant’s lawyer preserves the objection for
the other defendants. E.g., United States v.
Gatling, 96 F.3d 1511, 1521 (D.C. Cir. 1996). The
exception has to do with Yates’s defense that he
had withdrawn from the gang in time to avoid
liability for the acts that were attributed to
him as a member of the conspiracy. That was his
defense alone and the lawyers for the other
defendants did not press it at the conference.
But there was a later instructions conference,
which, though abbreviated, gave Yates (by now
representing himself by his own choice) the
opportunity, which he took advantage of, to press
for such an instruction. A criminal defendant who
decides to represent himself will not be heard to
complain that he was denied the effective
assistance of counsel. Faretta v. California, 422
U.S. 806, 834-35 n. 46 (1975); United States v.
Chapman, 954 F.2d 1352, 1363 (7th Cir. 1992).
Several of the defendants press on us Richardson
v. United States, 119 S. Ct. 1707 (1999), which
was decided after the trial in this case and
holds that a conviction for participation in a
continuing criminal enterprise requires that the
jury agree unanimously on the specific acts that
are the predicate for such a conviction. Our
cases prior to Richardson imposed no such
requirement and so the judge didn’t give such an
instruction. The jury, however, found all three
defendants guilty of many more than three
predicate offenses relating to the drug
conspiracy. The jury thus unanimously agreed that
each of the defendants had committed three of the
predicate offenses with which he was charged,
showing that the omission of the instruction was
a harmless error. Lanier v. United States, No.
98-2689, 2000 WL 201527, at *5-6 (7th Cir. Feb.
9, 2000); Murr v. United States, 200 F.3d 895,
904-06 (6th Cir. 2000); United States v. Long,
190 F.3d 471, 476 n. 3 (6th Cir. 1999); United
States v. Escobar-de Jesus, 187 F.3d 148, 161-62
(1st Cir. 1999); compare United States v. Brown,
202 F.3d 691, 699-703 (4th Cir. 2000).
The only other issues that merit discussion
concern sentencing. First is whether Yates was
properly sentenced to life imprisonment for being
"one of several . . . principal administrators,
organizers, or leaders" of a continuing criminal
enterprise, namely the Gangster Disciples. 21
U.S.C. sec. 848(b)(1). Yates was a "governor,"
one of about ten, which put him two levels below
the top of the Disciples hierarchy. The top level
was occupied by Hoover and the second level by
the board of directors, for unlike the
conventional corporation the Disciples board
reported to its CEO rather than vice versa. We do
not know how large the board was (in fact there
were two boards, one for Disciples in prison and
the other for those at large, though we can
ignore this detail), and it rather strains the
ordinary meaning of the word "several" to
describe Yates as one of "several" administrators
of the enterprise. The government asks us to
count from the bottom up rather than from the top
down, pointing out that since the Disciples had
about 6,000 members during the period at issue,
Yates belonged to a relatively quite tiny layer
of top-level supervisors and the evidence is that
he had six regents and 411 rank and file
Disciples under his command.
The statute’s drafters probably did not envisage
such a large criminal enterprise, for the minimum
annual receipts of a continuing criminal
enterprise that are necessary to make a principal
administrator, organizer, or leader subject to
mandatory life imprisonment is $10 million, 21
U.S.C. sec. 848(b)(2)(B), which is less than a
tenth of the annual gross receipts that the judge
could and did attribute to the Gangster
Disciples. We think the literal meaning is not
strained overmuch by construing "several" in
relative rather than absolute terms, the better
to carry out the purpose behind the provision,
although we cannot find a case dealing with the
issue. Of course there are limits to the
relativity of "several." If we assume there were
30 GDs at Yates’s level or higher, that would be
one-half of one percent of the total number of
conspirators, and it would be distinctly odd to
think that a reference to "several" Americans
could be to 1,375,000 people; but we think
"several" will stretch to 30, bearing in mind the
statute’s objective.
Next is the vexing question, made urgent by the
Supreme Court’s recent decision in Jones v.
United States, 119 S. Ct. 1215 (1999), as well as
by dicta in Edwards v. United States, 523 U.S.
511, 515 (1998), and cases such as United States
v. Dale, 178 F.3d 429, 432-44 (6th Cir. 1999),
whether type and quantity of drugs are elements
of the federal drug offense that is created by 21
U.S.C. sec. 841 and so must be proved at trial
beyond a reasonable doubt, or are mere sentencing
factors to be determined by the judge, applying a
lower standard of proof, at the sentencing
hearing. Jones construed a federal carjacking
statute that appeared to make the infliction of
grave bodily injury in the course of a carjacking
a sentencing factor as making it an element of
the crime. It did so in order to avoid the
constitutional problem that would be presented if
Congress tried to skirt the requirement of proof
beyond a reasonable doubt and the right of trial
by jury in criminal cases by redefining elements
of a crime as sentencing factors. One can imagine
in the limit replacing the separate statutes for
assault and murder by a single statute in which
the violator would be punished by probation if he
committed an assault that caused no injury at all
and by death if the assault consisted in the
intentional killing of the victim.
The avoidance of the constitutional issue by
statutory construction is not available in the
case of section 841, because the division between
the elements of the crime and factors relating to
how severely to punish offenders is much clearer
than in the statute interpreted in Jones.
Subsection (a), captioned "Unlawful acts,"
defines the offense of distributing, etc. a
controlled (or counterfeit controlled) substance,
while subsection (b), captioned "Penalties,"
specifies how the "person who violates subsection
(a) . . . shall be sentenced"--namely more
severely depending on the type and quantity of
the drug. The defendants in this case were
convicted of distributing a variety of drugs,
including marijuana, the distribution of which
calls for a much lighter sentence in section
841(b) than other drugs, notably crack cocaine,
one of the major commodities sold by the Gangster
Disciples. It is apparent that Congress intended
the type and quantity of the drugs distributed by
a defendant convicted under section 841(a) to be
determined at sentencing, unlike the situation in
Jones, and Congress’s determination of the
appropriate allocation of decisional
responsibilities carries a presumption of
constitutionality.
We adhere to our decisions holding that the
allocation is constitutional. United States v.
Arango-Montoya, 61 F.3d 1331, 1338-39 (7th Cir.
1995) (per curiam); United States v. Trujillo,
959 F.2d 1377, 1381-84 (7th Cir. 1992); cf.
United States v. Edwards, 105 F.3d 1179, 1180
(7th Cir. 1997), aff’d on other grounds, 523 U.S.
511 (1998); see also United States v. Thomas, No.
98-1051, 2000 WL 228218, at *3 (2d Cir. Feb. 14,
2000) (per curiam); United States v. Swiney, 2000
WL 149457, at *8 n. 5 (6th Cir. Feb. 14, 2000);
United States v. Hester, 199 F.3d 1281, 1291-93
(11th Cir. 2000); United States v. Jones, 194
F.3d 1178, 1183-86 (10th Cir. 1999); United
States v. Williams, 194 F.3d 100, 104-07 (D.C.
Cir. 1999). We emphasize a reason that is
practical rather than traditional, although it
may explain the tradition. A glance at section
841(b) reveals numerous and minute gradations.
For example, a heavier punishment is prescribed
for distributing 50 or more grams of a mixture or
substance containing crack than for distributing
5 or more grams, 21 U.S.C. sec.sec. 841(b)(1)
(A)(iii), (B)(iii), and a heavier punishment for
distributing 5 or more grams than for
distributing fewer than 5 grams, sec.sec. 812
Schedule II, 841(b)(1)(C), even though the
differences among these quantities is slight
(there are about 28 grams to an ounce). If a jury
were required to determine whether the defendant
had distributed 3, 6, 49, or 52 grams of mixture
or substance containing crack, its attention
would be deflected from the question at once more
fundamental to culpability and more manageable by
a lay factfinder whether the defendant had
distributed a forbidden substance. Similar
problems would attend a requirement that the jury
discriminate among particular controlled
substances, such as powder and crack cocaine.
The defendants’ argument amounts to saying that
the federal sentencing guidelines must be
administered by juries, with the exception of the
criminal history provisions, which the defendants
concede, as they must, Jones v. United States,
supra, 119 S. Ct. at 1226-27, identify proper
sentencing considerations. But the guidelines are
too complicated to be applied by lay persons;
even lawyers and judges cannot apply them without
training and experience. The Constitution does
not require the impossible. The practical effect
of the defendants’ argument would be the
elimination of most gradations in criminal
punishment. We are reluctant to embark upon a
path that leads to such a dubious destination. We
grant that our position is less compelling when
the issue is the type rather than the amount of
the drug, but note that in this case, even if
type were a jury issue, the failure to instruct
the jury that it had to decide whether the
defendants were selling cocaine or marijuana
would be harmless, as the evidence is
overwhelming that it was the former. United
States v. Barnes, 158 F.3d 662, 668 (2d Cir.
1998). We add that the due process clause
protects defendants from being sentenced on the
basis of unreliable evidence, albeit it does not
give them all the protections that the
Constitution has been interpreted to give
criminal defendants at the guilt phase of their
trials.
Last we consider the government’s cross-appeal.
The district judge properly increased the offense
levels of four of the defendants--"regents," each
of whom supervised more than a hundred Gangster
Disciples--three steps under a provision of the
guidelines commanding such a punishment bonus for
managers or supervisors of a criminal activity
involving five or more participants. U.S.S.G.
sec. 3B1.1(b). But then he reduced their offense
levels two steps under sec. 3B1.2(b), which
provides for such a reduction for a minor
participant, defined as one "less culpable than
most other participants." Id., Application Note
3. The judge--who made this reduction though not
requested to do so by the defendants--considered
regents minor participants in relation to some of
the other defendants, who were governors, and to
some of the other members of the conspiracy, such
as Hoover and the members of his boards of
directors. The government argues that a section
3B1.1 sentencing bonus and a 3B1.2 sentencing
reduction are not possible in the same case,
pointing to an introductory comment to chapter 3
of the guidelines that describes these as
alternatives: "When an offense is committed by
more than one participant, sec.3B1.1 or sec.3B1.2
(or neither) may apply."
The argument was not made to the district judge,
but the government argues that his error was
plain. The government could, but does not, argue
that it should not have to show a plain error--
that because the judge made the reduction without
any forewarning, the government was surprised and
should not be held to have forfeited its
objection to the judge’s action. E.g., United
States v. Muzika, 986 F.2d 1050, 1055 (7th Cir.
1993); United States v. Alba, 933 F.2d 1117, 1120
(2d Cir. 1991). We think there was error here and
that it was plain, though the government goes too
far in arguing that there can never be a
situation in which a defendant could receive both
a punishment bonus for being a manager or
supervisor and a punishment discount for being a
minor participant. Section 3B1.2 does not say
that a manager or supervisor cannot be a minor
participant; all that is required is that he be
less culpable than most of the other
participants. In a case such as United States v.
Tsai, 954 F.2d 155, 166-67 (3d Cir. 1992),
involving a top-heavy conspiracy in which the
managers outnumbered the rank and file, it is
possible for one of the managers to be less
culpable than most of the participants though
more culpable than the (few) foot soldiers, and
then both adjustments would be possible. But the
present case involves a conspiracy with 6,000
participants, and since the defendants in
question were, as regents, members of a small
supervisory layer consisting of no more than 2
percent of the membership, they clearly were not
less culpable than "most" of the participants,
and so they were not entitled to the section
3B1.2 reduction. So clear is this that the
judge’s sentencing error must be deemed plain,
provided that the error is prejudicial. United
States v. Olano, 507 U.S. 725, 732-35 (1993). But
we think it was, as it is evident that the judge
would have sentenced these defendants more
heavily if he had not given them a minor-
participant discount. In the obverse situation,
where a criminal defendant establishes that the
judge by virtue of committing a clear error gave
him a heavier sentence, the error is deemed plain
and the defendant is ordered resentenced. E.g.,
United States v. Spears, 159 F.3d 1081, 1088 (7th
Cir. 1998); United States v. Szabo, 147 F.3d 559,
561-62 (7th Cir. 1998); United States v. Whiting,
28 F.3d 1296, 1310-12 (1st Cir. 1994).
The four regents must be resentenced; in
addition the government concedes that the
conspiracy convictions of three of the defendants
must be vacated in accordance with Rutledge v.
United States, 517 U.S. 292, 307 (1996). With
these modifications, the judgments are
Affirmed.
Diane P. Wood, Circuit Judge, concurring in part
and dissenting in part. This was a complicated
case, and the defendants individually and
collectively have raised a number of points that
require our serious consideration. I join my two
colleagues in concluding that nothing here
requires us to reverse the convictions returned
by the jury. Insofar as results are concerned, my
disagreement is confined to the disposition of
the government’s cross-appeal. On that single
part of the case, I have grave reservations about
the proposition that the government has the right
to invoke the plain error doctrine to avoid the
consequences of its own oversights. Even if it
does, I believe that the question of how the
familiar rules about obviousness of the error and
prejudice apply to the prosecutor is an
exceedingly difficult one. It calls for an answer
that is sensitive to the broader purposes of the
harmless error rule. In the cases of Harold
Jackson, Kevin Williams, Dion Lewis, and Jathel
Garrett (the four "regents" to whom the majority
refers), even if the district court made an
obvious error in conferring "minor participant"
status upon them under U.S.S.G. sec. 3B1.2,/1
that error did not sufficiently affect the
government’s "substantial rights," as the term is
used in both Fed. R. Cr. P. 52(b) and United
States v. Olano, 507 U.S. 725, 732 (1993), to
justify a reversal.
The majority suggests, ante at 19, that we
always find "prejudice" where mistakes during
criminal proceedings result in the misapplication
of the Guidelines and a longer sentence for a
defendant. I accept the proposition that extra
time in prison qualifies as prejudice for Rule
52(b) purposes under this court’s law, and that
it should have this consequence from the
perspective of the defendant. But this does not
answer the question whether the prosecutor’s
failure to win a few extra months inflicts
similar prejudice on the government. For one
thing, a mechanical comparison between the two
situations ignores the basic fact that Assistant
U.S. Attorneys do not serve prison time as a
result of error. More importantly, the
application of the plain error rule should be
related to the purpose behind this exception to
our normal rules of forfeiture and waiver--an
exception which is, as we have pointed out
before, "inconsistent with the premises of an
adversary system," United States v. Caputo, 978
F.2d 972, 974 (7th Cir. 1992). As Caputo put it,
"What could justify the anomaly in the criminal
sphere? It is the injustice of allowing the
conviction of an innocent person, or an unlawful
sentence imposed upon a guilty person, to stand."
Id. No such injustice occurs if the prosecutor
obtains a sentence that is only a year or two
less than the court would have imposed if the
prosecutor had been on her toes. I therefore
disagree with the majority’s conclusion that an
erroneous downward departure is merely the
reverse of what we see more typically--an
erroneous decision that has the effect of
increasing a sentence. It is the special
deprivation of liberty resulting from a criminal
sentence that justifies relieving a defendant of
the consequences of a forfeited objection.
Because no such deprivation occurs for the
government, I reject the simple analogy the
majority has drawn.
It is interesting to speculate about whether the
government can ever establish prejudice for Rule
52(b) purposes, but I have no need at this
juncture to rule out that possibility absolutely.
There may be unusual circumstances in which an
error that benefits a defendant may be so severe
that it "seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings." United States v. Young, 470 U.S. 1,
15 (1985), quoting United States v. Atkinson, 297
U.S. 157, 160 (1936). This court adopted that
formulation in United States v. Durrive, 4 F.3d
548, 551 (7th Cir. 1993), to govern collateral
attacks on sentences. It reflects the fact that
collateral attack is normally reserved for only
the gravest of mistakes--those of constitutional
dimension or those that cast doubt on the
integrity of the verdict, and thus implicate both
the individual defendant and the public interest
more broadly.
In all criminal cases, the public interest is
what the government represents. As appellant, the
government here is now seeking to be relieved of
the consequences of its forfeiture of a point at
sentencing. If this relief is available to it at
all, it should be granted only where the error
was plain and it had a serious effect on the
fairness, integrity, or public reputation of
judicial proceedings. One example of such an
error might be the situation the Sixth Circuit
considered in United States v. Barajas-Nunez, 91
F.3d 826 (6th Cir. 1996). There, the court
considered an erroneous downward departure that
resulted in a sentence that was only eight
months, instead of more than 57, as the correct
Guidelines range prescribed. Id. at 833. The
court concluded that such an extreme departure
would "fly in the face of one of the primary
purposes of the sentencing guidelines--the
elimination of disparities in sentencing." Id. In
our case, the district court’s erroneous
application of section 3B1.2 resulted in an
offense level of 36 rather than 38, only slightly
shortening the defendants’ already decades-long
sentences. There is no chance that this mistake,
with its minimal sentencing consequences, will
prompt the public to look askance upon the
criminal justice system. Compare Durrive, where a
similar discrepancy was deemed insufficient to
meet the relevant standard for collateral
attacks. I therefore respectfully dissent from
the court’s disposition of the government’s
cross-appeal.
/1 For the record, I am not at all convinced that
the failure of the Assistant United States
Attorney to object was such a clear mistake that
the court had a duty to notice the problem on its
own. For purposes of this dissent, however, I am
not taking issue with that part of the majority’s
analysis.