United States v. Mansoori, Bahman

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 99-1492, 99-3533, 99-3569

99-3570, 99-3623

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BAHMAN MANSOORI, MARK COX,

MOHAMMAD MANSOORI,

KENNETH CHOICE, and TERRY YOUNG,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 CR 63—George W. Lindberg, Judge.

____________

ARGUED NOVEMBER 8, 2000—DECIDED AUGUST 29, 2002

____________

Before BAUER, ROVNER, and DIANE P. WOOD, Circuit

Judges.

ROVNER, Circuit Judge. Appellants Kenneth Choice,

Mark Cox, Bahman Mansoori, Mohammad Mansoori, and

Terry Young were collectively convicted of conspiracy to

possess with intent to distribute cocaine, cocaine base and

heroin. Cox and Young were also convicted of possession of

cocaine with the intent to distribute; Mohammad Mansoori

was convicted of engaging in monetary transactions in-

volving funds derived from criminal activity; and Young

2 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

was convicted of money laundering. We affirm the appel-

lants’ convictions but, based on certain errors at sentencing,

vacate their sentences and remand for re-sentencing in

conformity with this opinion.

I.

On October 31, 1996, a drug transaction many months in

the planning finally came to pass. Several members of the

Chicago street gang, Traveling Vice Lords (“TVL”), who

were engaged in narcotics trafficking had organized a drug

deal that, unbeknownst to them, would be captured on

recorded telephone conversations obtained through court-

authorized wiretaps. On that date, TVL leader Terry Young

had arranged for TVL member Timothy White to purchase

a kilogram of cocaine for resale from Mark Clemons.

Young’s right-hand man, Kenneth Choice, was assigned to

transfer the cocaine from White to another TVL member,

Terry Bronson, who would keep it until Mark Cox came to

pick it up for resale on the street. Once Bronson was in

possession of the cocaine, the police began to follow his car.

A chase ensued that finally ended with Bronson crashing

his car into a garage and fleeing the scene of the accident

without the cocaine, which the police officers seized. Arrests

of the individuals who had participated in the narcotics

trafficking ensued.

The evidence at trial revealed that each of the appellants

participated in a conspiracy to distribute narcotics in a

different capacity. Mohammad Mansoori was not a member

of TVL, but along with his brother, Bahman, distributed

drugs and guns to Young. Young, Cox, and Choice were all

members of TVL. They used the gang to plan highly or-

ganized drug transactions that culminated in street-level

sales of cocaine and heroin at locations controlled by the

gang. Young, a high-ranking TVL member, was in charge of

the drug sales. Young obtained drugs and guns from

Mohammad and Bahman Mansoori and then distributed

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 3

both (the drugs for resale, and the firearms for protection)

among various members of the gang. He assigned other

gang members to certain locations where they carried out

their sales. Choice worked directly for Young within the

gang, picking up and delivering drugs for various TVL

members. Cox also worked directly under Young, managing

a large area of drug distribution locations.

Both Mohammad Mansoori and Young purchased prop-

erty with earnings from the drug enterprise. Mansoori

made several large cash payments to contractors for a house

he was having built in Highland Park. He had confessed to

an accountant and an IRS agent that he did not receive any

money from his legitimate enterprises. The police had also

stopped Mansoori and seized about $11,000 in cash made

from a suspected drug transaction. Young had purchased a

house through a nominee purchaser, Lovell Nabors. Al-

though Nabors signed a lease with purchase option for the

house, he used Young’s money to make the purchase and

understood that the house was actually Young’s. An IRS

agent testified that he did not think that Young could have

purchased the property with his legitimate sources of

income.

The jury convicted appellants of all charges, and this

appeal arises from the convictions and the lengthy sen-

tences that the district court imposed pursuant to those

convictions.

II.

A. Wiretap Order

On four occasions in late 1996 and early 1997, then-Chief

Judge Marvin Aspen of the Northern District of Illinois

entered orders authorizing the government to monitor

various telephone numbers which, the government believed,

the defendants were using to conduct their narcotics busi-

ness. The orders indicated that the conversations inter-

4 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

cepted from these telephone numbers were expected to

reveal:

(1) the identities of individuals possessing with intent

to distribute and distributing controlled substances;

(2) the locations where the controlled substances were

distributed and stored;

(3) the methods by which the controlled substances

were distributed and drug proceeds are distributed;

(4) the dates, times and manner of the transportation,

receipt, storage, distribution and delivery of the

controlled substances and proceeds;

(5) the nature and scope of the conspiracy; and

(6) the identities and roles of unidentified conspirators.

Appellants’ Joint Appendix (“App.”) 228-29, 237-38, 245-46,

254. Each order also compelled the government to minimize

(i.e., limit) the interception of conversations that did not

relate to the government’s investigation.

Monitoring of wire conversations must terminate im-

mediately when it is determined that the conversation

is unrelated to communications subject to interception

under Chapter 119, Title 18, United States Code. In-

terception must be suspended immediately when it is

determined through voice identification, physical sur-

veillance, or otherwise, that none of the named inter-

ceptees or any of their confederates, when identified,

are participants in the conversation unless it is de-

termined during the portion of the conversation al-

ready overheard that the conversation is criminal in

nature. . . .

App. 232, 241, 248-49, 257; see 18 U.S.C. § 2518(5). Con-

versely, however, the orders also permitted the individual

monitoring to spot check any minimized conversation to

ensure that the participants had not turned their discus-

sion to illicit matters within the scope of the investigation.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 5

(“If the conversation is minimized, the monitoring individ-

ual shall spot check to ensure that the conversation has not

turned to criminal matters.”). App. 232, 241, 249, 257-58.

Pursuant to these orders, the government intercepted

more than 3,500 telephone conversations. In order to

determine whether a given conversation fell within the

scope of the intercept order or instead concerned matters

unrelated to the investigation, the government would ini-

tially intercept the conversation for a period of two minutes.

If the monitoring individual determined that the conversa-

tion was beyond the scope of authorized surveillance, the

interception would cease at the end of the two-minute

period in compliance with the minimization requirement of

the wiretap orders.1 However, if that conversation lasted for

more than another minute or so, the monitoring individual

would re-intercept the conversation and perform a follow-up

spot check to confirm that the conversation had not pro-

gressed into the scope of authorized surveillance. In

practice, this meant that all telephone calls under two

minutes in length were intercepted (whether relevant to the

investigation or not) and that one or more two-minute

segments of longer conversations were also intercepted,

even when those conversations were irrelevant to the in-

vestigation. A summary prepared by the government in-

dicates that of all the calls intercepted: 565 conversations

were identified as criminal in nature and so were not

minimized; 1,791 conversations were not pertinent to the

investigation but were not minimized because they lasted

no more than two minutes; and another 366 were not

pertinent and exceeded two minutes in length, and of these

1

During minimization periods, the monitoring agent would stop

recording the conversation and turn the sound off in the intercep-

tion device.

6 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

nearly all (362) were minimized. R. 267 at 21.2

In advance of trial, the defendants moved to suppress all

of the intercepted conversations, contending that the gov-

ernment had not complied with the minimization require-

ment and, as a result, had unnecessarily and inappropri-

ately eavesdropped on a number of conversations that were

beyond the scope of its investigation. Judge Lindberg denied

the motion. Although the judge agreed that the government

had intercepted a number of conversations, or portions of

conversations, that were beyond the scope of the wiretap

orders, he did not believe that the government’s agents had

listened to more of the conversations than necessary in

order to determine that they were irrelevant:

[I]t is understandable that a fair amount of material

not pertinent to the investigation wound up being

intercepted in this investigation. Many of the conversa-

tions were under two minutes in length, and so did not

require minimization. The individuals conversing often

did so in an ambiguous, guarded, and possibly coded

manner so that more of the conversations had to be

intercepted to later sort out what in fact they were

talking about. The Government had evidence that

defendant Terry Young was the head of a major drug

ring justifying more extensive interception. And the

authorizing judge was supervising the electronic sur-

veillance in an ongoing manner, receiving reports on it

at ten day intervals.

R. 335 at 2. At trial, the government introduced approxi-

mately 300 of the tape recordings into evidence. Because

these recordings captured the defendants discussing nar-

2

These subtotals do not include certain intercepted communica-

tions, including calls that were placed to pagers, calls in which the

intended recipient was not reached, and conversations that took

place in Farsi.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 7

cotics transactions, they proved to be some of the most

direct and damning evidence in the prosecution’s arsenal.

On appeal, the defendants initially argue that the wiretap

orders, by virtue of the provision allowing periodic spot

checks of any minimized conversation “to ensure that the

conversation has not turned to criminal matters,” violated

their statutory and constitutional rights. Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 18

U.S.C. § 2510 et seq., includes a mandate that “[e]very

[intercept] order and extension thereof shall contain a

provision that the authorization to intercept . . . shall be

conducted in such a way as to minimize the interception of

communications not otherwise subject to interception under

this chapter . . . .” 18 U.S.C. § 2518(5). Although the in-

tercept orders in this case included a minimization require-

ment, the defendants believe that this provision of the

orders was rendered virtually meaningless as a result of the

orders’ additional provision that “the monitoring individual

shall spot check to ensure that the conversation has not

turned to criminal matters.” App. 232, 241, 249, 257-58

(emphasis added). They find the spot-check provision

problematic in two respects: (1) the provision imposed no

limits on the frequency or duration of spot checks; and (2)

because the provision referred broadly to “criminal matters”

rather than to the specific criminal activities for which

Judge Aspen had authorized interception, the orders

permitted the government to check each and every mini-

mized conversation for any discussion of criminal activity,

even criminal activity that was unrelated to the govern-

ment’s investigation.

Because the defendants did not make this particular

challenge below, our review is for plain error alone, see

United States v. Williams, 272 F.3d 845, 854-55 (7th Cir.

2001), cert. denied, 122 S. Ct. 1339 (2002), and we find no

such error in the terms of the order. Express limits on the

frequency and duration of spot checks may well be impracti-

cal, as neither the government nor the authorizing court

8 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

can know in advance how easy it will be for the monitoring

agent to discern whether any given intercepted conversa-

tion concerns a subject within the scope of the investigation

or not. A conversation may be short and to the point or long

and meandering; and a conversation may begin on a non-

pertinent topic but switch to a pertinent subject in short

order. Use of code language, which as the district judge

recognized is common among narcotics traffickers, can

make quick assessments of the pertinence of a conversation

difficult. So we cannot say that Judge Aspen erred when he

refrained from placing a one-size-fits-all limitation on either

the frequency or duration of follow-up spot checks or that

Judge Lindberg plainly erred when he declined to suppress

the results of the surveillance for want of such a limitation.

Nor do we think that the provision’s generalized reference

to “criminal matters” plainly rendered the spot-check

provision overbroad. When read in context with the other

terms of the wiretap orders, that language did not give the

government license to monitor all minimized conversations

for any mention of criminal activity, whether related to the

investigation or not. The orders specifically identified the

type of evidence that the authorized intercepts were

intended to capture. App. 228-29, 237-38, 245-46, 254.

Furthermore, the orders required the government to stop

monitoring a conversation “immediately” if the conversation

turned out not to constitute “communications subject to

interception under [Title III.]” App. 232, 241, 248, 257. The

orders also acknowledged that Title III allowed for the

interception and disclosure only of “those communications

relevant to the pending investigation . . . .” App. 232, 241,

248, 257. Indeed, the government’s instructions to its

monitoring agents noted that “[w]e do not have authoriza-

tion to overhear evidence concerning the commission or

planning of crimes other than those [specified previously in

the instructions] as illegal activities.” R. 267 Ex. A at 7; see

also id. at 3-4 (specifying illegal activities as to which

interception permitted). Notwithstanding the language of

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 9

the spot-check provision, then, the overall terms of the

orders made reasonably clear that the government was

permitted to check intercepted conversations solely for

discussions pertinent to the government’s investigation, the

nature and scope of which the face of the orders made clear.

Any impermissible overbreadth in the spot-check provisions

of the orders was not plain.

The defendants’ second challenge focuses on the adequacy

of the government’s efforts to comply with the minimization

requirement. What the minimization requirement means,

essentially, is that once the monitoring agent has had a

reasonable opportunity to assess the nature of an inter-

cepted communication, he or she must stop monitoring that

communication if it does not appear relevant to the govern-

ment’s investigation. In this case, the government’s instruc-

tions to the monitoring agents indicated that they could

listen to all calls involving one of the individuals named in

the instructions “for a reasonable time, usually not in ex-

cess of two minutes, to determine whether the conversation

concerns criminal activities.” Id. at 5.3 In practice, the

agents monitored the entirety of all calls under two minutes

in length (some 1,791 calls, 103 of which were in Farsi).

Moreover, calls in excess of two minutes that were deemed

non-pertinent after the initial two-minute assessment were,

per the instructions, periodically reassessed (again for up

to two minutes at a time) at intervals of at least one min-

ute. Id. at 5-6. So, theoretically, an agent could listen to the

first two minutes of a conversation, decide it was non-

pertinent, turn off the listening and recording devices for a

minute, then turn them back on and listen to the conversa-

tion for another two minutes, and so on—and in this way

3

The instructions authorized agents to listen to a conversation

for a period longer than two minutes if the nature of the conversa-

tion was not entirely clear but was possibly related to the subject

of the investigation. See R. 267 Ex. A at 5.

10 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

monitor as much as two-thirds of a non-pertinent conversa-

tion.4 The defendants argue that because the government’s

agents listened to each call for a period of two minutes to

determine initially whether or not the conversation fell

within the scope of the wiretap orders, and because they

performed periodic, two-minute spot-checks on minimized

calls, there was no real minimization in practice.

A court assessing the sufficiency of the government’s

efforts in this regard must ultimately decide whether the

steps that agents have taken to minimize the interception

of communications unrelated to the investigation were

objectively reasonable given the circumstances confronting

the agents. See Scott v. United States, 436 U.S. 128, 137, 98

S. Ct. 1717, 1723 (1978). Although the adequacy of the

government’s minimization efforts necessarily depends on

the facts of each case, relevant considerations include the

kind and scope of criminal enterprise that the government

was investigating, the thoroughness of the government’s

efforts to ensure that nonpertinent calls will be minimized,

the extent to which the government could have foreseen

that certain types of conversations would be innocuous and

thus subject to minimization, use of code, and the extent to

which the authorizing judge oversaw the interception

efforts. United States v. Quintana, 508 F.2d 867, 874-75 (7th

Cir. 1975); see also United States v. Charles, 213 F.3d 10, 22

(1st Cir.), cert. denied, 531 U.S. 915, 121 S. Ct. 272 (2000);

United States v. Bankston, 182 F.3d 296, 307 (5th Cir. 1999),

judgment rev’d on other grounds by Cleveland v. United

States, 531 U.S. 12, 121 S. Ct. 365 (2000); United States v.

Williams, 109 F.3d 502, 507 (8th Cir.), cert. denied, 522 U.S.

4

The instructions did indicate that if conversations between the

subject and one or more other individuals were invariably in-

nocent, then subsequent conversations involving those conversa-

tions should no longer be monitored or recorded even on a spot

basis. See R. 267 Ex. A at 6 ¶ 10.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 11

917, 118 S. Ct. 303 (1997). “[W]here an investigation in-

volves a drug ring of unknown proportion, as in this case,

‘the need to allow latitude to eavesdroppers is close to its

zenith.’ ” Charles, 213 F.3d at 22, quoting United States v.

Hoffman, 832 F.2d 1299, 1308 (1st Cir. 1987). We review the

district court’s minimization assessment for clear error.

United States v. Moody, 977 F.2d 1425, 1433 (11th Cir.

1992), cert. denied, 507 U.S. 1052, 113 S. Ct. 1948 (1993);

Bankston, 182 F.3d at 306.

We are not inclined to view the government’s overall

approach to minimization in this case as insufficient. The

government was investigating what the district judge

described as a “major drug ring.” R. 335 at 2. Narcotics

traffickers are often aware that their conversations might

be overheard or intercepted, and so may choose their words

carefully. In this case, Judge Lindberg found that “[t]he in-

dividuals conversing often did so in an ambiguous, guarded,

and possibly coded manner . . . .” Id. Consequently, the

individuals monitoring such conversations cannot be ex-

pected to make snap judgments as to whether the subject of

the conversation is within the scope of the intercept order.

See Quintana, 508 F.2d at 874 (“It is all well and good to

say, after the fact, that certain conversations were irrele-

vant and [monitoring] should have been terminated.

However, the monitoring agents are not gifted with pre-

science and cannot be expected to know in advance what

direction the conversation will take.”) (internal quotation

marks and citations omitted). A number of other courts

have found that two to three minutes is a reasonable period

of time within which to make an initial judgment as to the

pertinence of a conversation. See United States v. Ozar, 50

F.3d 1440, 1448 (8th Cir.), cert. denied, 516 U.S. 871, 116 S.

Ct. 193 (1995); United States v. Homick, 964 F.2d 899, 903

(9th Cir. 1992); United States v. Willis, 890 F.2d 1099, 1102

(10th Cir. 1989); United States v. Losing, 560 F.2d 906, 909

n.1 (8th Cir.), cert. denied, 434 U.S. 969, 98 S. Ct. 516

(1977); United States v. Armocida, 515 F.2d 29, 45 (3d Cir.),

12 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

cert. denied, 423 U.S. 858, 96 S. Ct. 111 (1975); see also

Bynum v. United States, 423 U.S. 952, 954, 96 S. Ct. 357,

358 (1975) (Brennan, J., dissenting from denial of certiorari)

(noting that brief calls—apparently those of less than three

minutes in duration—will generally not be subject to

minimization). Moreover, because conversations among

traffickers, as among others, may bounce among a variety

of topics, periodic spot-checking of minimized conversations

is not unreasonable either. See Ozar, 50 F.3d at 1448. Thus,

the general parameters under which the government con-

ducted the monitoring here were not inherently suspect.

Moreover, we note that the government in the course of its

electronic surveillance submitted periodic reports to Judge

Aspen, a circumstance that suggests it conducted the sur-

veillance in good faith. See Quintana, 508 F.2d at 875.

But whether, in practice, the government’s actual mini-

mization efforts were sufficient is not a point that we need

to resolve, ultimately. The adequacy of the government’s

minimization efforts typically cannot be determined in a

generalized fashion. See Scott, 436 U.S. at 140-41, 98 S. Ct.

at 1724-25. Yet the defendants have framed their challenge

in very broad terms. They appear to suggest, for example,

that it was unreasonable for monitoring agents to listen to

all calls for an initial two-minute period, apparently on the

assumption that a speedier assessment as to the pertinence

of the calls was possible in at least some instances. And,

indeed, perhaps some of the intercepted conversations did

lend themselves to simple and quick categorization as

pertinent or non-pertinent, while others required a full two

minutes or more to assess. See id. at 140-43, 98 S. Ct. at

1724-26; cf. Quintana, 508 F.2d at 874 (if a pattern of

innocent conversations emerges, agents should cease mon-

itoring such conversations; but such patterns will not

always be identifiable). The point is, however, that we

cannot know whether this is true without examining at

least a sampling of the intercepted calls. Likewise, whether

the agents performed spot checks at intervals that were too

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 13

frequent, and whether they listened for too long when they

made those checks, is not a question that can be answered

responsibly in the abstract. If, after a review of the inter-

cepts, the defendants believed that the government’s eaves-

dropping was too intrusive and that a greater degree of

minimization was warranted, then it was incumbent upon

them to identify at least a sample of intercepted calls that

proves their point. This they have not done. If the defen-

dants were to prevail on their challenge, the appropriate

relief likely would be to suppress any conversation or

conversations that were inappropriately monitored. See 18

U.S.C. § 2518(10)(a)(iii); Charles, 213 F.3d at 22 (partial

suppression of those conversations intercepted improperly

is the usual remedy for inadequate minimization efforts;

wholesale suppression of all intercepted conversations is

reserved for the “particularly horrendous case”), quoting

Hoffman, 832 F.2d at 1309; Ozar, 50 F.3d at 1448; see also

United States v. Baltas, 236 F.3d 27, 32 (1st Cir.), cert.

denied, 532 U.S. 1030, 121 S. Ct. 1982 (2001); United States

v. Dorfman, 542 F. Supp. 345, 394-95 (N.D. Ill. 1982),

judgment aff’d sub nom. United States v. Williams, 737 F.2d

594 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct.

1354, 1355 (1985). Judge Lindberg pointed out that the

defendants had not identified any particular conversation

that should have been minimized but was not or that

should have been minimized to a greater degree than it

was. R. 335 at 2. Even on appeal, the defendants do not

identify any such conversation. Nor do the defendants

identify any concrete harms resulting from the admission of

conversations which, in their view, should have been

suppressed for want of appropriate minimization. Conse-

quently, we have been deprived of the requisite basis for

assessing the government’s minimization efforts. For that

reason, we need not, in the end, reach the merits of the

minimization argument.

14 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

B. Anonymous Jury

On the government’s motion, and over the defendants’

objections, the district court decided not to disclose the

names or the home and work addresses of prospective and

empaneled jurors to the parties, the public, or the media—a

step that resulted in an anonymous jury. Judge Lindberg

had initially denied the government’s request for juror

anonymity, remarking that he did not “see any need for it.”

R. 750, 1/12/98 Transcript (“Tr.”) 27. After entertaining

further argument on the matter, however, the judge acceded

to the request. He cited the following circumstances in

support of his ruling: (1) the defendants were involved in

organized, violent street crime that had “elements of what

is traditionally called organized crime,” (2) with access to

some 200 firearms, the defendants had the “capacity to

harm jurors,” (3) allegedly, some of the witnesses and their

families had been threatened, (4) the defendants were

subject to lengthy terms of incarceration and stiff monetary

penalties if convicted, and (5) there would likely be press

coverage—“perhaps not extensive, but significant, public-

ity”—regarding the case. Id. at 116-17. “So it’s not the fact

that it’s a drug case or a firearms case,” the judge ex-

plained, “but it is the fact that there appears to be orga-

nized activity on the part of the defendants and their

associates and families that warrants the prophylaxis

of juror anonymity.” Id. at 117-18. Shortly before jury

selection commenced, Judge Lindberg disavowed any

reliance upon threats against witnesses and their fam-

ilies, explaining that his principal concerns about the

prospect of interference with jurors were based on his

experience with another trial involving the Gangster

Disciples, a gang unrelated to the Traveling Vice Lords.

R. 754-1, 1/20/98 Tr. at 6. This left the organized-crime

aspect of the case as the sole basis for the court’s decision

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 15

in favor of juror anonymity.5

In the midst of jury selection, defendant Young’s counsel

asked the court to give the members of the venire an

instruction indicating that their names and addresses were

being withheld for reasons other than their own safety, so

as to allay any suspicions among prospective jurors that

their anonymity might otherwise arouse and to thereby

minimize the potential prejudice to the defendants. See

United States v. Crockett, 979 F.2d 1204, 1216-17 (7th Cir.

1992), cert. denied, 507 U.S. 998, 113 S. Ct. 1617 (1993).

The court agreed to give an instruction to the effect that the

jurors’ identifying information was being withheld in order

to prevent the media from contacting them. R. 754-3,

1/22/98 Tr. 380. However, when the full venire was assem-

bled for final questioning, the judge neglected to give the

instruction, and the parties did not remind him to do so.

The defendants argue now, as they did below, that the

circumstances confronting the court did not warrant an

anonymous jury and that the court therefore abused its

discretion in empaneling such a jury. Noting that the dis-

trict court also failed to deliver an appropriate ameliorative

instruction, they contend that the defense was so prejudiced

by the anonymity as to necessitate a new trial. Although we

agree that the court abused its discretion in empaneling an

anonymous jury, see United States v. DiDomenico, 78 F.3d

294, 301 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S. Ct.

507 (1996) (decision to empanel anonymous jury reviewed

for abuse of discretion), in view of the district court’s careful

voir dire of prospective jurors and the overwhelming

5

In support of its request for an anonymous jury, the government

asserted that Young previously had “cloned” a pager belonging to

a Chicago gang crimes specialist in an effort to determine whether

the officer was investigating him and to ascertain the identities of

the officer’s informants. App. 266. Judge Lindberg never relied

upon this allegation as the basis for an anonymous jury.

16 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

evidence of the defendants’ guilt, we find the error harm-

less.

Empaneling an anonymous jury is an extreme measure

that is warranted only where “ ‘there is strong reason to

believe the jury needs protection.’ ” Crockett, 979 F.2d at

1215, quoting United States v. Paccione, 949 F.2d 1183,

1192 (2nd Cir. 1991), cert. denied, 505 U.S. 1220, 112 S. Ct.

3029 (1992). “An anonymous jury raises the specter that the

defendant is a dangerous person from whom the jurors

must be protected, thereby implicating the defendant’s

constitutional right to a presumption of innocence.” United

States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994), cert.

denied, 515 U.S. 1132, 115 S. Ct. 2558 (1995); see also

United States v. Sanchez, 74 F.3d 562, 564 (5th Cir. 1996);

United States v. Edmond, 52 F.3d 1080, 1090 (D.C. Cir.)

(per curiam), cert. denied, 516 U.S. 998, 116 S. Ct. 539

(1995); United States v. Scarfo, 850 F.2d 1015, 1023-26 (3rd

Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263 (1988);

United States v. Thomas, 757 F.2d 1359, 1363-65 (2nd Cir.

1985), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 67 (1985),

and cert. denied, 479 U.S. 818, 107 S. Ct. 78 (1986). Juror

anonymity also deprives the defendant of information that

might help him to make appropriate challenges—in particu-

lar, peremptory challenges—during jury selection. DiDom-

enico, 78 F.3d at 301; Edmond, 52 F.3d at 1090.

Yet, neither the right to a presumption of innocence nor

the right to exercise peremptory challenges is a consti-

tutional absolute; each, at times, must yield to the

legitimate demands of trial administration and court-

room security so long as steps are taken to ensure that

the defendant receives a fair trial.

Id. A court weighing the need for an anonymous jury must

therefore balance the defendant’s interest in preserving the

presumption of innocence and in conducting a useful voir

dire against the jurors’ interest in their own security and

the public’s interest in having a jury assess the defendant’s

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 17

guilt or innocence impartially. United States v. Amuso, 21

F.3d 1251, 1264 (2nd Cir.), cert. denied, 513 U.S. 932, 115 S.

Ct. 326 (1994); accord Edmond, 52 F.3d at 1090. Factors

bearing on the propriety of an anonymous jury include the

defendant’s involvement in organized crime; his participa-

tion in a group with the capacity to harm jurors; whether he

previously has attempted to interfere with the judicial

process; the severity of the punishment that the defendant

would face if convicted; and whether publicity regarding the

case presents the prospect that the jurors’ names could

become public and expose them to intimidation or harass-

ment. Sanchez, 74 F.3d at 564, quoting United States v.

Krout, 66 F.3d 1420, 1427 (5th Cir. 1995), cert. denied, 516

U.S. 1136, 116 S. Ct. 963 (1996); United States v. Darden,

70 F.3d 1507, 1532-33 (8th Cir. 1995), cert. denied, 517 U.S.

1149, 116 S. Ct. 1449 (1996), and cert. denied, 518 U.S.

1026, 116 S. Ct. 2567 (1996); Edmond, 52 F.3d at 1091;

Ross, 33 F.3d at 1520.

We do not believe that the circumstances in this case

warranted an anonymous jury. Although the case did

involve elements of organized crime, “something more” than

the organized-crime label is required in order to justify

juror anonymity. As we explained in Crockett:

“[S]omething more” can be a demonstrable history or

likelihood of obstruction of justice on the part of the

defendant or others acting on his behalf or a showing

that trial evidence will depict a pattern of violence by

the defendant[ ] and his associates such as would cause

a juror to reasonably fear for his own safety.

979 F.2d at 1216, quoting United States v. Vario, 943 F.2d

236, 241 (2nd Cir. 1991), cert. denied, 502 U.S. 1036, 112 S.

Ct. 882 (1992). In this case, the district court made no

finding that the defendants had a history of intimidating

witnesses or otherwise obstructing justice or that they were

likely to do so in connection with this trial. Cf. DiDomenico,

78 F.3d at 301-02 (defendants were connected to organized

18 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

crime syndicate that had history of bribery and intimida-

tion); Edmond, 52 F.3d at 1091-92 (one of defendants in

narcotics conspiracy prosecution was also charged with

murder, other defendants were implicated in that murder

as well, and there was some evidence of planned and at-

tempted witness intimidation); Crockett, 979 F.2d at 1216

(evidence indicated that one potential witness had been

murdered and that attempts had been made to influence or

intimidate other witnesses). True, the defendants may have

had the ability to intimidate jurors through associates who

were not incarcerated, but that is true of many defendants.

What demonstrates the need for jury protection is not

simply the means of intimidation, but some evidence in-

dicating that intimidation is likely. See, e.g., Darden, 70

F.3d at 1532-33; Ross, 33 F.3d at 1520-21; Vario, 943 F.2d

at 240, 241. No such evidence is present here. Nor is there

evidence that the defendants had engaged in a pattern of

violence unusual enough to cause jurors to fear for their

safety. Compare, e.g., Amuso, 21 F.3d at 1264-65 (indict-

ment alleged that defendant was responsible for crimes of

extreme violence, including murders of government wit-

nesses). Although the narcotics conspiracy in this case

embraced a large-scale, gang-related operation with ready

access to firearms, this is regrettably not uncommon in the

drug trade. See, e.g., United States v. Jones, 214 F.3d 836,

838 (7th Cir. 2000) (“guns are common in the drug trade”).

The government has pointed to no evidence of violence of

such a degree as to make this case unusual. The publicity

surrounding the case was by no means extensive. Similarly,

the fact that the defendants faced lengthy prison terms if

convicted is hardly unusual—this is almost always true

when a defendant has dealt in large quantities of narcotics.

In short, that the defendants had the ability and incentive

to threaten jurors, without additional evidence indicating

that they were likely to act on that ability and incentive,

was not enough to justify the unusual step of juror anonym-

ity.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 19

After a complete review of the record, however, we con-

clude that the error was harmless. We recognize that the

Fifth Circuit has suggested that an erroneous decision to

empanel an anonymous jury is not harmless where almost

none of the pertinent factors supported that decision, but in

so opining, that court left open the possibility that a harm-

less error analysis might be appropriate in a closer case.

Sanchez, 74 F.3d at 565. Notwithstanding our disagreement

with the district court’s decision, we believe this to be a

closer case than our colleagues on the Fifth Circuit con-

fronted in Sanchez. The conspiracy charged in this case did

take on elements of organized crime; the defendants and

their unindicted co-conspirators did use weapons and

violence in furtherance of the conspiracy; the defendants

faced very long prison terms upon conviction; and there had

been some pre-trial publicity regarding the case. Although

these circumstances were not, by themselves, sufficient to

justify an anonymous jury, they demonstrate that the

record was by no means devoid of a basis for concern for the

security of the jurors. At the same time, Judge Lindberg

conducted an extremely thorough voir dire of prospective

jurors in this case over the course of three and one-half

days. Juror anonymity is most concretely felt during the

selection of the jury, when the withholding of identifying

information makes it more difficult for the defense (and for

that matter the prosecution) to make intelligent decisions

as to which prospective jurors should be challenged or

stricken peremptorily. See DiDomenico, 78 F.3d at 301;

Crockett, 979 F.2d at 1216. A conscientious voir dire com-

pensates for this disadvantage by rooting out biases against

the defendant or as to the issues presented in the case. Id.

at 1216; see also Edmond, 52 F.3d at 1092-93; Ross, 33 F.3d

at 1520. The defendants have identified no aspect in which

the district court’s voir dire was wanting, and our own

review of the trial transcript satisfies us that the voir dire

was “searching and thorough.” Crockett, 979 F.2d at 1216.

In this way, the defendants’ right to an unbiased jury was

20 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

protected. Moreover, the court’s instructions to the jury

during both voir dire and the trial emphasized that the

defendants were presumed innocent and that the govern-

ment bore the burden of proving them guilty beyond a

reasonable doubt. See Crockett, 979F.2d at 1216; R. 350 at

5 ¶ 10; R. 351 at 5 ¶ 10; R. 352 at 5 ¶ 10; Tr. 15, 16, 5323.6

Potential prejudice would have been further alleviated

by an appropriate cautionary instruction regarding the

anonymity of the jury. See, e.g., Crockett, 979 F.2d at 1216-

17. However, despite Judge Lindberg’s expressed willing-

ness to give such an instruction, neither Young nor any of

the other defendants reminded him to do so. Consequently,

the defendants cannot properly complain about that omis-

sion now. See Varhol v. National R.R. Passenger Corp., 909

F.2d 1557, 1567-68 (7th Cir. 1990) (en banc) (per curiam);

Palmquist v. Selvik, 111 F.3d 1332, 1343 (7th Cir. 1997). In

view of the careful voir dire, together with what we believe

to be the overwhelming evidence of defendants’ guilt, we

can discern no concrete way in which the anonymous jury

deprived the defendants of a fair trial.

C. Admission of Officer Cronin’s Testimony

Over the objections of the defense, the district court per-

mitted Chicago Police Officer Michael Cronin, a gang spe-

6

Paragraph 10(j) of the questionnaire to which each of the pro-

spective jurors was asked to respond under oath contained the

following admonition:

Under the American system of justice every defendant is pre-

sumed innocent throughout the trial. Moreover, defendants

are not required to prove anything and are entitled to put the

government to its proof. Every defendant has an absolute

right not to testify and the exercise of this right cannot be

held against a defendant.

R. 350 at 5 ¶ 10; R. 351 at 5 ¶ 10; R. 352 at 5 ¶ 10 (emphasis in

original).

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 21

cialist, to give opinion testimony regarding the history,

leadership, and operations of the Traveling Vice Lords.

Cronin testified that the TVLs controlled narcotics distribu-

tion on the west side of Chicago by means of a series of

distribution loci known as “drug spots.” Tr. 1574.7 Cronin

went on to identify a number of locations that were, in his

opinion, controlled by the TVLs, to describe how a “drug

spot” operates, and to recount disputes between various

factions of the Vice Lords over drug turf. Tr. 1575-82.

Cronin was also involved in the investigation that culmi-

nated in this prosecution; and he testified as a fact witness

regarding surveillance in which he had participated, arrests

he had made, various items of evidence that had been

recovered, and to a statement that Cox made following his

arrest. Tr. 1585-1628.

Although the defendants do not dispute Cronin’s quali-

fications as a gang expert, they maintain that his testi-

mony as to the TVLs’ involvement in narcotics distribution

amounted to inadmissible hearsay that was prejudicial in

the sense that it related to a central issue in the case.

Whereas the defendants posited that their narcotics ac-

tivities reflected multiple, unrelated conspiracies, it was the

government’s theory that the defendants were involved in

a unitary conspiracy that used the TVL organization to

distribute cocaine and heroin. That theory was reflected in

the superseding indictment, e.g., R. 133 at 2-3, as well as

the prosecution’s opening and closing statements, Tr. 19-20,

4982. In the defense view, Cronin’s testimony as to the

operation of the TVL drug distribution network went

beyond the bounds of appropriate expert testimony, because

rather than helping the jury “to understand the evidence or

7

“A drug spot will be a certain area, usually a street corner, in

the middle of the block, where [gang members involved in nar-

cotics trafficking] control the street operation, where—where

individual packets [of drugs] are sold.” Tr. 1574.

22 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

to determine a fact in issue,” Fed. R. Evid. 702, “it simply

told them that if the defendants were associated with the

TVL, they were part of a unitary conspiracy.” Defendants’

Joint Opening Br. at 36.

The defendants argue alternatively that even if Cronin’s

testimony qualified for admission under Rule 702, its po-

tential for prejudicing the defense exceeded its probative

value and therefore it should have been excluded pursuant

to Federal Rule of Evidence 403. Non-expert, eyewitness

testimony regarding the nature and operation of the TVL

distribution network was perfectly comprehensible, the

defendants insist, and so there was no need for expert

testimony to help the jury understand this evidence. At the

same time, they argue, the prejudicial effect of Cronin’s

testimony was “immense.” Defendants’ Joint Opening Br. at

39. Given his dual role as both a fact and an opinion

witness, the defense postulates that the jury may have

failed to appreciate when Cronin was testifying to facts

based on his personal knowledge and when he was merely

offering his opinion, and consequently may have given his

opinions undue weight. This danger was particularly acute,

the defendants reason, in view of the fact that the only

eyewitness testimony concerning TVL operations came from

former drug dealers who had an obvious incentive to

cooperate with the government. Thus, the jury may have

improperly looked to Cronin’s opinions as “facts” which

corroborated the testimony of these less-than-upstanding

witnesses. Although the district court gave a standard

instruction admonishing the jury that it was not obliged to

accept the opinion testimony of experts, Tr. 5328-29, the

defendants point out that the instruction did not specifically

advise the jury that Cronin’s testimony regarding the

operation of the TVL narcotics distribution apparatus

constituted opinion, rather than fact, testimony.

We find no abuse of discretion in the district court’s de-

cision to permit Cronin to testify as an expert. The average

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 23

juror is unlikely to be familiar with the operations of

narcotics traffickers or of street gangs. See, e.g., United

States v. Anderson, 61 F.3d 1290, 1297 (7th Cir.) (drug traf-

ficking), cert. denied, 516 U.S. 1000, 116 S. Ct. 543 (1995);

United States v. Johnson, 28 F.3d 1487, 1496-98 & nn. 9, 10

(8th Cir. 1994) (drug trafficking and gangs), cert. denied, 513

U.S. 1098, 115 S. Ct. 768 (1995), and cert. denied, 513 U.S.

1195, 115 S. Ct. 1263 (1995). Cronin’s testimony supplied

the jury with useful background concerning the history and

structure of the TVLs, as well as with their involvement in

narcotics activities.

At the same time, Cronin’s testimony did not invite the

jury to conclude that membership in the TVLs equated with

participation in the charged conspiracy, as the defendants

suggest. We can finding nothing in Cronin’s testimony

which suggested that all TVL members were involved in

criminal activity generally or narcotics trafficking in par-

ticular. On the contrary, Cronin agreed on cross-examina-

tion that “membership in the Vice Lord Nation is not a

crime,” Tr. 1561, and that membership in a street gang

“does not necessarily indicate that you are involved in

illegal activities,” Tr. 1643. See also Tr. 1733. In the same

vein, the district court instructed the jury that “[I]t is not

illegal to be a member of or associated with the Traveling

Vice Lords.” Tr. 5325.

Nor do we think it likely that Cronin’s dual role as expert

and fact witness would have led the jury to be confused as

to which aspects of his testimony were opinions and which

were factual in nature. Although we have acknowledged

that there is a greater danger of undue prejudice to the

defendants when a witness testifies as both an expert and

a fact witness, United States v. Doe, 149 F.3d 634, 637 (7th

Cir.), cert. denied, 525 U.S. 914, 119 S. Ct. 260 (1998), we

have also indicated that a police officer may permissibly

testify in both capacities, United States v. Lightfoot, 224

F.3d 586, 588-89 (7th Cir. 2000), cert. denied, 532 U.S. 976,

24 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

121 S. Ct. 1611 (2001). The potential for prejudice in this

circumstance can be addressed by means of appropriate

cautionary instructions and by examination of the witness

that is structured in such a way as to make clear when the

witness is testifying to facts and when he is offering his

opinion as an expert. See United States v. Lipscomb, 14 F.3d

1236, 1242 (7th Cir. 1994); United States v. Foster, 939 F.2d

445, 453 (7th Cir. 1991). In this case, the government

structured its direct examination of Cronin in such a way as

to separate his opinions as an expert from his factual

observations as an occurrence witness, compare Tr. 1569-84

with Tr. 1586-1628; and both the objections that the defense

posed at the transition from opinion to fact as well as the

remarks that the district judge made in response to those

objections served to highlight the distinction, see Tr. 1586-

88. Cronin was also extensively voir dired by the defense as

to the basis for his opinions, see Tr. 1529-32, 1542-64, which

again made clear to the jury the distinction between the two

aspects of his testimony. Finally, the court reminded the

jurors that “the fact an expert has given an opinion does not

mean that it is binding upon you or that your are obligated

to accept the expert’s opinion as to the facts.” Tr. 5329.

Under these circumstances, we see no real possibility that

the jury may have been led to mistakenly credit Cronin’s

opinions as facts.

D. Jury Instruction—Conviction or Acquittal

After outlining the two principal elements of the conspir-

acy charge for the jury, the district court gave the following

pattern instruction:

If you find from your consideration of all the evidence

that both of these propositions [have] been proved

beyond a reasonable doubt with regard to the defendant

you are then considering, then you should find that

defendant guilty.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 25

If, on the other hand, you find from your consider-

ation of all of the evidence that either of these proposi-

tions has not been proved beyond a reasonable doubt as

to the defendant you are then considering, then you

should find that defendant not guilty.

Tr. 5331. The court repeated this same instruction with

respect to each count of the indictment. Tr. 5334, 5336-37,

5338-39.

The defendants argue that the language of this instruc-

tion was flawed to the extent that it advised the jury that

it “should” rather than “must” acquit a defendant if it found

that the government had not proved the elements of the

crime charged beyond a reasonable doubt. “Should,” in the

defendants’ view, is a permissive term, suggesting that the

jury had discretion whether or not to find a defendant not

guilty even if the government had not met its burden of

proof. Of course, if it is reasonably likely that the jury

understood the instructions to permit conviction on some-

thing less than proof beyond a reasonable doubt, it consti-

tuted reversible error. See Victor v. Nebraska, 511 U.S. 1, 6,

114 S. Ct. 1239, 1243 (1994). However, the defendants did

not object to the instruction in the district court, so we may

reverse only if the flaw in the instruction, if any, amounts

to plain error. E.g., United States v. Inglese, 282 F.3d 528,

536-37 (7th Cir. 2002).

Our opinion in United States v . Kerley, 838 F.2d 932 (7th

Cir. 1988), makes clear that the language at issue was not

plainly erroneous. In that case as in this one, the defendant

argued that the use of the term “should” gave the jury

license to convict the defendant even if the government had

not established his guilt beyond a reasonable doubt. We

flatly rejected that argument:

Least of the alleged trial errors is the judge’s having

instructed the jury that they “should” rather than

“must” acquit Kerley in the event the government had

26 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

failed to prove his guilt beyond a reasonable doubt.

“Must” is preferable; but it is hardly plausible that the

jury supposed that while they “should” acquit Kerley if

he was not guilty beyond a reasonable doubt, they

didn’t have to acquit him if they didn’t want to. Juries

know better than that. We add that the judge also said

that the jury “should,” not “must,” convict Kerley if they

found that he was guilty beyond a reasonable doubt. In

context, “should” was imperative—not hortatory—

throughout the instruction.

Id. at 940. Although the defendants suggest that the Su-

preme Court’s opinions in Sullivan v. Louisiana, 508 U.S.

275, 113 S. Ct. 2078 (1993), and Victor have undermined

our decision in Kerley, we disagree. The instruction at issue

here did not mis-describe the burden of proof, as was the

case in Sullivan, see 508 U.S. at 277-78, 113 S. Ct. at 2080-

81. The jury was properly informed that the government

was obliged to prove the defendants guilty beyond a rea-

sonable doubt. Tr. 5323. Moreover, the Court in Victor

described the constitutional question raised by flawed

language regarding the burden of proof as “whether there

is a reasonable likelihood that the jury understood the

instructions to allow conviction based on proof insufficient

to meet the Winship [reasonable doubt] standard. 527 U.S.

at 6, 114 S. Ct. at 1243; see In re Winship, 397 U.S. 358, 90

S. Ct. 1068 (1970). That is the very question we answered

in Kerley vis à vis use of the term “should”—and we found

it implausible that the jury believed acquittal was optional

if the government failed to meet its burden of proof. 838

F.2d at 940; see also United States v. Ray, 238 F.3d 828,

834-35 (7th Cir.), cert. denied, 532 U.S. 1045, 121 S. Ct. 2014

(2001). Accordingly, we find no plain error in the language

of this instruction.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 27

E. Multiple Conspiracies Instruction

As we have noted, it was the defense theory in this case

that the defendants had not joined a unitary conspiracy but

at most had participated in a number of smaller, unrelated

conspiracies. The district court delivered the following

instruction on the subject of multiple conspiracies:

The indictment charges that the defendants partici-

pated in a single conspiracy to distribute illegal narcot-

ics.

Proof that there were multiple conspiracies is not

necessarily proof of a single conspiracy, nor is it neces-

sarily inconsistent with the existence of a single con-

spiracy.

If you do not find beyond a reasonable doubt that a

particular defendant was a member of any conspiracy,

you should find that defendant not guilty of Count 1

[the conspiracy charge].

If you find beyond a reasonable doubt that there was

one overall conspiracy as alleged in Count 1, and that

a particular defendant was a member of that conspir-

acy, then you should find that defendant guilty of

Count 1.

If you find beyond a reasonable doubt that there were

two or more conspiracies, and that a particular defen-

dant was a member of or aided and abetted one or more

conspiracies, you may find that defendant guilty of

Count 1, if you further find beyond a reasonable doubt

that this proven conspiracy was included within the

conspiracy alleged in Count 1.

If, on the other hand, the proven conspiracy is not

included within the conspiracy alleged in Count 1, you

should find the defendant not guilty of Count 1.

Tr. 5332-33. The defendants argue that this instruction

deprived them of their Fifth Amendment right to due

28 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

process, and to their Sixth Amendment right to trial by

jury, because although it required each juror to find that a

defendant had participated either in the conspiracy alleged

in the indictment or a lesser conspiracy included within the

charged conspiracy, it did not state that the members of the

jury must agree on which conspiracy the defendant had

joined.

As the defendants acknowledge, however, we approved a

virtually identical instruction in United States v. Wilson,

134 F.3d 855, 865 (7th Cir.), cert. denied, 525 U.S. 894, 119

S. Ct. 216 (1998). We noted:

[The instruction] informed the jury that, if it found that

a defendant was a member of a conspiracy that consti-

tuted a sub-part of the conspiracy charged in the

indictment, then it should find that defendant guilty.

The jury’s finding of guilt therefore concluded that the

[defendants] were members of a conspiracy and that, at

a minimum, this conspiracy was part of the single

conspiracy alleged by the Government.

Id. at 865. That the jurors were not informed they must

agree on exactly which conspiracy the defendant agreed to

join does not present a constitutional problem. Even if the

jurors were of different minds as to the precise parameters

of the conspiracy, the instruction required them all to agree

that the defendant joined a conspiracy that was within the

ambit of the conspiracy alleged in the indictment. In short,

with respect to the essential elements of the crime (the

existence of a conspiracy, and the defendant’s agreement to

join it), the instruction appropriately required unanimity.

See Richardson v. United States, 526 U.S. 813, 817, 119 S.

Ct. 1707, 1710 (1999).

Moreover, even if the instruction were defective as the

defendants suggest, the error was harmless. The evidence

overwhelmingly demonstrated that the defendants partici-

pated in a unitary conspiracy to traffic in narcotics, pursu-

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 29

ant to which Bahman and Mohammad Mansoori supplied

the drugs to Young, who in turn, with the assistance of Cox

and Choice, distributed them through a network of drug

spots.

F. Failure to Submit Drug Quantity to Jury

The district court sentenced defendants Young, Mo-

hammad Mansoori, Cox, and Choice to terms of life impris-

onment based on its finding that they conspired to distrib-

ute more than 150 kilograms of cocaine. See, e.g., R. 745-3,

Young Sentencing Tr. 35-37; R. 730, Cox Sentencing Tr. 21,

23-24; R. 748, Choice Sentencing Tr. 17-18. The various

subsections of 21 U.S.C. § 841(b)(1) set forth a number of

different minimum and maximum sentences depending on

the amount of drugs involved, and subsection (A) specifies

a maximum prison term of life for narcotics offenses in-

volving five or more kilograms of cocaine or one or more

kilograms of heroin. However, pursuant to the Supreme

Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000), the indictment must allege, and a

jury must unanimously find, that the offense involves that

threshold amount before the court may sentence a defen-

dant to the life term authorized by section 841(b)(1)(A). See,

e.g., United States v. Smith, 241 F.3d 546, 547 (7th Cir.),

cert. denied, 122 S. Ct. 267 (2001). In the absence of a jury

finding, the default statutory maximum for cases in which

no particular quantity of narcotics is proven—the twenty-

year maximum provided for in section 841(b)(1)(C)—

applies.8 In this case, the jury was not asked to decide

whether the conspiracy involved any particular drug

amount; on the contrary, the court instructed the jury that

“[t]he Government does not have to prove the amount of

8

The district court sentenced Bahman Mansoori to a term of 170

months, which is of course below the default maximum of twenty

years. Accordingly, his sentence is unaffected by Apprendi.

30 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

controlled substances alleged in the indictment,” Tr. 5335,

but rather it need only determine that the offenses charged

in Count 1 (the conspiracy charge) and Count 2 (a substan-

tive charge of distribution against defendants Young and

Choice) involved “a measurable amount” of narcotics, id.

Accordingly, the district court, which sentenced the defen-

dants before the Supreme Court decided Apprendi, erred in

imposing any sentence in excess of the default maximum of

twenty years. As this issue was not raised below, however,

the mistake must qualify as “plain” before the defendants

are entitled to relief. United States v. Nance, 236 F.3d 820,

823-24 (7th Cir. 2000), cert. denied, 122 S. Ct. 79 (2001).

Because we do not believe that the sentencing error

affected the fairness, integrity, or public reputation of the

proceedings below, see United States v. Johnson, 520 U.S.

461, 467, 117 S. Ct. 1544, 1549 (1997), we conclude that the

error does not constitute “plain” error. Having reviewed the

record, we are convinced that upon a properly worded

indictment, a properly instructed jury would have found the

defendants guilty of distributing the requisite threshold

quantities of narcotics. See Nance, 236 F.3d at 825-26. The

jury convicted the defendants on the conspiracy charge, and

the record leaves no doubt that the conspiracy involved the

distribution of far more than five kilograms of cocaine

and/or one kilogram of heroin. Indeed, the trial evidence

readily confirms the trial court’s finding that the defen-

dants who received life terms were responsible for the

distribution of at least 150 kilograms of cocaine. For ex-

ample, co-conspirator Billy Carter testified that in 1994 he

and Young had retrieved a twenty- to thirty-kilogram quan-

tity of cocaine from Mohammad Mansoori—whom Carter

knew as “Moe”—, which cocaine was then passed along in

five- or ten-kilogram quantities to other TVL members,

including defendants Cox and Choice. Tr. 690-97. Carter

said that he retrieved comparable quantities of cocaine

from Mansoori more than five times in 1994 and 1995. Tr.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 31

1052-53. Carter further testified that he alone was distrib-

uting three to five kilograms of cocaine per week in 1992,

and five to ten kilograms weekly in 1993 and 1994—which

yields a total of several hundred kilograms. Tr. 1119-22.9 In

a similar vein, Leslie Teague testified that he and co-

conspirator Andre Donaldson obtained about five kilograms

of cocaine per week from Young during the first few months

of 1994 for distribution in the Quad Cities area of Illinois.

Tr. 2090. (Carter testified that he and Choice delivered ten

kilograms of cocaine to Teague on one occasion in 1993 or

1994. Tr. 696-99.) The evidence concerning heroin distribu-

tion similarly confirms that the conspirators were dealing

in large quantities. TVL member Anthony Buchanan, for

example, who shared a drug spot with Carter, testified that

he obtained quantities of between 100 and 800 grams of

heroin from Mohammad Mansoori and his “runner” John

Hunt once or twice weekly in 1996. Tr. 1844-50. Carter

testified that he was distributing 100 grams of heroin per

day in that same year. Tr. 1117-18. Terry Bronson testified

that Choice had him deliver 2.4-gram “packs” of heroin

(twenty-four bags, each containing 0.1 gram of heroin) to

the Henry Horner Homes on a daily basis from February to

October 1996 (yielding a total of more than 500 grams). Tr.

342-43. Thus, the evidence before the jury consistently and

overwhelmingly demonstrated that the defendants were

distributing cocaine and heroin on a very large scale. In

view of that evidence, there can be no doubt that the jury

would have found that the offense involved the threshold

amount of five kilograms of cocaine and/or one kilogram of

heroin as necessary to authorize prison terms of life for

defendants Young, Mohammad Mansoori, Cox, and Choice.

See Nance, 236 F.3d at 826.

9

Carter, however, after pleading guilty and cooperating with the

government, was sentenced on a cocaine quantity of only 50 to 150

kilograms. See Tr. 1123-24.

32 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

G. Erroneous Life Sentences on Count Two

Count Two of the superseding indictment charged Young

and Choice (among others) with the distribution of one

kilogram of cocaine in the October 31, 1996 transaction

described at the outset of this opinion. R. 133 at 5. Pursu-

ant to 21 U.S.C. § 841(b)(1)(B)(ii), the maximum prison

term that could ever be imposed on this count was forty

years because the underlying conduct involved more than

500 grams of cocaine but less than five kilograms. The

district court, however, erroneously sentenced Young and

Choice to life terms on this count. The government concedes

the error. Gov. Br. 56 & n.28. Accordingly, we shall remand

the case to the district court for re-sentencing on this count.

Because the jury was not asked to determine whether the

defendants were responsible for distributing anything more

than a “measurable amount” of cocaine, Tr. 5335, in accord

with Apprendi the district court on remand may not impose

a sentence in excess of twenty years on Count 2. See 21

U.S.C. § 841(b)(1)C). It may well be true, as the Govern-

ment contends, that the jury inevitably would have found

Young and Choice responsible for distributing a kilogram of

cocaine, thus triggering the forty-year maximum, had it

only been asked to do so. That point would only be relevant,

however, if we were deciding whether a forty-year term,

imposed without the quantity finding that Apprendi re-

quires, amounted to harmless error. In this case, because

the district court imposed a life term on Count 2 (a term

that would be erroneous regardless of whether the jury had

found the defendants named in this count responsible for a

kilogram quantity of cocaine), re-sentencing is mandated.

When it imposes the new sentence, the district court will of

course be obliged to honor Apprendi. Because the jury did

not render a quantity finding, as Apprendi requires, the

maximum term that the district court may impose on

remand is the default maximum term of twenty years

specified in section 841(b)(1)(C).

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 33

H. Erroneous Special Assessments

The district court imposed special assessments of $100 as

to Mohammad Mansoori on Counts 3 through 13 and Young

on Count 14. Because these monetary offenses were com-

mitted prior to April 24, 1996 (see R. 133 at 6, 8), when the

applicable special assessment was raised from $50 to $100,

only a $50 special assessment could be imposed. E.g.,

United States v. Gricco, 277 F.3d 339, 363-64 (3rd Cir. 2002);

United States v. Prather, 205 F.3d 1265, 1272 (11th Cir.),

cert. denied, 531 U.S. 879, 121 S. Ct. 188 (2000). Accord-

ingly, we shall also remand for re-sentencing in this regard

as well.

I. Admissibility of Cox’s Post-Arrest Statement

After a federal grand jury indicted Cox and his co-defen-

dants, a federal warrant was issued for his arrest. At 10

p.m. on a Saturday evening, Chicago police officers arrested

Cox on that warrant. Chicago police officer and gang

specialist Michael Cronin (who had participated in the

investigation that culminated in Cox’s arrest) interviewed

Cox later that evening and obtained a waiver of Cox’s

Miranda rights. Tr. 1607-13. Cox eventually admitted to

Cronin that he was a high-ranking TVL member who was

involved in the distribution of cocaine on Chicago’s west

side. Tr. 1609-12. The Chicago Police Department has

special rules and procedures that apply when an individual

is arrested pursuant to a warrant issued by another jur-

isdiction. See Tr. 1612-13. Apparently because Cox’s arrest

took place on the weekend, it took some time to comply

with these rules, and Cox was not turned over to federal

authorities until the following Monday morning, at 7:00

a.m. Cox arrived at the Dirksen Federal Building in

Chicago at approximately 7:30 a.m. Apparently, when the

government inquired into the possibility of bringing Cox

before a judicial officer, Judge Lindberg’s chambers in-

34 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

structed the government to bring him before Judge Lind-

berg that afternoon at 1:30. At approximately 8:30 a.m.,

Officer Robert Grapenthein (another Chicago police offer

and gang specialist who had been detailed to the FBI gang

task force and who had participated in the investigation of

this case) played for Cox some of the incriminating tapes

produced by the government’s surveillance and then pro-

ceeded to interview him. Cox again waived his Miranda

rights and again confessed his involvement with the TVL

and with narcotics distribution. Tr. 1446-53, 1456-58. Not

until 1:30 p.m. that afternoon, some 39 hours after his

arrest, did Cox appear before a judicial officer (Judge Lind-

berg) for arraignment. R. 259.

Because Cox made his second confession more than thirty

hours after his arrest and before the government brought

him before a judicial officer, Cox moved to suppress the

confession. In relevant part, Federal Rule of Criminal Pro-

cedure 9(c)(1), which deals with the execution of federal

warrants, requires that an individual arrested on a warrant

be taken before a judicial officer promptly:

The officer executing the warrant shall bring the ar-

rested person without unnecessary delay before the

nearest available federal magistrate judge or, in the

event that a federal magistrate judge is not reasonably

available, before a state or local judicial officer autho-

rized by 18 U.S.C. § 3041.

(Rule 5(a) sets forth a similar requirement for an arrest

pursuant to a warrant issued upon a complaint.) In

McNabb v. United States, 318 U.S. 332, 344-47, 63 S. Ct.

608, 614-16 (1943), and again in Mallory v. United States,

354 U.S. 449, 455-56, 77 S. Ct. 1356, 1360 (1957), the Su-

preme Court held that unreasonable pre-interview delays

in arraigning the defendants (two days in McNabb, seven

hours in Mallory) rendered the confessions made on the

heels of and as a result of those delays inadmissible at trial.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 35

In the wake of Mallory, Congress established a six-hour

“safe harbor” for post-arrest statements:

In any criminal prosecution by the United States . . . a

confession made or given by a person who is a defen-

dant therein, while such person was under arrest or

other detention in the custody of any law enforcement

officer or law enforcement agency, shall not be inadmis-

sible solely because of delay in bringing such person

before a magistrate judge or other officer empowered to

commit persons charged with offenses against the laws

of the United States . . . if such confession is found by

the trial judge to have been made voluntarily and if the

weight to be given the confession is left to the jury and

if such confession was made or given by such person

within six hours immediately following his arrest or

other detention . . . .

18 U.S.C. § 3501(c). A voluntary confession that occurs

within this six-hour “safe harbor” is therefore admissible

notwithstanding a delay in bringing the defendant before a

judicial officer. This provision embraces Cox’s first confes-

sion (to Cronin) but not his second (to Grapenthein), which

occurred more than thirty hours after his arrest but before

he was arraigned. A voluntary confession that occurs after

the six-hour safe-harbor period may be inadmissible pur-

suant to McNabb, Mallory, and their progeny. Exclusion is

not automatic but discretionary, turning on “a congeries of

factors, including such elements as the deterrent purpose of

the exclusionary rule, the importance of judicial integrity,

and the likelihood that admission of evidence would

encourage violations of the Fourth Amendment.” United

States v. Gaines, 555 F.2d 618, 623-24 (7th Cir. 1977); see

also United States v. Spruill, 296 F.3d 580, 590 (7th Cir.

2002).

The district court denied Cox’s motion to suppress for two

reasons. First, the court reasoned that because Cox had

been in federal custody for less than six hours at the time

36 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

he gave his statement to Grapenthein, his confession fell

within the safe harbor notwithstanding the period of time

he spent in the custody of the Chicago police before he was

handed over to federal officials. R. 332. Second, the court

found that Cox had not been detained in state custody as

long he was in order to help federal officials to obtain a

confession from him. Id.; cf. Gaines, 555 F.2d at 625 (if

defendant had shown that federal agents colluded with local

police to keep in custody in order to obtain a confession

from him, suppression would be required).

The first of these reasons was erroneous as a matter of

law. As the government rightly points out, the six-hour

clock begins to run for purposes of section 3501(c) when the

individual is arrested or otherwise detained for a violation

of federal law, not when he is taken into federal custody.

United States v. Alvarez-Sanchez, 511 U.S. 350, 358, 114 S.

Ct. 1599, 1604 (1994); compare United States v. Rowe, 92

F.3d 928, 932-33 (9th Cir. 1996) (defendant initially taken

into custody on state charge), cert. denied, 519 U.S. 1100,

117 S. Ct. 785 (1997). Although it was the Chicago police

who arrested Cox, they did so pursuant to a federal arrest

warrant. Consequently, the statutory clock began to run on

Saturday evening, when Cox was arrested, not on Monday

morning, when he was transferred to federal custody. As

the clock had been running for approximately thirty-six

hours by the time Cox confessed his culpability to Grapen-

thein, his confession is not protected by the statutory safe

harbor.

We must, consequently, consider the reasons for the ad-

ditional delay (that is, beyond the six-hour safe-harbor

period) in bringing Cox before a judicial officer and whether

that delay was reasonable, along with the other factors

cited by Gaines. The government notes that the bulk of the

delay was due to the fact that Cox was arrested on a

Saturday evening by the Chicago police, whose rules re-

garding arrests on warrants issued by other jurisdictions

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 37

required additional processing time before he was released

into federal custody. Once Cox was turned over to federal

officials, the government notes, it inquired about bringing

him before a judicial officer and was instructed by Judge

Lindberg to present him for arraignment at 1:30 p.m.

Further, there are no allegations that Cox was in any way

subject to the kind of “third degree” interrogation tactics

that concerned the Supreme Court in McNabb. Finally, in

view of the district court’s finding that the delay in arraign-

ing Cox was not due to a desire to secure his confession, the

government argues that exclusion of his statement to

Grapenthein would not serve the deterrent purposes of the

exclusionary rule.

Although we accept the district court’s finding that there

was no coordinated effort between state and federal officials

designed to keep him in state custody for a prolonged period

in order to facilitate his confession,10 we are nonetheless

troubled by the decision to interview him for a second time

well outside of the safe-harbor period and before he was

finally arraigned. By the time Grapenthein interviewed Cox

on Monday morning, the government was aware that Cox

had been in custody for more than thirty hours, that he had

not yet seen a judicial officer, and that he would not be

arraigned until that afternoon. Nonetheless, the govern-

ment evidently made a deliberate decision to interview Cox

10

As Cox points out, the district court did not hold an evidentiary

hearing in order to explore the circumstances surrounding his

arrest and detention, the interrogations by Cronin and Grapen-

thein, and, in particular, the reasons for the delay in bringing Cox

before a judicial officer. Still, Cox has not challenged the reasons

that the government has articulated for the delay in his arraign-

ment, nor has he alleged that there are facts other than the delay

(e.g., coercive interview tactics) which bear on the admissibility of

his confession. Consequently, we have no reason to question the

district court’s finding that the delay was not motivated by a

desire to extract a confession from Cox.

38 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

at that time, rather than wait until he had been arraigned.

Perhaps the government, but for the district court’s decision

to have Cox arraigned that afternoon, would have brought

him before a duty magistrate that morning (certainly there

was one available) and interviewed him following the

arraignment. But once instructed by the district court to

present Cox that afternoon, and in the absence of any

apparent exigency necessitating an immediate interview,

the advisable course would have been to put the interview

on hold until Cox had been arraigned. The prompt-appear-

ance requirement serves to protect the defendant’s rights

and to interpose a check on law enforcement zeal by

ensuring the timely intervention of a judicial officer who

can confirm that the defendant has been advised of his

rights, that he has been detained on probable cause, and so

on. See McNabb, 318 U.S. at 343-44, 63 S. Ct. at 614-15.

That purpose was not served by the decision to interview

Cox at a point when there had already been a substantial

delay in bringing him before a judicial officer and his be-

latedly scheduled appearance was but a few hours hence.

We impute no actual motives to the government that were

malevolent; but objectively the decision to proceed with the

interview on Monday morning was unreasonable, and in the

absence of a more developed record as to the circumstances

surrounding that decision, it gives rise to an impression

that the government was attempting to take advantage of

the delay in arraigning Cox. Under these circumstances, the

decision to elicit a second statement from Cox appears

improper. At the same time, exclusion of this statement

would serve efficaciously the deterrent purposes of the

exclusionary rule by encouraging the government to bring

an arrested individual before a magistrate or judge more

promptly. See generally Arizona v. Evans, 514 U.S. 1, 10-11,

115 S. Ct. 1185, 1191 (1995); United States v. Leon, 468

U.S. 897, 918-20 & n.20, 104 S. Ct. 3405, 3418-19 & n.20

(1984); see also, e.g., McNabb, 318 U.S. at 344-45, 63 S. Ct.

at 615; United States v. Wilbon, 911 F. Supp. 1420 (D. N.M.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 39

1995). Based on the record before us, we therefore find that

the admission of Cox’s second confession (to Grapenthein)

was erroneous; that confession should have been sup-

pressed.

Under the circumstances, however, we find the error to be

harmless. As we have noted, Cox confessed his involvement

in narcotics distribution not only to Grapenthein, but to

Cronin, who interviewed him on Saturday evening shortly

after his arrest, within the six-hour safe harbor. Cox’s first

confession was recounted by Cronin at trial, and Cox does

not contest the admissibility of that confession. The first

confession overlapped in material respects with the second.

Compare Tr. 1443-58 with Tr. 1607-13, 1637-41. Indeed, in

objecting to Cronin’s testimony regarding the first confes-

sion (as it turned out, Cronin testified after Grapenthein

did), Cox’s counsel argued that Cronin’s testimony was

unnecessary to the government’s case in view of the overlap.

Tr. 1516-17. Accordingly, the second confession, although

inadmissible for the reasons we have discussed, did not

unduly prejudice Cox. See Boles v. Foltz, 816 F.2d 1132,

1135-36 (6th Cir.) (even if it was error to admit second

confession elicited improperly after defendant had re-

quested attorney, error was harmless because, inter alia,

second confession was cumulative of first), cert. denied, 484

U.S. 857, 108 S. Ct. 167 (1987).

J. Cox’s Post-Arrest Statement and Young’s Confrontation

Rights

Among other things, Cox’s post-arrest confession to

Grapenthein indicated that he was assigned responsibility

for cocaine sales in a particular area of Chicago by “mem-

bers within the Traveling Vice Lords that were above him.”

Tr. 1451. Grapenthein, of course, repeated this statement

at trial. Id. Before Grapenthein testified, the court in-

structed the jury to consider his testimony about Cox’s

40 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

statement “only in connection with the Government’s case

against Defendant Mark Cox.” Tr. 1443. Again in the final

jury charge, the court admonished the jury to consider Cox’s

confession “only with regard to the Defendant Mark Cox

and not against any other defendant.” Tr. 5326. Young

nonetheless argues that the admission of Cox’s confession

ran afoul of Bruton v. United States, 391 U.S. 123, 88 S. Ct.

1620 (1968). Young reasons that Cox’s reference to the TVL

members “above him” necessarily inculpated Young, be-

cause Young was the only indicted TVL member who was

superior to Cox in the gang’s hierarchy. Young asked the

district court to declare a mistrial on the basis of Bruton,

but the court denied the motion.11

The admission of Cox’s post-arrest statement did not run

afoul of Bruton. Bruton held that the admission into evi-

dence of a co-defendant’s confession violates the defendant’s

rights under the Confrontation Clause of the Sixth Amend-

ment when the confession incriminates the defendant as

well. 391 U.S. at 135-36, 88 S. Ct. at 1627-28. However, as

the Court’s subsequent opinion in Richardson v. Marsh

makes clear, the co-defendant’s confession must implicate

the defendant directly to give rise to a Bruton violation. 481

U.S. 200, 208, 107 S. Ct. 1702, 1707-08 (1987). If the

confession incriminates the defendant only “when linked

with evidence introduced later at trial,” id. at 208, 107 S.

Ct. at 1707, then a limiting instruction confining the jury’s

consideration of the statement to the confessing co-defen-

11

It is not entirely clear from the trial transcript that Young

articulated the particular Bruton theory that he pursues now at

the time he moved for a mistrial in the district court. See Tr. 1455.

But the government has elected to address the merits of his

current Bruton theory rather than contend that he forfeited that

theory by failing to argue it below. The government has therefore

waived any contention based on forfeiture or waiver. See, e.g.,

United States v. Buchmeier, 255 F.3d 415, 419 (7th Cir.), cert.

denied, 122 S. Ct. 505 (2001).

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 41

dant likely will suffice to protect the defendant’s rights. Id.

at 208, 211, 107 S. Ct. at 1708, 1709; see also, e.g., United

States v. Chrismon, 965 F.2d 1465, 1471-73 (7th Cir. 1992).

That is the case here. Cox’s statement implicated Young

indirectly at best. Cox’s reference to persons “above him” in

the TVL hierarchy did not point unambiguously to Young.

Only in light of other evidence revealing Cox to have been

superior to Young in the TVL hierarchy might the jury have

inferred that Young was among the individuals that

assigned Cox his territory. Even then, the inference was not

inevitable—by referring to multiple TVL “members” who

gave him his authority, Cox did not purport to single out

any particular individual. Under the circumstances, the

district court’s instructions limiting consideration of Cox’s

confession to Cox alone was sufficient to protect Young.

K. Denial of Bahman Mansoori’s Motion to Sever

Bahman Mansoori asked the district court to sever his

trial from that of the other defendants. His argument then,

as now, was that the evidence against the other defendants

was much stronger than it was against him, and that he

faced a particular danger of the jury inferring guilt by

association in view of the fact that his brother Mohammad

played a key role in the conspiracy as the individual who

supplied narcotics to Young and there was also evidence

that another Mansoori brother was also involved in drug

trafficking. The district court denied the motion to sever,

reasoning that the jury was capable of assessing the guilt

or innocence of each defendant independently at a joint trial

and that severance would require the government to

duplicate much of its case at multiple trials. R. 742-1,

12/18/97 Tr. at 67-68; R. 301. We review the district court’s

decision for abuse of discretion. E.g., United States v.

Wilson, 237 F.3d 827, 835 (7th Cir.), cert. denied, 122 S. Ct.

97 (2001). In order to secure a new trial, the defendant

must demonstrate that the joint trial caused him “actual

42 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

prejudice,” i.e., that he was deprived of a fair trial by virtue

of the district court’s refusal to sever. Id.

The district court did not abuse its discretion in denying

Bahman’s motion. As the government points out, Bahman

did not join the conspiracy until November 1996, and it is

his late joining that accounts for the fact that there was

less evidence regarding his participation than there was

against the other co-defendants. But the evidence leaves no

doubt that he was a full participant in the conspiracy once

he joined. A number of the tape recorded conversations

among members of the conspiracy reveal Bahman discuss-

ing various narcotics transactions, for example. John Hunt

also testified that he had picked up narcotics from Bahman

at Bahman’s apartment, and had dropped off payments

there as well. The cases affirming joint trials under such

circumstances, notwithstanding the different degrees of

involvement among various co-conspirators and the differ-

ent magnitudes of evidence against each defendant, are

legion. E.g., United States v. Smith, 995 F.2d 662, 671 (7th

Cir. 1993), cert. denied, 510 U.S. 1056, 114 S. Ct. 718

(1994); United States v. Goines, 988 F.2d 750, 781 (7th Cir.),

cert. denied, 510 U.S. 887, 114 S. Ct. 241 (1993), and cert.

denied, 510 U.S. 982, 114 S. Ct. 483 (1993), and cert.

denied, 510 U.S. 985, 114 S. Ct. 558 (1993); United States

v. Cochran, 955 F.2d 1116, 1120-21 (7th Cir.), cert. denied,

506 U.S. 972, 113 S. Ct. 460 (1992); United States v. Pace,

898 F.2d 1218, 1245-46 (7th Cir.), cert. denied, 497 U.S.

1030, 110 S. Ct. 3286 (1990), and cert. denied, 498 U.S. 878,

111 S. Ct. 210 (1990); United States v. Briscoe, 896 F.2d

1476, 1516-17 (7th Cir.), cert. denied, 498 U.S. 863, 111 S.

Ct. 173 (1990). Bahman has not demonstrated that there

was such a great disparity in the evidence that he could not

have received a fair trial without a severance. See United

States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir. 1988),

cert. denied, 492 U.S. 908, 109 S. Ct. 3221 (1989). The

district court properly instructed the jury to consider each

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 43

defendant’s culpability separately, Tr. 977-78, 5326-27, and

we presume that the jury followed that instruction, see,

e.g., United States v. Thompson, 286 F.3d 950, 968 (7th Cir.

2002).

L. Admission of Tape Recordings and English Translations

of Telephone Conversations in Farsi

Among the intercepted and recorded conversations that

the district court admitted into evidence at trial were a

series of conversations in Farsi. FBI language specialist

Behrooz Sarshar listened to these recordings over a period

of two months and prepared English translations of the

conversations that were also introduced into evidence at

trial. The transcripts identified Mohammad and Bahman

Mansoori as participants in these conversations. Sarshar

testified that having listened to the tapes over a two-month

period, and having heard the two Mansoori brothers speak

at a court proceeding that took place in advance of trial, he

was able identify the voices on the tapes as belonging to

Mohammad and Bahman Mansoori. Tr. 2491-2501; see also

Tr. 2627. The Mansooris contend that the tape recordings

and translations were inadmissible because, in their view,

Sarshar lacked an adequate basis upon which to identify

the voices on the recordings as theirs.

We believe that the tapes and translations were properly

admitted. Federal Rule of Evidence 901(b)(5) permits a

witness to identify a voice “based upon hearing the voice at

any time under circumstances connecting it with the al-

leged speaker.” (Emphasis supplied.) Nothing in the rule,

therefore, would preclude a witness from identifying the

participants in a tape-recorded conversation based on lis-

tening to those individuals participate in a court proceed-

ing. Granted, Sarshar only had one opportunity to hear

Bahman and Mohammad Mansoori speak in a setting that

disclosed their identities. However, we have held that an

44 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

individual’s “minimal familiarity” will suffice to permit him

to identify a speaker’s voice. United States v. Saulter, 60

F.3d 270, 276 (7th Cir. 1995); United States v. Degaglia, 913

F.2d 372, 376 (7th Cir. 1990); United States v. Alvarez, 860

F.2d 801, 809 (7th Cir. 1988), cert. denied, 493 U.S. 829,

110 S. Ct. 97 (1989). Having reviewed the record, we are

inclined to agree with the Mansooris that the basis for

Sarshar’s identification was relatively weak. Yet, we cannot

say as a matter of law that the brief opportunity Sarshar

had to hear the defendants in court was insufficient to

permit his voice identification. The accuracy of his identifi-

cation, of course, was a question for the jury, e.g., Degaglia,

913 F.2d at 376 n.3, and the jury was properly advised on

that point, Tr. 5341-42.

Moreover, as the government points out, other evidence

circumstantially supported Sarshar’s attributions. See

Alvarez, 860 F.2d 809. First, co-conspirator John Hunt iden-

tified the Mansoori brothers as the speakers in one of the

conversations in which he had participated. Tr. 2702-03.

Moreover, Officer Grapenthein had heard Mohammad

Mansoori conduct a number of conversations in English on

the same phone from which the Farsi conversations were

intercepted, Tr. 2347, and for that reason one might rea-

sonably infer (as he did) that Mohammad Mansoori was one

of the participants in the Farsi conversations. Indeed, the

subscriber for the telephone from which the Farsi conversa-

tions were intercepted was listed as “Anthony Mirabelli,” a

name that the evidence revealed to be an alias used by

Mohammad Mansoori; and a bill for that telephone was

found in a search of Mohammad’s home. Tr. 2294-95, 3365-

68. Finally, a number of the intercepted conversations in

Farsi were placed from a cellular telephone that was dis-

covered in Bahman Mansoori’s apartment and for which

service had been arranged by Bahman’s girlfriend. Tr. 2357-

58, 3203-06, 3536-3538, 3632-35.

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 45

M. Evidence of Prior, Narcotics-Related Forfeiture of Mo-

hammad Mansoori’s Assets

In 1990, an undercover Illinois state police officer ar-

ranged to sell 60 kilograms of cocaine to Jamshid Mansoori

(brother to Mohammad and Bahman) for $1.3 million.

When the officer arrived at a pre-arranged location to con-

summate the deal, Jamshid indicated that he had only

$350,000 with him, but that his brother would be arriving

shortly with the balance of the purchase money. Mo-

hammad joined the other two thereafter and displayed a

gym bag to the officer containing many bundles of currency.

Jamshid and Mohammad Mansoori were arrested and

charged with narcotics trafficking, and eventually they

pleaded guilty. Pursuant to the plea agreement, they

forfeited the two automobiles that they had driven to the

meeting with the undercover officer, some $263,000 in cash,

and “several hundred items of jewelry.” Tr. 2979.

The district court admitted testimony concerning the 1990

offense and Mohammad’s forfeiture of assets pursuant

to his guilty plea under Federal Rule of Evidence 404(b).

The court instructed the jury that this testimony was

admitted insofar as it bore upon Mohammad’s intent to

conspire to distribute narcotics and on his ability, intent,

and knowledge to launder drug proceeds, and that the

evidence was to be considered in these respects alone. Tr.

2969. The undercover officer who participated in the trans-

action then briefly described the details of the crime and

Mohammad’s forfeiture of assets. Tr. 2969-79. An expert in

the field of jewelry appraisal later testified as to the value

of the approximately fifty pieces of jewelry that had been

seized from Mohammad’s home (which was among the

jewelry that was forfeited). Tr. 3482-3494. Although Mo-

hammad does not challenge the testimony regarding the

nature of the 1990 transaction, he contends that the district

court erred when it allowed evidence regarding his forfei-

ture of assets and the value of the jewelry found in his

46 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

home at the time of the 1990 offense. We review the district

court’s decision for abuse of discretion. E.g., United States

v. Best, 250 F.3d 1084, 1090 (7th Cir.), cert. denied, 122 S.

Ct. 279 (2001).

We find no abuse of discretion in the admission of this

testimony. The district court found that the forfeiture evi-

dence was admissible in part to demonstrate Mohammad’s

ability to engage in substantial drug transactions involving

large amounts of money. R. 339. As the government’s case

against Mohammad here posited that he was supplying his

co-conspirators with large sums of narcotics, we have

no quarrel with the district court’s assessment. See, e.g.,

United States v. Denberg, 212 F.3d 987, 994 (7th Cir. 2000)

(evidence of prior drug trafficking admissible to show, inter

alia, defendant’s ability to traffic in significant quantities of

narcotics); United States v. Shields, 999 F.2d 1090, 1099 (7th

Cir. 1993) (evidence of defendant’s prior payments to judge

relevant “because it demonstrated he had the ability,

willingness, and chutzpah to bribe a judge”), cert. denied,

510 U.S. 1071, 114 S. Ct. 877 (1994); United States v.

Chaverra-Cardona, 879 F.2d 1551, 1555 (7th Cir. 1989)

(evidence of defendant’s finances was probative of his

resources and ability to carry out charged murder-for-hire

schemes). The jury was properly instructed as to the limited

purposes for which this evidence was offered, and given that

the state police officer’s testimony about the 1990 forfeiture

occupied no more than one page among the several thou-

sand pages of the trial transcript, see Tr. 2979, we discern

the likelihood of undue prejudice to Mohammad as slight.

Cf. United States v. Macias, 930 F.2d 567, 572 (7th Cir.

1991) (where Rule 404(b) testimony was “brief and non-

inflammatory in nature,” risk of prejudice was minimized).

As for the value of the jewelry seized in 1990, Mohammad’s

sole argument is that the value was irrelevant absent proof

that he himself had purchased the jewelry. As the district

court observed, however, it is at least a fair inference that

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 47

Mohammad had purchased the jewelry given that it had

been found in his possession. Tr. 3544.

N. Requested Recusal of District Judge

In advance of trial, Young filed a motion in which the

other defendants subsequently joined asking the district

judge to recuse himself pursuant to 18 U.S.C. § 455 for two

reasons: (1) the judge’s daughter was dating an agent of the

U.S. Drug Enforcement Administration (“DEA”); and (2) his

daughter, as an employee of the Chicago Crime Commis-

sion, was writing a book about gangs and drugs. R. 285; see

Tr. 742-1, 12/18/97 Tr. 8. The judge denied the motion,

concluding that neither his daughter’s relationship with the

DEA agent nor her work for the Crime Commission reason-

ably called into question his ability to be impartial in this

case. Id. at 9-10. The judge observed that he had met the

DEA agent that his daughter was dating on three or four

occasions, that the agent had no involvement with this case,

that the DEA generally had nothing more than a tangential

involvement with this case, and that the judge had not

discussed the case with him. Id. at 11; R. 742-2, 1/5/98 Tr.

8, 10. As to his daughter’s work, the judge noted that she

had been employed with the Crime Commission for several

years, that in the course of her employment she had written

and edited a report entitled “The New Faces of Organized

Crime,” that she had not discussed the report with him,

that he had read no more than the title page of the report,

and that he had no idea whether the report discussed either

the TVLs or any other group. R. 742-1, 12/18/97 Tr. 5, 12-

13; R. 742-2, 1/5/98 Tr. 8-9. (The record indicates, in fact,

that defense counsel obtained a copy of the report and

that it did not mention the TVLs. See R. 742-2, 1/5/98 Tr.

7.) Neither Young nor any other defendant filed a petition

for mandamus following the district court’s ruling, an

omission that forecloses appellate relief under section 455.

See United States v. Smith, 210 F.3d 760, 764 (7th Cir.

48 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

2000). Mohammad Mansoori nonetheless argues that the

judge’s refusal to recuse himself deprived him of his Fifth

Amendment right to due process. Because he did not rely on

the due process clause below, he forfeited this argument

and our review is confined to one for plain error alone. See,

e.g., United States v. Williams, supra, 272 F.3d at 854-55.

The district judge certainly committed no plain error in

declining to recuse himself. As the government points out,

the Constitution demands recusal in a narrower range of

circumstances than does the statute. Generally speaking,

due process compels recusal only when “the [biasing] in-

fluence . . . is so strong that [the court] may presume actual

bias.” Del Vecchio v. Illinois Dep’t of Corrections, 31 F.3d

1363, 1375 (7th Cir. 1994) (en banc), cert. denied, 514 U.S.

1037, 115 S. Ct. 1404 (1995). Conflicts arising from the

judge’s familial relationships normally do not mandate

recusal under the due process clause. Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 820, 106 S. Ct. 1580, 1584 (1986).

Here, no basis has been shown for believing that the work

and social life of the judge’s daughter gave rise to a disqual-

ifying bias on the part of the judge. Her report for the

Chicago Crime Commission concerned neither the defen-

dants, the Traveling Vice Lords, nor the facts of this case,

and the judge himself had not even read the report. Like-

wise, the DEA agent whom she was dating had no involve-

ment in this case, and the judge had not discussed the case

with him.

O. Supervisory Enhancement for Cox

Pursuant to section 3B1.1(b) of the Sentencing Guide-

lines, the district court determined that Cox qualified as a

“manager or supervisor” of criminal activity that “involved

five or more participants or was otherwise extensive” and

enhanced his offense level by three levels. R. 730, Cox

Sentencing Tr. 26-29. The court had no doubt that the

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 49

criminal activity at issue in this case involved at least five

individuals or was otherwise extensive: the conspiracy had

a broad temporal and geographic reach and was responsible

for numerous narcotics transactions that took place on a

daily basis. Id. at 27. As for Cox’s role in that conspiracy,

the court noted that Cox had told Cronin upon his arrest

that he controlled the distribution of narcotics within an

eight or nine square-block portion of the TVL domain and

that he could “shut down” other TVL members who were

selling drugs within that area. Id. at 27-29. The court noted

further that Cox’s management of at least one “drug spot”

required him to employ several individuals who could sell

drugs, transport money and drugs, and secure the “spot.”

Id. at 29. These facts, the district court reasoned, supported

the inference that Cox had managed or supervised one or

more participants in the charged conspiracy. Id. at 27, 29.

The court did not name any such participant, however, see

id. at 29, and this forms the basis for Cox’s objection to the

managerial enhancement. Unless the district court can

identify by name at least one person whom the defendant

supervised or managed, Cox argues, it cannot impose the

enhancement. See United States v. Stubbs, 11 F.3d 632, 641

(6th Cir. 1993) (holding that section 3B1.1 requires the

district court to “make specific findings as to the identity of

the persons involved in the criminal enterprise”); but see

also United States v. Fells, 920 F.2d 1179, 1182 (4th Cir.

1990) (lower-level distributors with whom defendant sup-

plied crack cocaine were properly considered by district

court in imposing section 3B1.1 enhancement although not

identified by name), cert. denied, 501 U.S. 1219, 111 S. Ct.

2831 (1991); United States v. McDowell, 918 F.2d 1004,

1011 (1st Cir. 1990) (identities of participants in crime need

not be proved expressly for purposes of section 3B1.1,

although district court must make finding that “pinpoints

them with enough particularity to give credence to the

upward adjustment”); United States v. Barbontin, 907 F.2d

1494, 1498 (5th Cir. 1990) (identities of participants need

50 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

not be proved expressly for purposes of section 3B1.1). This

argument poses a legal issue as to which our review is de

novo. See United States v. Tai, 41 F.3d 1170, 1174 (7th Cir.

1994).

We do not agree that a court must invariably identify by

name the person or persons whom the defendant managed

or supervised, however. Our opinion in United States v.

Schweihs, 971 F.2d 1302, 1318 (7th Cir. 1992), does indicate

that the district court must identify each of the participants

in the criminal enterprise when imposing a section 3B1.1

enhancement. In the absence of such a finding, we cannot

exercise meaningful review of the court’s threshold determi-

nation that there were at least five criminally culpable

participants in the offense or its ultimate determination

that the defendant managed or supervised one or more of

these participants. United States v. Jewel, 947 F.2d 224,

235-36 (7th Cir. 1991); see also McDowell, 918 F.2d at 1011-

12. Yet, in some cases, the evidence may leave no doubt

that the defendant directed another culpable participant

but may not reveal that person’s name. In United States v.

Richards, 198 F.3d 1029, 1031 (7th Cir. 2000), for example,

an unnamed individual had met the defendant and escorted

him and his confederates in narcotics trafficking to a “safe

house”; and another such unnamed individual had retrieved

his minivan and later returned it to him loaded with

marijuana. We indicated that the district court could

properly consider those individuals as participants in the

criminal enterprise over whom the defendant had exercised

control, notwithstanding the absence of evidence as to their

names. Id. at 1034. See also United States v. Cadavid, 192

F.3d 230, 237 (1st Cir. 1999) (evidence that conspiracy in-

volved four named individuals and two unnamed individu-

als sufficient to support district court’s determination that

the enterprise involved five or more participants); Fells, 920

F.2d at 1182-83 (evidence that defendant’s narcotics dis-

tribution network involved four named participants and

seventeen unnamed, lower-level distributors was sufficient

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 51

to support district court’s finding that the enterprise

involved five or more participants). So long as the court’s

findings and the underlying evidence make clear that the

criminal enterprise involved at least five culpable partici-

pants and that the defendant actually did manage or super-

vise one or more of these individuals, the lack of evidence as

to the name of the person that the defendant supervised or

managed should not foreclose imposition of the managerial

enhancement pursuant to section 3B1.1(b). In this case, the

district court pointed to specific evidence indicating that

Cox had managed or supervised other criminally culpable

participants in the TVL’s narcotics operations. But for the

fact that the evidence does not reflect the names of these

individuals, Cox makes no challenge to the sufficiency of

this evidence or the district court’s findings. We find no

error in the district court’s decision.

P. Choice’s Offense Level

The district court made several factual determinations

that increased Choice’s offense level and, ultimately, man-

dated a prison term of life. First, in establishing Choice’s

base offense level, the court determined that Choice should

be held to account for the full amount of cocaine distributed

by the members of the conspiracy—more than 150 kilo-

grams—in view of Choice’s “full participation in the conspir-

acy.” R. 748, Choice Sentencing Tr. 18; see also id. at 16-18,

19-20. Second, although the evidence did not indicate that

Choice himself had possessed a firearm in connection with

the conspiracy, the court increased Choice’s base offense

level by two levels based on the fact that his co-conspirators

had done so. Id. at 18-19, 20; see U.S.S.G. § 2D1.1(b)(1).

Finally, as with Cox, the court increased Choice’s offense

level by another three levels based on Choice’s exercise of

managerial or supervisory authority over certain aspects of

the conspiracy, including the distribution of heroin at the

Henry Horner Homes, a public housing project on Chicago’s

52 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

west side. R. 748, Choice Sentencing Tr. 20; see U.S.S.G.

§ 3B1.1(b). Choice challenges each of these findings, which

we review for clear error. E.g., United States v. Kroledge,

201 F.3d 900, 905 (7th Cir. 2000). None of these three

factual determinations was clearly erroneous.

For purposes of establishing the defendant’s offense level,

the relevant drug quantity need not be proven beyond a

reasonable doubt, as Choice contends, so long as the re-

sulting sentence is within the range of penalties proscribed

in the statute. E.g., United States v. Hernandez, 226 F.3d

839, 841-42 (7th Cir. 2000). In this case, the statute speci-

fied a prison term of twenty years to life so long as the

offense involved at least five kilograms of cocaine and/or

one kilogram of heroin. 21 U.S.C. § 841(b)(1)(A)(i, ii). The

jury was not asked to find beyond a reasonable doubt

whether the conspiracy involved at least this much cocaine,

and as we have discussed, that constituted an error under

Apprendi. See supra at 29-30. But we have already held this

error to be harmless in view of the overwhelming evidence

that the conspiracy involved far more than the threshold

quantities of five kilograms of cocaine and one kilogram of

heroin. See supra at 30-31. For purposes of determining

where within the statutory range of twenty years to life

Choice was to be sentenced, the district court was free to

establish the relevant drug quantity based on a preponder-

ance of evidence. E.g., United States v. Nubour, 274 F.3d

435, 444 (7th Cir. 2001), petition for cert. filed, No. 01-10947

(U.S. June 20, 2002). Choice does not dispute that the

district court’s 150-kilogram finding has adequate evi-

dentiary support under this burden.

Although Choice secondarily contends that the court

erred in holding him responsible for the full amount of

cocaine involved in the conspiracy, we find no clear error in

that determination. See, e.g., United States v. Gutierrez-

Herrera, 293 F.3d 373, 376 (7th Cir. 2002). A defendant may

be held to account for the full quantity of drugs involved in

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 53

a conspiracy to distribute narcotics so long as that amount

was reasonably foreseeable to him. U.S.S.G. § 1B1.3(a)

(1)(B) & comment. (n.2); see, e.g., United States v. Robbins,

197 F.3d 829, 850-51 (7th Cir. 1999); United States v. Flores,

5 F.3d 1070, 1082-83 (7th Cir. 1993), cert. denied, 510 U.S.

1074, 114 S. Ct. 884 (1994). Notwithstanding his protesta-

tions of “minimal” involvement in the conspiracy, the evi-

dence revealed that Choice was Young’s “right-hand man”

and that he enjoyed a position of significant status and

authority within the TVL hierarchy as a result. See, e.g., Tr.

346, 668, 673, 1228, 1252, 1751-52. The evidence also

reveals Choice’s personal involvement in a number of multi-

kilogram transactions. To cite just a few examples, the

evidence indicated that Choice had picked up a ten-kilo-

gram quantity of cocaine from Young on at least one

occasion, Tr. 694, that he had delivered cocaine to Leslie

Teague on more than ten occasions for Young, Tr. 2096-99,

2105-07, that he had managed the distribution of heroin at

the Henry Horner Homes and had picked up heroin from

Young for that purpose, Tr. 342-43, 358, and that he was

distributing three kilograms of cocaine per week at one

point in time, Tr. 1049. The district court was entitled to

infer that someone with Choice’s degree of involvement

could have reasonably foreseen that the conspiracy involved

at least 150 kilograms of cocaine (or its equivalent).

For the same reason, we find no error in the district

court’s decision to apply the firearms enhancement. A

defendant convicted of conspiracy need not have possessed

a firearm himself for the enhancement to apply, so long as

his co-conspirators’ possession of firearms in furtherance of

the conspiracy was reasonably foreseeable to him. See, e.g.,

United States v. Cavender, 228 F.3d 792, 801 (7th Cir. 2000),

cert. denied, 532 U.S. 1023, 121 S. Ct. 1965 (2001). Fire-

arms were widely used in the TVLs’ trafficking operations,

see Tr. 702, 723-26, 1452-53, 1857-60, and given the extent

of Choice’s hands-on involvement in those operations, he

must have been aware of the presence and use of firearms.

54 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

Nor, finally, do we discern any error in the imposition of

the managerial enhancement. The evidence revealed not

only that Choice ran the heroin distribution at the Henry

Horner Homes, see Tr. 342-49, 668, which required that he

supervise more than one other criminally responsible

person, but also that he directly supervised Terry Bronson

(nicknamed “Frog”), who helped him pick up and deliver

drugs, Tr. 342-43, 350, 353.

Q. Enhancement of Bahman Mansoori’s Offense Level for

Obstruction of Justice

Based on Bahman Mansoori’s refusal to comply with a

court order directing him to supply a voice exemplar, the

court enhanced his offense level for obstruction of justice.

See U.S.S.G. § 3C1.1. Not long before the government

rested its case-in-chief, Bahman’s counsel informed the

prosecution that he intended to call an FBI agent to the

stand to testify about the government’s use of voice exem-

plars in another case as a means of voice identification. The

aim of this testimony, apparently, was to suggest that the

FBI’s language specialist, Behrooz Sarshar, lacked an

adequate basis upon which to identify Bahman’s voice on

the tape recordings (see supra at 43-44) because the gov-

ernment had not used voice exemplars for that purpose.

After the defense case had begun and before the agent

testified, the government sought to bar this line of inquiry

and argument. After the district court overruled the govern-

ment’s objection, Tr. 3941, the government asked the court

to order Bahman to provide a voice exemplar, Tr. 3942-45.

Bahman objected to the request, and although the court did

not definitively rule on the objection at that time, it did

point out to Bahman’s counsel that “[y]ou are the one that

just brought this issue up.” Tr. 3945. Later, after the agent

testified, the court ordered Bahman to provide an exemplar.

Tr. 4015-16, 4387. When Bahman refused, the court per-

mitted the government to elicit evidence of his refusal to

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 55

the jury. Tr. 4514-15, 4520-21; see Tr. 4687-89. The court

observed that Bahman had “opened the door” on this sub-

ject and that the court had allowed the agent’s testimony on

the condition that Bahman would supply the government

with an exemplar. Tr. 4520. At sentencing, the court de-

termined that an enhancement for obstruction of justice

was appropriate in light of Bahman’s refusal to comply with

the court’s order. R. 601, B. Mansoori Sentencing Tr.17-18.

We review that determination for clear error. E.g., United

States v. Yusufu, 63 F.3d 505, 514 (7th Cir.), cert. denied,

516 U.S. 1015, 116 S. Ct. 578 (1995).

The district court did not clearly error in imposing the

obstruction enhancement. We have previously upheld such

an enhancement based on the defendant’s refusal to provide

a handwriting exemplar. United States v. Ruth, 65 F.3d

599, 608 (7th Cir. 1995), cert. denied, 517 U.S. 1158, 116 S.

Ct. 1548 (1996). Bahman’s objection is premised on the

notion that the government deprived him of due process by

waiting until he had already commenced his defense to

make its request for a voice exemplar—thus putting him to

an untenable choice between submitting a potentially

incriminating exemplar or making himself subject to a

sentence increase for obstruction of justice by refusing to

submit the exemplar. Bahman Mansoori Suppl. Br. at 9-11.

But the record does not bear out Bahman’s argument. The

government requested the exemplar only after the court

overruled its objection to the FBI agent’s testimony, but

also before Bahman put the FBI agent on the witness stand.

Moreover, although the district court may not yet have

definitively said that it would order the exemplar, it had

expressed the view that Bahman was opening the door to

that request by putting on testimony that called into

question the reliability of the voice identifications. Tr. 3943,

3945, 4226; see also Tr. 4015-16. In short, before he called

the FBI agent to testify about the use of voice exemplars in

another case, Bahman knew that it was altogether possible

the court would order him to submit an exemplar of his

56 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

own. In no sense was he “set up” by the government or by

the district court. The district court acted within its discre-

tion in ordering him to submit the exemplar, see, e.g.,

United States v. Rogers, 475 F.2d 821, 825-26 (7th Cir. 1973),

and given Bahman’s refusal to comply with that order, the

court committed no clear error in enhancing his offense

level for obstruction of justice, Ruth, 65 F.3d at 608.

R. Denial of Young’s Request for Downward Departure

Without Evidentiary Hearing

Prior to sentencing, Young filed a motion asking the court

to depart downward from the otherwise applicable sentenc-

ing range on three grounds: (1) his diminished mental

capacity, see U.S.S.G. § 5K2.13, (2) his mental condition, see

id. § 5H1.3, and (3) his prior good works, see id. § 5H1.11.

The district court determined that Young was ineligible for

a departure on the basis of diminished mental capacity

because he had not been convicted of a non-violent offense,

as section 5K2.13 requires. United States v. Young, 1999

WL 731790, at *1-*3 (N.D. Ill. Aug. 31, 1999). This was a

legal determination that we review de novo. United States

v. Poff, 926 F.2d 588, 590-91 (7th Cir.) (en banc), cert.

denied, 502 U.S. 827, 112 S. Ct. 96 (1991). With respect to

his mental condition, the court indicated that Young had

not articulated exceptional circumstances that might war-

rant a departure. Accordingly, the court summarily denied

his request without holding an evidentiary hearing. 1999

WL 731790, at *3-*4. We review the district court’s decision

not to hold an evidentiary hearing for abuse of discretion.

See Fed. R. Crim. P. 32(c)(1); United States v. Beltran, 109

F.3d 365, 369 (7th Cir.), cert. denied, 522 U.S. 852, 118 S.

Ct. 145 (1997). Finally, the court denied Young’s request for

a departure on the basis of his good works on the merits,

after hearing testimony regarding those works. R. 745-3,

Young Sentencing Tr. 39-42. Of course, we lack jurisdiction

to review a district court’s discretionary decision not to

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 57

depart downward, e.g., United States v. Schuh, 289 F.3d

968, 974 (7th Cir. 2002), and indeed, Young does not chal-

lenge that decision.

We turn to the requested diminished capacity departure

first. The district court sentenced Young using the 1997

version of the Sentencing Guidelines. See Young, 1999 WL

731790, at *1. As of 1997, section 5K2.13 provided as

follows:

If the defendant committed a non-violent offense while

suffering from significantly reduced mental capacity not

resulting from voluntary use of drugs or other intoxi-

cants, a lower sentence may be warranted to reflect the

extent to which reduced mental capacity contributed to

the commission of the offense, provided that the defen-

dant’s criminal history does not indicate a need for

incarceration to protect the public.

U.S.S.G. § 5K2.13 (1997) (emphasis supplied). The Guide-

line offered no guidance as to what constitutes a “violent” as

opposed to a “non-violent” offense. In Poff, 926 F.2d 588, we

held by a divided (6 to 5) vote that this determination must

be made with reference to the definition of “crime of vio-

lence” set forth in the career offender guideline, section

4B1.2(a).12 That guideline, which tracks the language of the

Armed Career Criminal Act, 18 U.S.C. § 924(e), provides:

The term “crime of violence” means any offense under

federal or state law, punishable by imprisonment for a

term exceeding one year, that—

12

The career offender guideline, section 4B1.1, mandates a prison

term at or near the statutory maximum for adults who stand

convicted of “a felony that is either a crime of violence or a

controlled substance offense” and whose criminal history includes

at least two prior felony convictions for the same types of crimes.

Section 4B1.2(a) in turn defines “crime of violence” as that term

is used in section 4B1.1.

58 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

(1) has as an element the use, attempted use, or

threatened use of physical force against the

person of another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

We reasoned in Poff that the terms “crime of violence” and

“non-violent offense” are mutually exclusive, such that any

offense that amounts to a “crime of violence” under the

criteria set out in section 4B1.2(a) cannot be a “non-violent

offense” for purposes of section 5K2.13. 926 F.3d at 591-93;

cf. id. at 594-95 (Easterbrook, J., dissenting). Under Poff,

then, a conviction for any crime that (i) is defined in such a

way as to include the actual, attempted, or threatened use

of force, or (ii) constitutes burglary of a dwelling, arson, or

extortion, or involves the use of explosives, or (iii) “presents

a serious potential risk of physical injury to another,” will

preclude a departure for diminished mental capacity. This

is a categorical approach that abjures any inquiry into

whether the defendant actually engaged in violence in

committing the offense and focuses instead on the nature of

the offense. Compare id. at 593 (majority) with id. at 594-95

(dissent); see United States v. Sullivan, 75 F.3d 297, 300 &

n.1 (7th Cir. 1996); see also United States v. Dailey, 24 F.3d

1323, 1325-27 (11th Cir. 1994); United States v. Mayotte, 76

F.3d 887, 889 (8th Cir. 1996); United States v. Borrayo, 898

F.2d 91, 94 (9th Cir. 1989); United States v. Maddalena, 893

F.2d 815, 819 (6th Cir. 1989), cert. denied, 502 U.S. 882, 112

S. Ct. 233 (1991); contra United States v. Weddle, 30 F.3d

532, 540 (4th Cir. 1994) (conviction for offense that meets

section 4B1.2’s criteria for “crime of violence” may nonethe-

less qualify as “non-violent offense” for purposes of section

5K2.13); United States v. Chatman, 986 F.2d 1446, 1450

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 59

(D.C. Cir. 1993) (same).13

13

Effective November 1, 1998, the Sentencing Commission

amended section 5K2.13 in order to make clear that the sentenc-

ing judge is to examine the circumstances underlying the defen-

dant’s offense in order to decide whether he qualifies for a dimin-

ished capacity reduction rather than make a categorical deter-

mination whether the offense was “violent” or “nonviolent”. See

U.S.S.G. App. C., amend. 583. The amended guideline now per-

mits a downward departure unless:

(1) the significantly reduced mental capacity was caused by

the voluntary use of drugs or other intoxicants; (2) the facts

and circumstances of the defendant’s offense indicate a need

to protect the public because the offense involved actual

violence or a serious threat of violence; or (3) the defendant’s

criminal history indicates a need to incarcerate the defendant

to protect the public.

U.S.S.G. § 5K2.13 (Nov. 1998) (emphasis added). In explaining the

revision, the Commission noted the division among the circuits as

to the appropriate means of deciding whether the defendant’s

offense was “nonviolent” and remarked that “[t]he amendment

replaces the current policy statement with a new provision that

essentially represents a compromise approach to the circuit con-

flict.” U.S.S.G. App. C, amend 583, comment.

Although the revised version of section 5K2.13 took effect well

in advance of Young’s sentencing, the parties agreed the 1997

version of the Guidelines should be used to sentence Young

as the November 1998 version was less favorable to him and

consequently created the potential for a violation of his rights

under the ex post facto clause of the Constitution. See U.S.S.G.

§ 1B1.11(b)(1); United States v. Schaefer, 291 F.3d 932, 936 n.1 (7th

Cir. 2002); United States v. Kosmel, 272 F.3d 501, 507 (7th Cir.

2001). Judge Lindberg therefore applied the 1997 version of sec-

tion 5K2.13. See Young, 1999 WL 731790, at *1. Neither Young

nor the government suggests on appeal that we should apply the

revised version of the Guideline. Accordingly, we need not decide

whether the Commission’s revision was “clarifying” (in which case

it would apply to pending cases) or “substantive” (in which case it

(continued...)

60 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

The offenses of which Young was convicted—narcotics

conspiracy, possession of cocaine with the intent to distrib-

ute, and money laundering—do not have elements involving

the actual, attempted, or threatened use of force, see section

4B1.2(a)(1), nor do they fall into one of the categories of of-

fenses expressly identified as violent in section 4B1.2(a)(2)

(burglary of a dwelling, arson, etc.). Therefore, only if these

offenses may be said to “involve[ ] conduct that presents a

serious potential risk of physical injury to another” may

they be labeled violent crimes that preclude a downward

departure under section 5K2.13.

Notably, the career offender guideline does not permit a

free-ranging exploration of the facts underlying and sur-

rounding a defendant’s conviction in order to make this

determination. The commentary instead explains that “the

offense of conviction (i.e., the conduct of which the defen-

dant was convicted) is the focus of inquiry,” U.S.S.G.

§ 4B1.2, comment. (n.2), and it specifically directs the sen-

tencing court to examine “the conduct set forth (i.e., ex-

pressly charged) in the count of which the defendant was

convicted” and consider whether that conduct, “by its

nature” posed a serious risk of injury, id. (n.1). See United

States v. Shannon, 110 F.3d 382, 384 (7th Cir.) (en banc),

13

(...continued)

would not apply). See U.S.S.G. § 1B1.11(b)(2) (court should con-

sider guideline amendments made subsequent to defendant’s of-

fense “to the extent that such amendments are clarifying rather

than substantive changes”); see also, e.g., United States v. Hartz,

296 F.3d 595, 598-99 (7th Cir. 2002); United States v. Minneman,

143 F.3d 274, 282 (7th Cir. 1998), cert. denied, 526 U.S. 1006, 119

S. Ct. 1145 (1999); compare United States v. Askari, 159 F.3d 774,

779-80 (3rd Cir. 1998) (en banc) (relying on the parties’ agreement

that the revision to section 5K2.13 was clarifying), with United

States v. Allen, 181 F.3d 104 (6th Cir. 1999) (unpublished), text in

Westlaw, 1999 WL 282674, at *2 (holding that the revision to

section 5K2.13 was substantive).

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 61

cert. denied, 522 U.S. 888, 118 S. Ct. 223 (1997); United

States v. Hoults, 240 F.3d 647, 650-52 (7th Cir. 2001); United

States v. Lee, 22 F.3d 736, 738-40 (7th Cir. 1994); see also

Taylor v. United States, 495 U.S. 575, 600-02, 110 S. Ct.

2143, 2159-60 (1990) (construing comparable language in

Armed Career Criminal Act, 18 U.S.C. § 924(e)).

Looking to the language of the indictment in this case,

Judge Lindberg concluded that the narcotics charges

against Young presented a serious risk of potential injury

to others, thus foreclosing the possibility of a downward

departure for diminished mental capacity. Count One of the

superseding indictment, which set forth the narcotics

conspiracy charge against Young and his co-defendants,

specifically alleged:

It was further part of the conspiracy that defendants

Terry Young [and others] . . . assisted each other in the

distribution of narcotics by using street gang affiliation,

violence, and the threat of violence to minimize compe-

tition in and otherwise maintain control over these

geographic areas, and on occasion by assisting each

other in stealing narcotics from other narcotics distribu-

tors.

1999 WL 731790, at *2, quoting R. 133 at 3 ¶ 4. Judge

Lindberg found this allegation sufficient to establish that

Young’s convictions were for “crimes of violence” as section

4B1.2(a)(2) defines such offenses. Id. He observed:

Drug dealing, especially at the scale involved here, is

far from a benign activity. Squabbles over turf and

stealing from other drug distributors are quite common

and are, inter alia, a rich source of violence. Trial

testimony amply demonstrated that defendant’s drug

operation was no exception. . . .

Id.

Young argued below, and renews the argument here, that

although the sentencing court may look to the language of

62 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

the indictment to determine whether a particular offense

amounted to a violent crime, it must confine its consider-

ation to those allegations that were necessary to charge the

offense of conviction. The mere fact that violent acts were

alleged in the indictment is not enough, in Young’s view, to

confirm that the defendant was convicted of a violent

offense; only if such facts were essential to the conviction

may the sentencing judge consider them.

Young’s argument has the support of a number of career

offender cases, which indeed emphasize that when review

of the charging document is necessary in order to assess the

nature of a defendant’s prior conviction, the court should

focus solely on allegations that were essential to the

conviction. See, e.g., United States v. Jackson, 177 F.3d 628,

632 (7th Cir. 1999) (“By considering only the minimum facts

necessary to support Jackson’s conviction, we can ensure

that we impose a sentence enhancement only for conduct of

which Jackson was actually convicted.”); see also United

States v. Winter, 22 F.3d 15, 19 (1st Cir. 1994) (when

examining charge underlying prior conviction,“the court

should not plunge into the details of a particular defen-

dant’s conduct but, rather, . . . should merely assess the

nature and object of the [charged offense] as described in

the indictment and fleshed out in the jury instructions”).

These cases suggest that an indictment’s allegations of

violence are relevant for purposes of the career offender

guideline only if those allegations go to the heart of the

charged offense. With respect to a conspiracy conviction, for

example, an allegation that the defendant conspired to

commit murder obviously would be relevant in the sense

that it revealed the very object of the conspiracy; and one

could confidently read into the conviction a finding that the

defendant had conspired to commit a violent act. See United

States v. Fiore, 983 F.2d 1, 3 (1st Cir. 1992), cert. denied, 507

U.S. 1024, 113 S. Ct. 1830 (1993). Likewise, with respect to

a racketeering conviction, an allegation that the defendant

engaged in predicate acts of extortion and arson would be

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 63

probative of the nature of the racketeering; and once again,

the conviction on an indictment containing that allegation

would stand as proof that the defendant had engaged in

violent conduct. See Winter, 22 F.3d at 19-20. By contrast,

in a check-kiting case, an allegation that the defendant

engaged in a violent act would be entirely beside the point,

as the use of violence has nothing whatever to do with the

elements of check kiting, and conviction on the charge

would in no way depend upon proof of violence nor reflect

a finding that such violence had occurred. See id. at 19-20,

20-21; but see Shannon, 110 F.3d at 387 (“it is common

ground between the parties that in deciding just what the

defendant’s offense was we are free to look at the facts

charged in the indictment or information; we are not

confined to the minimum conduct that would create the

offense”).

Thus, the fact that the indictment in this case alleged the

use of violence and threats of violence does not necessarily

establish that any of the charges on which the jury con-

victed Young were crimes of violence. An indictment may

allege any number of facts which, although illuminating in

a contextual sense, are by no means necessary to establish

that the defendant committed the crime charged. See

United States v. Ewings, 936 F.2d 903, 905-06 (7th Cir.

1991) (merely because extraneous facts are alleged in

indictment does not render proof of those facts relevant and

admissible at trial).

The alleged acts of violence on which the district court

relied here appear to fall into that category of collateral

facts. Proof that violence was used or threatened was

wholly unnecessary to establish that Young conspired to

distribute narcotics, or for that matter, that he possessed

narcotics with the intent to distribute and laundered

money. The violence allegation speaks neither to the

central object nor the essential nature of the charged

crimes. Moreover, as the jury instructions reveal, the jury

64 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

was not directed that Young’s guilt on the narcotics or

money-laundering charges in any way depended on a

finding that he or his co-defendants had engaged in violent

acts. See Tr. 5330-33 (conspiracy), 5333-35 (distribution of

a controlled substance), 5337-40 (money laundering).

Consequently, although the indictment alleged that the

charged offenses involved violence or the threat of violence,

one cannot read into Young’s convictions on these charges

a finding that he engaged in violent conduct. See Jackson,

177 F.3d at 632. Therefore, pursuant to the categorical

assessment of the defendant’s convictions that Poff re-

quires, none of Young’s convictions can be considered crimes

of violence that precluded the district court from entertain-

ing a departure under section 5K2.13.

We must, therefore, remand so that Judge Lindberg may

consider anew whether Young’s allegedly diminished

mental capacity calls for a downward departure. See, e.g.,

United States v. Jaroszenko, 92 F.3d 486, 491 (7th Cir.

1996). We hasten to add that the judge is by no means

precluded from considering the extent to which Young and

his co-conspirators employed violence in furtherance of

their crimes—along with any other pertinent factors—in

making that determination. (The guideline itself indicates

that a departure may not be granted to the extent that the

defendant’s criminal history reveals a need for incarceration

to protect the public, for example.) We have concluded only

that Young’s convictions for conspiring to distribute narcot-

ics, distributing a controlled substance, and money launder-

ing do not constitute violent offenses that categorically

disqualify Young for a departure under section 5K2.13. As

it otherwise considers the propriety of a departure, how-

ever, the court need not blind itself to the circumstances

underlying his offenses. Cf. United States v. Purchess, 107

F.3d 1261, 1271-72 (7th Cir. 1997) (court may depart upward

on the basis of relevant conduct).

With respect to Young’s request for a downward depar-

ture based on his mental condition, see § 5H1.3, which is a

Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 65

disfavored ground for departure, we conclude that the

district judge did not abuse his discretion in denying the

request without conducting an evidentiary hearing. The

Sentencing Guidelines do not invariably obligate the court

to conduct an evidentiary hearing to resolve a contested

issue, so long as the sentencing court gives both parties the

opportunity to present the information that it needs to

decide the matter. U.S.S.G. § 6A1.3(a); e.g., United States

v. Beltran, supra, 109 F.3d at 369; see also Sentencing

Guidelines, 88 GEO. L.J. 1483, 1519 n.2052 (2000) (collect-

ing cases). Here, the papers that Young submitted to the

court in support of his departure requests were sufficient to

apprise the court of his mental condition. In denying the

request, Judge Lindberg did not question the veracity of

Young’s representations; he simply found them insufficient

to warrant a departure from the guideline sentencing

range. See 1999 WL 731790, at *4. Under these circum-

stances, the judge was not obligated to conduct an eviden-

tiary hearing.

S. Community Restitution

In controlled substance prosecutions such as this one, in

which there is no identifiable victim of the offense, 18

U.S.C. § 3663(c) permits the sentencing judge to order the

payment of restitution commensurate with the public harm

caused by the crime. However, section 3663(c)(2)(B) further

provides that the amount of restitution ordered in such a

case shall not exceed the amount of the fine imposed for the

offense. The district court ordered both Young and Cox to

pay community restitution. See R. 730, Cox Sentencing Tr.

31-32, and R. 682; R. 745-3, Young Sentencing Tr. 47, and

R. 681. However, because the court did not order either of

them to pay a fine, they contend that the restitution order

was plainly erroneous. The government concedes the error,

and in view of the unequivocal terms of section 3663(c)

(2)(B), we agree that the restitution obligations imposed on

66 Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623

Young and Cox were plainly erroneous. It appears that the

court made the same error with respect to the other de-

fendants as well. See R. 748, Choice Sentencing Tr. 21-22,

and R. 691; R. 601, B. Mansoori Sentencing Tr. 51, and

R. 569; R. 690 (M. Mansoori). We therefore vacate and

remand the sentences of all defendants for correction of

that error.

III.

For all of the foregoing reasons, we AFFIRM the defen-

dants’ convictions but VACATE their sentences and REMAND

for re-sentencing in accordance with this opinion.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—8-29-02