The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-3052, 99-3677, 99-3937 & 00-1045
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JARRODE E. PHILLIPS, also known as JAKE,
also known as TRIFE, also known as
TRIFLING;
FRANK E. STORK; LAMAR TAYLOR, also known
as BULLET; and JOHN S. WAFFORD, also known
as J. HENDERSON, also known as VIETNAM,
Defendants-Appellants.
Appeals from the United States District
Court
for the Northern District of Indiana,
South Bend Division.
No. 3:98 CR 67--Robert L. Miller, Jr.,
Judge.
Argued May 31, 2000--Decided February 1, 2001
Before FLAUM, Chief Judge, and BAUER and
HARLINGTON WOOD, JR., Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge.
Following jury trials, defendants-
appellants were convicted on numerous
counts relating to their involvement with
the Dawg Life street gang in South Bend,
Indiana, and now appeal.
I. BACKGROUND
On April 19, 1999, after a three-week
trial, a jury found three of the
defendants guilty as follows: Phillips of
maintaining a place for the purpose of
manufacturing, distributing, or using a
controlled substance, relating to the
crack house at 303 LaPorte Street and the
crack house at 1115 East Indiana Street,
and possessing firearms as a felon; Stork
of committing a violent crime in aid of
racketeering in violation of the
Racketeering Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C.
sec.sec. 1961-68, and use of a firearm
during a crime of violence; and Taylor of
committing a violent crime in aid of
racketeering activity in violation of
RICO, using a firearm in relation to a
violent crime, and helping to maintain a
crack house at 1115 East Indiana Street.
On October 13, 1999, after a separate
two-day jury trial, Wafford was convicted
of committing a violent crime in aid of
racketeering in violation of RICO,
possessing a firearm after having been
convicted of a felony, and using a
firearm during a crime of violence.
Because both trials contained much of
the same testimony and evidence, the
background information from the two
trials is presented together. As several
of the issues concern the sufficiency of
the evidence, the facts are set forth in
detail.
Testimony showed that Dawg Life began in
the early 1990s as the Southeast Side
Dogs street gang, operating in specific
territory on the southeast side of South
Bend, Indiana. The gang was involved in
the sale of illegal drugs, particularly
cocaine, both on the street and from
certain gang-operated crack houses. The
price paid to acquirecocaine depended on
the amount the member could sell as well
as his rank in the gang. The more cocaine
a member sold, the lower the price he
paid. Certain crack houses were
controlled by Dawg Life, with only
members allowed to sell drugs from the
house.
The lowest-ranking members of Dawg Life
were referred to as "Little Locs," with
"G. Locs" ("Gangsta Loc") being the next
ascending rank. The highest-ranking
members were known as "O.G.s" ("Original
Gangsta"). There were identifying
handshakes for each rank within the gang.
The higher-ranking members received more
privileges. Lower-ranking members went to
higher-ranking members for drugs in order
to make money. One of the Little Locs
testified that Wafford, an O.G., had
suggested the Little Locs pool their
money, which they then gave to Wafford
until they had a greater amount to
purchase cocaine based on the fact that
the price was incrementally less when
purchased in greater quantities.
Like other gangs, Dawg Life used hand
signs to identify themselves as members
and to differentiate themselves not only
from other gangs but from friendly
subgroups which developed within the
gang. Two subgroups within Dawg Life were
the Dawgy Style Mafia ("D.S.M.") and the
Rush ("Ruthless Unstoppable Street
Hustlers") Street Gangstas ("R.S.G.").
Phillips and Stork were G. Locs in the
R.S.G. Taylor was a G. Loc in the D.S.M.
Wafford was an O.G. in the D.S.M. Members
also identified themselves by wearing the
Dawg Life colors of brown and black (the
colors of a Rottweiler or Doberman
pinscher).
Dawg Life members advanced in rank by
committing acts of violence, which
increased the member’s reputation within
the gang and correspondingly increased
the gang’s reputation within the
community. Members would "put in work" in
order to advance. One member testified
that "putting in work" meant "shooting,
robbing, whatever," and that he was
encouraged to shoot a rival gang member
because it "might get you a higher rank."
One member’s brother moved up a rank when
he shot someone. Another member stated
that an act of violence like a shooting
"increases the [member’s] position in the
gang and they recognize and respect him
more." Members could be voted out of the
gang if they were not deemed sufficiently
violent. One of the witnesses testified
he had been voted out of Dawg Life
because he "wasn’t ready for the funk,"
defining funk to mean, "like a war or
something."
Retaliation also gained a member respect
and advancement. Members of Dawg Life
lived by the saying "Retaliation is a
Must." The gang produced and distributed
CDs and tapes to members only, which
contained a song entitled "Retaliation is
a Must."
Dawg Life also used hand signs to show
disrespect to rival gangs or any non-gang
persons. One of the threatening signs
flashed was O.B.K., meaning "Off Brand
Killer." Anyone not from the southeast
side was labeled "off brand," and Dawg
Life members flashed the sign to warn
anyone "off brand" of what the gang might
do to them. One witness testified that he
was walking with about five friends when
two black males approached them and threw
the O.B.K. sign, which, the witness said,
was like a warning "right before an enemy
about to attack." When one of the black
males pulled a handgun and began firing,
the witness was shot in the ankle. The
same witness was also physically
assaulted on another occasion by males
who identified themselves as members of
Dawg Life.
The gang also used personalized graffiti
on rival gangs’ territory to show
disrespect, such as O.B.K. and "Dawg Life
4 Life."/1 It was not uncommon for Dawg
Life and rival gangs to exchange gunfire.
Dawg Life members responded violently
when rivals spoke badly of them or showed
disrespect. Members would either beat up
or shoot rivals. Dawg Life members would
also assault any non-member who attempted
to sell crack from one of their houses.
All members of Dawg Life attended
"meeting[s] with a purpose" (clarified as
"not just a party"). Discussions at these
meetings included obtaining money to
purchase cocaine, what would be done to
anyone selling cocaine who was not a Dawg
Life member, driving out rival drug
dealers who were selling in their
southeast territory, and the use of
particular weapons in shootings.
Stork Shooting of Charlotte Flemming
On August 29, 1997, at approximately
11:30 a.m., a mail carrier was near a
home at 1143 Huey Street, which is
located on the north side of South Bend
within the territory of the Huey Street
Posse, one of Dawg Life’s rivals. A
police officer testified that 1143 Huey
was the residence of Leroy and Charles
Humbles, members of the Vice Lords/Huey
Street Posse gang.
The mailman saw a stranger in the front
yard of the home fire several shots in a
north-northeasterly direction. Almost
immediately after, he saw a car coming
from the north corner slow to a near stop
in front of 1143 Huey. He then heard two
shots being fired and saw the car speed
away. One witness stated that he believed
the shots were fired from the passenger
side of the car. The mailman provided
police with a detailed description of the
car and a partial license plate number.
Moments before the shooting, a high
school student in the area saw someone in
the car flash the O.B.K. sign. This
student had previously been shot by a
Dawg Life member who first flashed the
O.B.K. sign at him. The student also
recognized the car as belonging to a Dawg
Life member. The car was easily
identifiable because the body was black
with gold rims and had a visible blue
primer spot on one door.
Within minutes after the shooting,
police saw a car matching the description
given by the mailman and began following.
After a chase, the car eventually stopped
and four occupants fled on foot. Police
apprehended two of the occupants, one of
whom exited from the front passenger side
and was identified as Frank Stork. A .44
caliber,-semi-automatic handgun
manufactured in Israel, was recovered
from the car. Casings found in the car
and on Huey Street were both fired from
the .44. Stork, who identified himself as
a Dawg Life member, eventually admitted
that he had fired the handgun in the
direction of the house. He stated that he
had heard shots fired and then fired his
gun. Dawg Life held a meeting shortly
after the shooting and testimony was
given that at the meeting Stork discussed
the type of gun used for the shooting and
the problems he had with firing the gun.
Charlotte Flemming, age 4, was inside
the home at 1143 Huey and was injured by
metal fragments from the aluminum storm
door striking her face when shots
penetrated into the house. Two fragments
imbedded in her face, one in her cheek
and the other above her eye. The
fragments were surgically removed but she
was left with two permanent scars.
Taylor’s Shooting of David Carrell
David Carrell lived on the southeast
side of South Bend in Dawg Life territory
and testified that he had never been a
member of any gang. Carrell had several
physical altercations with various gang
members due to his refusal to join and
was often flashed the O.B.K. sign.
Carrell was conversing with Taylor’s
cousin when Taylor interrupted and began
arguing with Carrell. Taylor repeatedly
referred to Dawg Life and told Carrell,
"[T]his is Dawg Life," and "If you ain’t
down with the life, you ain’t shit."
Carrell responded, "Well, whatever, I
don’t care what you is." Taylor’s final
comment was, "I strike when I’m
provoked." However, Taylor’s cousin
testified at trial that he and Taylor
were having a conversation when Carrell
interrupted them and threw a rival gang
sign at them.
Less than two weeks later, when Carrell
was returning from the late shift at
work, he encountered Taylor after
midnight outside of Carrell’s home. When
Carrell saw Taylor point a gun at him, he
ran. Taylor shot and wounded Carrell as
he fled. Taylor’s cousin testified at
trial that he saw Taylor sleeping at his
(the cousin’s) house on the night of the
shooting. However, the cousin had
previously told police on the night of
the shooting that he had not seen Taylor
that night. Both the officer called to
the scene and Carrell thought he was
fatally wounded. Carrell was transported
to the hospital by paramedics. Carrell
had surgery and had to wear a colostomy
bag for six months. Carrell has since had
further corrective surgery.
Wafford’s Shooting at David Carrell
Carrell, after having been shot by
Taylor in July 1998, was again the
subject of another Dawg Life shooting a
month later on August 28, 1998. Witnesses
identified the house at 1414 South
Fellows as a Dawg Life crack house.
Carrell lived at his mother’s home and
spent quite a bit of time at his
grandmother’s house, which were only two
houses apart and located near the
intersection of Fellows and Haney, a few
houses away from 1414 South Fellows.
On the day in question, Carrell’s
younger brother overheard a conversation
with Wafford and another gang member that
Carrell’s mother was "snitching." One of
the gang members then stated, "You know
what we got to do." Carrell’s brother
found Carrell at his grandmother’s house
and reported the conversation about their
mother. Carrell took a handgun and, with
his brother and cousin, went to his
mother’s home. She was standing on the
porch talking to a police officer. As he
approached his mother’s house, Carrell
heard several shots and saw what he
believed to be gunfire coming from 1414
South Fellows. Numerous spent casings and
several live rounds were later recovered
in and around 1414 South Fellows.
When Carrell ducked for cover, he fell
and injured himself. After the shots
stopped, Carrell pulled out his gun and
ran towards his mother’s house. Although
the police officer on the porch had his
gun drawn at Carrell, the officer
testified that Carrell was visible to him
at all times and he never saw Carrell
fire a shot. The officer believed the
shots had come from 1414 South Fellows,
which he knew was a suspected Dawg Life
crack house. The officer, seeing Carrell
with a gun and blood on him, yelled at
him to drop his weapon. Carrell threw the
gun down and collapsed. He was
transported to the hospital.
Later that same day, a Dawg Life member
told police that he was with Wafford, his
cousin, that day and that Wafford was the
shooter. Wafford was known to the police
as he had recently stopped a patrol
officer, introduced himself, told the
officer that he knew who the officer was
and asked him to "lighten up on everybody
in the neighborhood." Wafford also told
the officer he was an O.G., with Little
Locs working for him, and asked the
officer to lighten up on the Little Locs.
Wafford’s cousin, who accepted a plea
bargain, provided police with additional
information, including the location of
what he claimed was the weapon used in
the shooting. The police obtained a
search warrant and retrieved a Chinese-
manufactured Norinco SKS assault rifle.
No usable prints were recovered from the
rifle. Because the ammunition casings
were steel, which generally do not leave
ejector marks when discharged, the police
did not test to match the casings to the
rifle as there was only a 10 percent
probability of producing any valid
results.
Dawg Life Crack House at 303 LaPorte
Street
On January 31, 1996, the South Bend
police served a search warrant at 303
LaPorte Street. During the two weeks
prior to the search, officers spent
fifteen to twenty hours of surveillance
on the house, watching people enter and
leave after brief visits. During this
time period, police observed Jarrode
Phillips standing outside of the house
throughout the week of the raid.
Phillips, a convicted felon, was known to
police as a Dawg Life member. On January
25 and 30, undercover police officers
made controlled buys of crack cocaine
from the house.
Upon entering the house on January 31 at
6:20 a.m., police found Wafford,
Phillips, four other gang members, and a
woman inside. Phillips was sitting next
to another Dawg Life member on a sofa.
Underneath the sofa cushion between the
two men, police found a .40 caliber
Taurus semi-automatic handgun
manufactured in Brazil. Both men had
immediate access to the weapon. In
addition, approximately fourteen white
rocks (later tested and found to be crack
cocaine), weighing over 33.61 grams, were
found on the floor behind the sofa where
Phillips was sitting. The police also
discovered over $5,000 in cash, baggies,
electronic scales, a cellular phone, a
pager on Phillips, and Dawg Life written
material. Along with ammunition, other
weapons found included an assault rifle,
a loaded Smith & Wesson revolver
manufactured in Massachusetts, a Lorcin
semi-automatic handgun manufactured in
California, two shotguns, and a Mossberg
sawed-off shotgun manufactured in
Connecticut. Each of the seized weapons
was found to have previously traveled in
interstate commerce. The gang members
arrested at the house sang Dawg Life rap
songs while the police conducted the
search. Phillips also stated to the
police, "Dawg Life 4 Life."
Dawg Life Crack House at 1115 East
Indiana Street
On April 30, 1998, South Bend police
officers raided a crack house at 1115
East Indiana Street. The house was
identified at trial by a Dawg Life member
as a Dawg Life crack house. Police had
made controlled purchases of crack
cocaine at the house on April 23 and 29.
Prior to the raid, police had observed
Lamar Taylor standing in front of the
house and repeatedly walking up to cars,
having a brief conversation, then
returning to the house as the cars drove
off.
One gang member testified that Phillips
lived at 1115 East Indiana; he had his
own room there, slept there, had his
girlfriend visit him there, and kept his
clothes at the house. Both Phillips and
Taylor were present when crack sales took
place in the house. Phillips and Taylor
were inside when the police arrived.
Officers found weapons, ammunition,
narcotics, scales, baggies, and 22.63
grams of crack cocaine, along with Dawg
Life writings. After his arrest, police
observed that Phillips had a "Dawg or
Die" tattoo.
A police informant who had been at the
house daily for approximately one month
prior to the raid testified that only
members of the Dawg Life gang were
permitted to sell from the house. If an
outsider attempted to sell at or near the
house, gang members would beat them up
and rob the outsider of his crack and his
money.
II. ANALYSIS
A. Severance
Phillips was the only defendant not
charged with committing a violent crime
in aid of racketeering. He argues that a
joint trial with his three co-defendants,
Frank Stork, Armond Stork (Frank’s
brother), and Lamar Taylor, who were
charged with crimes of violence in aid of
racketeering involving the use of a
dangerous weapon, prejudiced the jury
against him and denied him a fair and
impartial trial. His pretrial motion to
sever and another motion made after the
government began to present its case were
both denied. However, after evidence
against his co-defendants had been
presented but immediately prior to the
prosecution’s case-in-chief against
Phillips, the governmentwithdrew its
objection to severance but notified
Phillips that if the trials were severed,
"we may seek additional charges against
Mr. Phillips." Phillips’ counsel
requested additional time to determine
whether or not to renew the request as
she understood that failure to request
severance at that point could mean waiver
to any claims of error. Phillips decided
to remain as a co-defendant. Phillips now
argues that the district court abused its
discretion in failing to sever under
Fed.R.Crim.P. 8(b) or 14.
"A motion for severance is typically
waived if it is not renewed at the close
of evidence, primarily because it is then
that any prejudice which may have
resulted from the joint trial would be
ascertainable." United States v. Caudill,
915 F.2d 294, 298 (7th Cir. 1990)
(internal quotations and citation
omitted). We noted that, for whatever
reason the defendant failed to renew his
motion to sever, "[w]e cannot countenance
a system in which a defendant first tries
to see whether he can get an acquittal in
a joint trial, and then when he is
convicted renews his motion to sever so
that he can have another crack at a
jury." United States v. Taglia, 922 F.2d
413, 417 (7th Cir. 1991).
Phillips asserts in his brief that he
did not renew his motion for severance
because "he should not have been put in
that position in the first place," and
that "renewing at the end of the
government’s case would have been
futile." However, he fails to
substantiate how his renewal would have
been futile, particularly given the fact
that earlier the district court had
specifically inquired if Phillips wished
to renew his motion.
Even if Phillips had not waived the
issue, his assertion that he was entitled
to a separate trial is without merit. In
asserting misjoinder under Rule 8(b),/2
there is a presumption that participants
in a conspiracy or other criminal schemes
should be tried together, "not only to
economize on judicial and prosecutorial
resources but also to give the jury a
fuller picture of the scheme." Taglia,
922 F.2d at 416-17 (citation omitted).
Phillips had admitted he was a member of
Dawg Life, and evidence further showed
that all of his co-defendants were or had
been members of Dawg Life. There was also
evidence that all of the defendants were
involved in either the distribution of or
dealing in illegal drugs. Phillips had
been arrested along with Taylor at one of
the crack houses. There was no error
under Rule 8(b).
On a motion for severance under Rule
14,/3 we give great deference to the
district court, which is best able to
assess the benefits and hazards of a
joint trial. Caudill, 915 F. 2d at 298
(citation omitted). A district court’s
denial of severance will not be disturbed
absent an abuse of discretion. United
States v. Marshall, 75 F.3d 1097, 1105
(7th Cir. 1996). A defendant must
establish that he suffered "actual
prejudice" resulting from the denial of
severance. United States v. Pulido, 69
F.3d 192, 207 (7th Cir. 1995) (listing
cases). Under the "actual prejudice"
standard, a defendant must demonstrate
that absent the severance, he was unable
to obtain a fair trial. United States v.
Magana, 118 F.3d 1173, 1186 (7th Cir.
1997) (citation omitted).
The two Storks and Taylor were charged
with a violent crime in aid of
racketeering because the government had
evidence of those three allegedly having
been involved in shootings. There was
evidence that all four defendants were
involved in an enterprise which dealt in
illegal drugs. The district court
directed the prosecuting attorneys not to
ask any questions of witnesses testifying
against the Storks and Taylor that might
elicit testimony implicating Phillips and
scrupulously reiterated a limiting
instruction/4 to remind the jury the
testimony could not be used in
considering Phillips’ charges. See
Marshall, 75 F.3d at 1105 (citing United
States v. Stillo, 57 F.3d 553, 557 (7th
Cir. 1995) (stating that a criminal
defendant "must rebut the dual
presumptions that a jury will (1) capably
sort through the evidence and (2) follow
limiting instructions from the court to
consider each defendant separately.")).
Furthermore, in instructing the jury on
Phillips’ charges, the district court
again gave a limiting instruction:
Even though the defendants are being
tried together, you must give each of
them separate consideration. In doing
this, you must analyze what the evidence
shows about each defendant, leaving out
of consideration any evidence that was
admitted solely against some other
defendant or defendants. Each defendant
is entitled to have his case decided on
the evidence and the law that applies to
that defendant.
See Magana, 118 F.3d at 1188. Under
circumstances such as these, the Supreme
Court noted that our trial system "relies
upon the ability of a jury to follow
instructions." Opper v. United States,
348 U.S. 84, 95 (1954).
We believe the jury carefully considered
the evidence with respect to the
individual counts, finding certain
defendants not guilty on particular
counts but guilty on other counts and
acquitting Armond Stork. See Magana, 118
F.3d at 1189. Phillips has not shown any
actual prejudice. We agree with the
district court’s ruling and find there
was no abuse of discretion in denying the
motion for severance.
Phillips also argues that if he has
waived the severance issue, he is now
entitled to plain error review under
Fed.R. Crim.P. 52(b), which provides,
"Plain errors or defects affecting
substantial rights may be noticed
although they were not brought to the
attention of the court." He maintains,
"If he had not been on trial with these
other gang members . . . he probably
would have won his freedom."
Rule 52(b) gives the courts of appeals
limited authority to correct errors that
a party did not bring to the attention of
the district court. United States v.
Olano, 507 U.S. 725, 730 (1993). In
Olano, the Supreme Court clarified the
standard for Rule 52(b) "plain error"
review by courts of appeal. The Court
distinguished between "forfeited" errors
that simply were not timely raised in
district court and "waived" errors that
were intentionally abandoned or
relinquished. Id. at 733 ("Whereas
forfeiture is the failure to make the
timely assertion of a right, waiver is
the ’intentional relinquishment or
abandonment of a known right.’") (quoting
Johnson v. Zerbst, 304 U.S. 458, 464
(1938)).
The Court noted that there must be
"error" that is "plain" and that
"affect[s] substantial rights." Olano,
507 U.S. at 732. However, the Court
stated, "Deviation from a legal rule is
’error’ unless the rule has been waived."
Id. at 733. Where the legal rule is
waivable, a defendant who enters a valid
waiver to that right has no claim of
"error." Id.; United States v. Penny, 60
F.3d 1257, 1261 (7th Cir. 1995) ("When a
right is waived, it is not reviewable,
even for plain error."); see United
States v. Griffin, 84 F.3d 912, 924 (7th
Cir. 1996) ("intentional relinquishment
or abandonment of a known right precludes
[appellate review]."). The Supreme Court
has held the right to trial is waivable.
See Olano, 507 U.S. at 733. We have also
held that a defendant may waive the right
to counsel free from conflict of
interest. See Gomez v. Ahitow, 29 F.3d
1128, 1133 (7th Cir. 1994). As the Court
noted in Olano, consideration of whether
a right is waivable, whether the
defendant participated in the waiver, and
whether the defendant’s choice is
informed or voluntary, is taken into
account. 507 U.S. at 733. In this case,
after a recess to confer with his lawyer,
Phillips’ attorney stated that "he’s had
sufficient time and discussion to make
the decision," and Phillips himself
agreed that he chose to remain in the
case rather than seek severance. His
statement constituted a personal,
informed, and voluntary waiver.
Therefore, the "error" was
"extinguished." See id. Phillips’ waiver
precludes him from raising the issue on
appeal. See Griffin, 84 F.3d at 924
(concluding defendant’s waiver
extinguished his error); United States v.
Lakich, 23 F.3d 1203, 1207 (7th Cir.
1994) ("[I]f there has been a valid
waiver, there is no ’error’ for us to
correct."). Phillips is not entitled to
raise on appeal the very matter that he
told the district court he did not want
to raise. See United States v. Davis, 127
F.3d 335, 339 (7th Cir. 1997).
B. Jury Selection
Phillips and Taylor objected to the jury
array on the ground that none of the
approximately forty-eight prospective
jurors were African American or Hispanic.
The Jury Selection and Service Act of
1968, 28 U.S.C. sec.sec. 1861-78 (1982)
("the Act"), provides, "No citizen shall
be excluded from service as a grand or
petit juror in the district courts of the
United States on account of race, color,
religion, sex, national origin, or
economic status." 28 U.S.C. sec. 1862. A
statutory challenge must be made by
motion "before the voir dire examination
begins, or within seven days after the
defendant discovered or could have
discovered, by the exercise of diligence,
the grounds therefor, whichever is
earlier." 28 U.S.C. sec. 1867(a). The
motion must also contain "a sworn
statement of facts which, if true, would
constitute a substantial failure to
comply with the provisions of this title
. . . ." 28 U.S.C. sec. 1867(d).
Technically, appellants failed to
satisfy both of these procedural
prerequisites for a statutory challenge
to the jury array. The motion was made
orally approximately three-quarters of
the way into voir dire. After having
interviewed thirty-seven members of the
jury panel, with a final group of ten to
be brought in, Stork’s attorney raised
the issue, in which all defense attorneys
joined, stating that there were "some
serious concerns about the composition of
the jury panel." Defendants argue that
because the final ten members of the jury
panel were "saved back" (not having been
brought into the courtroom until the
afternoon session), it was not possible
to make a sec. 1867 motion until seeing
that none of the ten final members were
African American or Hispanic. The
defendants could have queried the
district court about the composition as
soon as they saw no African Americans or
Hispanics in the first group of venire
members; as the statute specifies, the
challenge must be made "before the voir
dire examination begins . . . ." Although
"saving back" a portion of the panel may
be an unusual practice, we cannot say the
defendants were not alerted to the lack
of African Americans or Hispanics with
the first group of thirty-seven venire
persons.
The second requirement, that of a "sworn
statement," was not satisfied as the
objections consisted only of counsels’
discussion before the judge about the
fact that no blacks or Hispanics appeared
in the jury pool. Counsel then presented
copies of the 1990 U.S. Census Data for
each of the eleven counties which
comprise the South BendDivision of the
Northern District of Indiana, and argued
that the non-white population was 8
percent of the total population for the
entire South Bend Division. However,
counsel specifically challenged the fact
that there were no African Americans or
Hispanics represented.
Based on the total population of
782,401, the total black population, as
indicated in the census material, was
42,847, or approximately 5.4 percent of
the total population. There was no
separate identification for Hispanic or
Spanish descent on the census, but an
inclusive category of "Other Race." The
"Other Race" population was 5,566, or .7
percent. Given the fact that we cannot
presume the entire "Other Race" category
is comprised exclusively of Hispanics,
that percentage must be even less.
However, having no way to determine the
breakdown, for the sake of argument, we
will use the entire .7 percent figure,
resulting in 6.1 percent, not 8 percent
as defendants stated.
Also included in counsel’s presentation
was a copy of the Amended Jury Selection
Plan (1997) for the Northern District of
Indiana. The Amended Plan states that
names are selected at random from the
general election voter registration
lists, or, in those counties which do not
maintain voter registration lists, from
the lists of actual voters. Prior to the
Jury Selection Act, most federal
districts used the "key man" system,
where persons believed to have extensive
contacts in the community would suggest
names of prospective jurors and the
qualified jury wheel would be made up
from those names. S. Rep. No. 891, at 10
(1967). This system was thought to foster
discrimination. The Act substituted a
random selection method from the district
or division registered voter or actual
voter lists. 28 U.S.C. sec. 1863 (b)(2).
As the committee reports state:
If the voter lists are used and
supplemented where necessary, and if the
procedures outlined in the bill are
otherwise rigorously followed, it is no
departure from the standards of the
legislation that the qualified jury
wheel, the venire or array, or the jury
itself, may not reflect a community cross
section. The act . . . does not require
that at any stage beyond the initial
source list the selection process shall
produce groups that accurately mirror
community makeup. Thus, no challenge lies
on that basis.
Id. at 17; H.R. Rep. No. 1076, at 5
(1968), reprinted in 1968 U.S.C.C.A.N.
1792, 1794; see also United States v.
Koliboski, 732 F.2d 1328, 1331 (7th Cir.
1984) (holding that voter lists are
proper source from which to draw a pool
of jurors).
The Amended Plan clearly follows the
process and procedures recommended by the
Act. Defendants’ one-page motion, filed
on March 30, 1999, stated that of the
forty-eight potential jurors, there was
not a single African American or
Hispanic. Although accompanied by two
exhibits (the 1990 Census Data and the
Amended Jury Selection Plan), the motion
did not include a sworn statement which
"if true, would constitute a substantial
failure to comply with the provisions of
[the Jury Selection Act]."/5 In fact,
the Amended Plan only served to show the
district’s compliance with provisions and
procedures of the Act. Defendants’
failure to make a motion in a timely
manner and failure to provide evidence,
other than oral observations as to the
lack of statistical proportionality,
precluded a statutory challenge. 28
U.S.C. sec. 1867(e); see United States v.
Grose, 525 F.2d 1115, 1119 (7th Cir.
1975). The district court did not err in
denying the untimely and substantively
inadequate motion. Having failed to
comply with thestatutory requirements of
sec. 1867(d), the defendants were not
entitled to an evidentiary hearing
challenging the district’s jury selection
process. United States v. Percival, 756
F.2d 600, 615 (7th Cir. 1985).
Phillips and Taylor also challenged the
jury composition under the Sixth
Amendment, which forbids racial
discrimination in the selection of
jurors. See Taylor v. Louisiana, 419 U.S.
522, 530 (1975). Whether a defendant has
been denied the right to a jury selected
from a fair cross-section of the
community is a mixed question of law and
fact, which we review de novo. United
States v. Raszkiewicz, 169 F.3d 459, 462
(7th Cir. 1999). While the right to a
jury trial guarantees the criminal
defendant a fair trial by a panel of
impartial, "indifferent" jurors, Irwin v.
Dowd, 366 U.S. 717, 722 (1961), there is
no requirement that a venire or jury
mirror the general population. United
States v. Duff, 76 F.3d 122, 124 (7th
Cir. 1996). "Defendants are not entitled
to a jury of any particular composition."
Taylor, 419 U.S. at 538. Therefore, "the
makeup of any given venire is not
significant, provided all rules for
selection have been observed." Duff, 76
F.3d at 125 (citing Holland v. Illinois,
493 U.S. 474, 482-83 (1990)).
To make a prima facie case that the fair
cross-section requirement has been
violated, a defendant must show that: (1)
the group allegedly excluded is a
distinctive part of the community, (2)
the representation of this group in
venires from which juries are selected is
not fair and reasonable in relation to
the number of such persons in the
community, and (3) this
underrepresentation is due to systematic
exclusion of the group in the jury
selection process. Johnson v. McCaughtry,
92 F.3d 585, 590 (7th Cir. 1996) (citing
Duren v. Missouri, 439 U.S. 357, 364
(1979)). There is no dispute that African
Americans or Hispanics may constitute a
"distinctive part of the community,"
thereby satisfying the first prong. As to
the second prong, defendants argued the
jury pool failed to reflect at least 8
percent of the community (although the
correct percentage, as discussed
previously, was something less than 6.1
percent). In either case, we have noted
that "a discrepancy of less than ten
percent alone is not enough to
demonstrate unfair or unreasonable
representation of blacks on the venire."
United States v. Ashley, 54 F.3d 311, 314
(7th Cir. 1995) (citation omitted).
Therefore, defendants fail to satisfy the
second requirement.
Defendants also fail to make a showing
under the third prong that there was a
systematic exclusion of African Americans
and Hispanics. See Swain v. Alabama, 380
U.S. 202, 203-04 (1965). Defendants
presented evidence of the district’s
compliance with the proper methods of
jury selection yet failed to provide a
factual basis for a finding of improper
methods of jury selection. "The mere
observation that a particular group is
underrepresented on a particular panel
does not support a constitutional
challenge." Grose, 525 F.2d at 1119. The
district court did not err in denying
defendants’ constitutional challenge to
the jury selection process.
C. Sufficiency of Evidence
The defendants challenge the sufficiency
of the evidence as to a number of issues.
A defendant who attacks the legal
sufficiency of the evidence supporting a
conviction "faces a nearly insurmountable
burden." United States v. Hickok, 77 F.3d
992, 1002 (7th Cir. 1996) (internal
quotation and citation omitted). Great
deference is given to the finding of the
jury. Penny, 60 F.3d at 1262. The jury’s
verdict will be overturned "only when the
record contains no evidence, regardless
of how it is weighed, from which the jury
could find guilt beyond a reasonable
doubt." United States v. Rosalez-Cortez,
19 F.3d 1210, 1215 (7th Cir. 1994).
1. Dawg Life as an Enterprise
Taylor, Stork, and Wafford challenge the
sufficiency of the evidence to support
their convictions for engaging in an
enterprise of racketeering activity. An
enterprise is defined as "any
partnership, corporation, association, or
other legal entity, and any union or
group of individuals associated in fact
although not a legal entity, which is
engaged in, or the activities of which
affect, interstate or foreign commerce."
18 U.S.C. sec. 1959(b)(2). This
definition of enterprise is the same as
that used in the RICO Act, 18 U.S.C. sec.
1961(4). See United States v. Rogers, 89
F.3d 1326, 1335 (7th Cir. 1996). Under
sec. 1959, the government may prosecute
not only conduct under RICO that
constitutes a pattern of racketeering
activity in connection with an
enterprise, but also for violent crimes
which, in part, permit a defendant to
maintain his position in a RICO
enterprise. Id. Therefore, cases decided
under sec. 1961(4) may also be used to
determine what constitutes an enterprise
under sec. 1959. Id.
For a RICO conviction, the government
must prove "both the existence of an
’enterprise’ and the connected ’pattern
of racketeering activity.’" United States
v. Turkette, 452 U.S. 576, 583 (1981). As
the Court clearly explains,
The enterprise is an entity, for present
purposes a group of persons associated
together for a common purpose of engaging
in a course of conduct. The pattern of
racketeering activity is, on the other
hand, a series of criminal acts as
defined by the statute. The former is
proved by evidence of an ongoing
organization, formal or informal, and by
evidence that the various associates
function as a continuing unit. 18 U.S.C.
sec. 1961(1) (1976 ed., Supp. III). The
latter is proved by evidence of the
requisite number of acts of racketeering
committed by the participants in the
enterprise.
Id.
Defendants argue that although there may
have been sufficient evidence to show
that Dawg Life was "at most a group of
people who get together to commit a
pattern of racketeering activity. . . .
the government was required to present
additional evidence to establish beyond a
reasonable doubt that this group of
people constituted an enterprise."
Defendants rely on United States v.
Korando, which noted that while the
statutory definition of enterprise
includes "enterprises that exist solely
in order to carry out illegal activity,
the enterprise needs to be something more
than just the pattern of racketeering
activity. Otherwise, two statutory
elements--enterprise and pattern--would
be collapsed into one." 29 F.3d 1114,
1117 (7th Cir. 1994) (citations omitted).
However, we also stated in Korando that
the hallmark of an enterprise is
structure, with the enterprise having "a
structure and goals separate from the
predicate [criminal] acts themselves." 29
F.3d at 1117 (citations omitted). We also
noted that RICO applies not only to
formal enterprises but to informal ones
like criminal gangs. Id.
In this case, the jury instructions
defining enterprise and racketeering
activity clearly distinguish the elements
needed for the two separate charges.
An "enterprise," as that term is used in
these instructions, includes any group or
individuals associated in fact although
not a legal entity, which is engaged in,
or the activities of which affect,
interstate or foreign commerce. An
"enterprise" can include a group of
people associated together for a common
purpose of engaging in a course of
conduct. This group may be associated
together for purposes that are both legal
and illegal. In considering whether a
group is an "enterprise," you should
consider whether it has an ongoing
organization or structure, either formal
or informal, and whether the various
members of the group functioned as a
continuing unit. The hallmark of an
enterprise is structure; there must be
some structure that is amenable to
consensual or hierarchical decision-
making, though there need not be much. A
group may continue to be an "enterprise"
even if it changes membership by gaining
or losing members over time. The
government must prove that the group
described in the indictment was the
"enterprise" charged, but need not prove
each and every allegation in the
indictment about the enterprise or the
manner in which the enterprise operated.
Final Jury Instructions, p. 9.
"Racketeering activity" includes any act
or threat involving robbery, or dealing
in a controlled substance. The indictment
alleges that the Dawg Life Gang engaged
in acts involving robbery in violation of
Indiana criminal law, and the felonious
manufacture, importation, receiving,
concealing, buying, selling or otherwise
dealing in controlled substances in
violation of federal law. Under Indiana
law, robbery consists of the knowing or
intentional taking of property from
another person or from the presence of
another person by using or threatening
the use of force on any person, or by
putting any person in fear. Federal law
prohibits the knowing manufacturing,
importing, receiving, concealing, buying,
selling, or otherwise dealing in
controlled substances. "Manufacture"
means to produce or prepare; "import"
means that the substance in question was
brought from a point outside the United
States into the United States.
Final Jury Instructions, p. 10.
Reviewing the evidence in the light most
favorable to the government, it is clear
from the record, including testimony from
admitted Dawg Life gang members, that the
government presented more than sufficient
evidence that the Dawg Life gang was an
enterprise. Dawg Life was a long-
established street gang operating on the
southeast side of South Bend and was
involved in the sale of illegal drugs. It
was an ongoing organization with members
who functioned as a continuing unit.
There was a definite structure with a
distinct ranking of members. There was
also sufficient evidence for the jury to
determine that there was a type of
hierarchical decision-making based on
testimony as to one member being voted
out the gang, one member being appointed
to a higher level, of lower-ranking
members going to higher-ranking members
for drugs, and of higher-ranking members
controlling the pooling of money for
lower-ranking members. The continuity of
an informal enterprise with
differentiated roles amongst the
participants provides the necessary
"structure" to satisfy the statutory
requirements of an enterprise. Korando,
29 F.3d at 1117-18 (citation omitted).
Defendants incorrectly argue that the
structure evidence collapsed into the
evidence of racketeering activity. As we
noted in Rogers, the language of Turkette
does not require "the enterprise to have
a purpose separate and apart from the
pattern of racketeering activity." 89
F.3d at 1336 (emphasis in original)
(citing Turkette, 452 U.S. at 583). We
held that the Court in Turkette "was
merely emphasizing that proof of an
enterprise is separate and apart from
proof of a pattern of racketeering
activity. Thus the two elements are
separate and apart, and ’the proof used
to establish these separate elements may
in particular cases coalesce . . . .’’’
Id. (emphasis in original) (citing
Turkette, 452 U.S. at 538). "[I]t would
be nonsensical to require proof that an
enterprise had purposes or goals separate
and apart from the pattern of
racketeering activity." Id. at 1337.
"[T]he fact that a single individual may
engage in a pattern of racketeering
activity without, of course, comprising
an enterprise adequately illustrated the
inherent and logical distinction between
the two elements." Id.
The district court properly instructed
the jury on the elements as to enterprise
and racketeering activity; that an
enterprise required elements beyond the
"racketeering activity" acts of dealing
in controlled substances. The evidence
was sufficient to allow the jury to find
that Dawg Life was "an entity separate
and apart from the pattern of activity in
which it engages." See Turkette, 452 U.S.
at 583.
2. Violent Crimes to Maintain or Increase
Position in Enterprise
Taylor, Stork, and Wafford all challenge
the sufficiency of the evidence as to
their convictions for the commission of a
violent crime in aid of racketeering in
violation of 18 U.S.C. sec. 1959, which,
in part, provides:
Whoever, as consideration for the receipt
of, or as consideration for a promise or
agreement to pay, anything of pecuniary
value from an enterprise engaged in
racketeering activity, or for the purpose
of gaining entrance to or maintaining or
increasing position in an enterprise
engaged in racketeering activity,
murders, kidnaps, maims, assaults with a
dangerous weapon, commits assault
resulting in serious bodily injury upon,
or threatens to commit a crime of
violence against any individual . . .
shall be punished . . . .
18 U.S.C. sec. 1959(a).
The basic instruction given to the jury
for all three defendants required a
finding that (1) the Dawg Life street
gang existed and was an enterprise
engaged in, or the activities of which
affected, interstate or foreign commerce,
(2) that the Dawg Life street gang
engaged in racketeering activity, (3)
that defendant committed a specific
violent crime under Indiana law, and (4)
that defendant committed the violent
crime for the purpose of gaining entrance
to or maintaining or increasing position
in the Dawg Life street gang. The
government is required to prove that the
defendant’s general purpose in committing
the crime of violence was to maintain or
increase his position in the criminal
enterprise.
There was testimony that the Dawg Life
gang was an ongoing enterprise involved
in the sale of illegal drugs. The gang
operated on principles of violence and
that violence was a prerequisite for
rewarding and promoting members. There
was also testimony that acts of violence
were a part of the Dawg Life culture and
violence was the expected behavior in
order to maintain one’s status within the
gang.
a. Stork
Stork was charged with committing a
battery with a dangerous weapon resulting
in the serious bodily injury of Charlotte
Flemming and aiding and abetting in a
battery. Witnesses provided evidence that
occupants in the car yelled gang "things"
and were throwing up O.B.K. signs prior
to the shooting. Stork admitted to having
fired a handgun in the direction of the
house and conceded that gang slogans were
shouted, although "they probably came
from another car." There was also
testimony that Stork had discussed the
shooting and his problems with firing the
gun at one of the gang meetings.
Given the general testimony as to the
importance of violence in Dawg Life, and
the specific testimony as to the
shooting, there was sufficient evidence
for the jury to find beyond a reasonable
doubt that the shooting was the type of
behavior encouraged and demanded of
members of Dawg Life in order to maintain
their status within the gang. See
Rosalez-Cortez, 19 F.3d at 1215.
b. Taylor
Taylor was charged with committing a
battery with a dangerous weapon resulting
in the serious bodily injury of David
Carrell. The general testimony of gang
violence, along with Carrell’s
identification of Taylor as the shooter,
was sufficient for the jury to find
beyond a reasonable doubt that Taylor’s
violent act was part of his behavior as a
member of Dawg Life, and that behavior
allowed him to, at a minimum, maintain
his status within the gang.
c. Wafford
Wafford was charged with committing
attempted battery with a dangerous weapon
for the attempted shooting of David
Carrell. Wafford concedes that he shot at
Carrell and does not deny that he was
involved in Dawg Life’s crack house
operations. However, he argues that
theevidence did not prove that the
purpose of the shooting was to gain
entrance to, maintain, or increase his
position in Dawg Life. One of the gang
members who testified stated that he and
Wafford were the shooters and that the
Carrell shooting was a "spur of the
moment" decision having nothing to do
with Dawg Life. He also testified that he
believed Carrell had shot at Wafford
sometime in the past but was unable to
elaborate.
There was also testimony from one of the
police officers who regularly patrolled
the southeast side and was familiar with
gang activity. The officer explained that
he had been very aggressive in making
cocaine arrests in the Dawg Life
territory and taking people to jail. This
officer stated he was stopped by Wafford
while on patrol in August of 1998,
several weeks before the shooting. He
said that Wafford introduced himself and
told the officer that Wafford knew who he
(the officer) was. The officer stated
that Wafford told him he (Wafford) was an
O.G., and he wanted the officer to
"lighten up on the Little Locs in the
neighborhood." (As a high-ranking O.G.,
Wafford would not usually sell the drugs
himself, but would supervise the sales
carried out by the lower-ranking members,
normally the Little Locs.)
There was sufficient evidence for the
jury to find that Wafford believed that
Carrell’s mother was "snitching" to the
police about the crack house, which,
testimony showed, was controlled by Dawg
Life members, and from which place
Wafford supervised crack sales. The jury
could reasonably have found that Wafford,
as an O.G., was acting to protect and
further the Dawg Life enterprise,
carrying out his responsibilities as
required by his position within the gang.
Basically, all three defendants are
asking this court to reweigh the
evidence, which we may not do. United
States v. Mojica, 984 F.2d 1426, 1435
(7th Cir. 1993) ("It is not the task of
this appellate court to reconsider the
evidence or assess the credibility of the
witnesses."). As the defendants’
sufficiency of the evidence arguments
rely on the weight the jury gave to the
witnesses’ testimony, we find there was
sufficient evidence to convict each one
of committing a violent crime in order to
maintain his position within the criminal
enterprise.
3. Maintaining a Crack House
Phillips and Taylor were both convicted
of aiding in the maintenance of a crack
house in violation of 21 U.S.C. sec.
856/6 and 18 U.S.C. sec. 2./7
There was testimony that Dawg Life
controlled at least six known crack
houses, including the ones on LaPorte
Street and East Indiana Street. Neither
defendant disputes the testimony that the
houses on LaPorte and East Indiana were
crack houses and that illegal drugs were
being sold. Phillips argues that he was
an innocent bystander who just happened
to be at both houses. Taylor argues, at
most, he could have been a lookout.
Defendants’ arguments are without merit.
Again, they ask us to reweigh the
evidence, which we may not do. See
Mojica, 984 F.2d at 1435.
Given the identification that Dawg Life
was involved in the sale of illegal
drugs, that these were Dawg Life crack
houses, that commercial sales had taken
place in these houses, see United States
v. Church, 970 F.2d 401, 406 (7th Cir.
1992), that Phillips and Taylor were both
higher-ranking G. Locs, and that G. Locs
were known to supervise the sale of drugs
by the lower-ranking Little Locs, there
was sufficient evidence for the jury to
find guilt beyond a reasonable doubt.
4. Phillips’ Possession of a Firearm
Phillips was convicted as a felon in
possession of a firearm in violation of
18 U.S.C. sec. 922(g)/8 and now argues
there was insufficient evidence to show
his possession of any of the firearms
seized at the raid on 303 LaPorte Street
when he was arrested. To obtain a
conviction for felon-in-possession under
sec. 922(g)(1), the government must
establish beyond a reasonable doubt that
(1) the defendant had a previous felony
conviction, (2) the defendant possessed a
firearm, and (3) the firearm had traveled
in or affected interstate commerce.
United States v. Walls, 225 F.3d 858, 864
(7th Cir. 2000) (citations omitted). The
only element at issue is Phillips’
"possession" of a firearm. Possession may
be demonstrated by either actual or
constructive possession. Id. (citation
omitted). Actual possession may be shown
by direct physical control of the
firearm. Id. Constructive possession
occurs when the defendant "knowingly has
the power and the intention at a given
time to exercise dominion and control
over an object, either directly or
through others." United States v.
Garrett, 903 F.2d 1105, 1110 (7th Cir.
1990) (emphasis and citations omitted).
In fact, the government presented
sufficient evidence to show both actual
and constructive possession of firearms
located at 303 LaPorte. Phillips had
direct control of the Taurus handgun
found under the cushion next to him on
the sofa. He had constructive possession
of the other firearms in the sense that
he had been observed at the house during
the week of the raid and he was a higher-
ranking member of Dawg Life at a Dawg
Life crack house. Due to Phillips’
position in the gang, the jury could
reasonably infer that he was in control
at the crack house. At a minimum, the
government need only show some nexus
between the defendant and the guns. See
United States v. Hunte, 196 F.3d 687, 692
(7th Cir. 1999) ("a defendant’s access to
a firearm, even when others also had
access, was sufficient to allow a jury to
find constructive possession." (citation
omitted)).
The district court’s jury instruction as
to "possession" was proper, reading in
part, "Possession of an object is the
ability to control it. Possession may
exist even when a person is not in
physical contact with the object, but
knowingly has the power and intention to
exercise direction or control over it,
either directly or through others." There
was sufficient evidence for the jury to
convict Phillips on this charge.
D. Sentencing Challenge
In the final issue, Stork argues that
the district court misinterpreted the
United States Sentencing Guidelines
("U.S.S.G." or the "Guidelines") in
applying a six-level enhancement under
sec. 2A2.2(b)(3) for "permanent or life-
threatening" injuries suffered by
Charlotte Flemming. Because Stork is
challenging the legal interpretation of
the Guidelines, our review is de novo.
United States v. White, 222 F.3d 363, 372
(7th Cir. 2000) (citation omitted). The
district court’s findings of fact are
reviewed for clear error. United States
v. Griffin, 150 F.3d 778, 787 (7th Cir.
1998) (citation omitted).
Section 2A2.2 for aggravated assault
begins with a base offense level of 15. A
two-level enhancement is added if the
victim has sustained bodily injury, four
levels for serious bodily injury, and six
levels for "permanent or life-threatening
bodily injury." U.S.S.G. sec.
2A2.2(b)(3). Section 1B1.1, cmt. n.1(j),
of the Guidelines defines "serious bodily
injury" in pertinent part as an "injury
involving extreme physical pain or the
protracted impairment of a function of a
bodily member, organ, or mental faculty;
or requiring medical intervention such as
surgery, hospitalization, or physical
rehabilitation." Section 1B1.1, cmt.
n.1(h), defines "permanent or life-
threatening bodily injury" as an "injury
involving a substantial risk of death;
loss or substantial impairment of the
function of a bodily member, organ, or
mental faculty that is likely to be
permanent; or an obvious disfigurement
that is likely to be permanent."
Stork argues that the term "permanent
injury" when linked with "life-
threatening" means that the permanent
injury "must be of the same magnitude or
seriousness as a life-threatening
injury," and "the disfigurement must rise
to the same level as a substantial
impairment of bodily function." He
maintains that a four-level enhancement
for "serious bodily injury" would have
been appropriate. The government argues
that the scars are a permanent
disfigurement. The district court noted
that other cases based on injuries
"permanent or life-threatening" have been
more serious injuries than Charlotte
Flemming’s facial scars, see United
States v. Jacobs, 167 F.3d 792, 797 (3rd
Cir. 1999) (finding that the injuries
were both permanent and life-
threatening); United States v. Price, 149
F.3d 352, 353-54 (5th Cir. 1998) (finding
that there was 10-15% permanent loss of
hand function), and that cases based on
"serious bodily injury" have involved
injuries that might be considered more
serious than facial scars, see United
States v. Rodgers, 122 F.3d 1129, 1133
(8th Cir. 1997) (finding that post-
traumatic stress disorder causing loss of
mental faculties and requiring
hospitalization was a "serious bodily
injury"). However, we agree with the
district court’s assessment that the
issue is not whether other victims have
suffered worse injuries but whether
Charlotte Flemming suffered "permanent"
injuries within the meaning of the
Guidelines. As the Fifth Circuit noted in
United States v. Price, "The plain
language of application note 1(h)
encompasses injuries that may not be
terribly severe but are permanent, hence
the disjunctive: ’permanent or life-
threatening injuries.’" 149 F.3d at 354.
The record provides sufficient evidence
that Charlotte Flemming suffered
permanent and disfiguring scars on her
face, which are obvious to anyone who
sees her. There was no clear error in the
district court’s conclusion that
Charlotte suffered a "permanent or life-
threatening bodily injury" with an
enhancement under sec. 2A2.2(b)(3)(C).
III. CONCLUSION
For the above-stated reasons, the
judgment of the district court is
affirmed in all respects.
AFFIRM.
FOOTNOTES
/1 The L is written upside-down to denote
disrespect to the rival Lakeside gang.
/2 Rule 8(b) provides:
(b) Joinder of Defendants. Two or more
defendants may be charged in the same
indictment or information if they are
alleged to have participated in the same
act or transaction or in the same series
of acts or transactions constituting an
offense or offenses. Such defendants may
be charged in one or more counts together
or separately and all of the defendants
need not be charged in each count.
/3 Rule 14, Relief from Prejudicial
Joinder, provides:
If it appears that a defendant or the
government is prejudiced by a joinder of
offenses or of defendants in an indict-
ment or information or by such joinder
for trial together, the court may order
an election or separate trials of counts,
grant a severance of defendants or pro-
vide whatever other relief justice re-
quires. In ruling on a motion by a defen-
dant for severance the court may order
the attorney for the government to deliv-
er to the court for inspection in camera
any statements or confessions made by the
defendants which the government intends
to introduce in evidence at trial.
/4 Prior to any testimony not relating
to Phillips’ charges, the district court
informed the jury that "the evidence that
you hear [at this time] may not be con-
sidered in deciding whether the govern-
ment has proven its case with respect to
Mr. Phillips."
/5 We can only guess that defense
counsel thought their discussion in court
was the equivalent of a "sworn state-
ment." While it is true that the discus-
sion was recorded and transcribed by the
court reporter, no official copy of this
discussion nor any affidavit was ever
submitted at any time as the mandatory
sworn statement required by 28 U.S.C.
sec. 1867(d).
/6 21 U.S.C. sec. 856, Establishment
of manufacturing operations, provides in
part:
(a) Except as authorized by this subchap-
ter, it shall be unlawful to--
(1) knowingly open or maintain any
place for the purpose of manufacturing,
distributing, or using any controlled
substance;
(2) manage or control any building,
room, or enclosure, either as an owner,
lessee, agent, employee, or mortgagee,
and knowingly and intentionally rent,
lease, or make available for use, with or
without compensation, the building, room,
or enclosure for the purpose of unlawful-
ly manufacturing, storing, distributing,
or using a controlled substance.
/7 18 U.S.C. sec. 2, Principals, pro-
vides in part, "Whoever commits an of-
fense against the United States or aids,
abets, counsels, commands, induces or
procures its commission, is punishable as
a principal." Id. sec. 2(a).
/8 18 U.S.C. sec. 922(g) provides in
part:
(g) It shall be unlawful for any person--
(1) who has been convicted in any
court of, a crime punishable by imprison-
ment for a term exceeding one year;
. . .
to ship or transport in interstate or
foreign commerce, or possess in or af-
fecting commerce, any firearm or ammuni-
tion; or to receive any firearm or ammu-
nition which has been shipped or trans-
ported in interstate or foreign commerce.