Shell, Gregory v. United States

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-3890

GREGORY SHELL,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 3182—Harry D. Leinenweber, Judge.

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ARGUED FEBRUARY 21, 2006—DECIDED MAY 23, 2006

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Before MANION, WOOD, and EVANS, Circuit Judges.

MANION, Circuit Judge. Gregory Shell is serving a term of

life imprisonment after being convicted for his leadership

role in the Gangster Disciples. The government obtained

overwhelming evidence against Shell by monitoring his

conversations with Larry Hoover, the chieftain of the

Gangster Disciples, who was serving time in prison for

murder. Shell filed a motion for relief under 28 U.S.C.

§ 2255, which the district court denied. We granted a

certificate of appealability on the issue of whether Shell’s

counsel was constitutionally ineffective for not raising

certain challenges at his trial. We now affirm.

2 No. 04-3890

I.

Gregory Shell was second-in-command of the Gangster

Disciples (“GDs” or the “gang”) in Chicago, a gang that had

a $100,000,000 per year drug business.1 The founder of the

gang, Larry Hoover, had been convicted of murder in 1973,

but he retained his leadership position in the GDs from his

prison cell in Vienna, Illinois. To maintain order in his

absence, Hoover designated Shell as his proxy in 1992,

giving him day-to-day control over the gang’s operations

in Chicago. Shell, a trusted board member who had not

been incarcerated, brought a flair for organization to the

gang’s dealings, efficiently coordinating and systematiz-

ing the GD drug network. During Hoover’s time in jail, he

would often talk to different GD lieutenants over the

telephone, but, if the conversation turned to gang business,

he would tell his interlocutor to come to Vienna personally.

Over a period of ninety months in the late 1980’s through

the mid 1990’s, Shell made the trip from Chicago to Vienna,

which is in the most southern part of Illinois, over one

hundred times.

In 1993, a DEA task force began investigating Hoover’s

continuing role with the GDs. The task force applied to

Chief Judge Moran of the Northern District of Illinois for a

warrant for electronic surveillance, as required by 18 U.S.C.

§ 2518 (“Title III”). Title III requires applicants for such a

warrant to submit a statement, under oath, containing a

variety of disclosures, including “(ii) . . . a particular

description of the nature and location of the facilities from

1

We refer readers to previous decisions, such as United States v.

Hoover, 246 F.3d 1054 (7th Cir. 2002), and United States v. Smith,

223 F.3d 554, 568-69 (7th Cir. 2000), for further discussion of the

GDs’ nefarious dealings.

No. 04-3890 3

which or the place where the communication is to be

intercepted, (iii) a particular description of the type of

communications sought to be intercepted, (iv) the identity

of the person, if known, committing the offense and whose

communications are to be intercepted.” 18 U.S.C.

§ 2518(1)(b). In this case, the application sought a warrant

“authorizing the [DEA] and other law enforcement person-

nel assisting them to intercept oral communications occur-

ring at the Visitor Area [of the Vienna Correctional Facility],

between Larry Hoover and Gregory Shell, [and assorted

other GD members].” The application was devoid of any

information describing the means that the DEA intended to

employ. Chief Judge Moran authorized the surveillance.

All visitors to the prison had to wear a badge identify-

ing themselves as such. Working with prison officials, the

DEA conducted the authorized surveillance of the conversa-

tions in the Visitor Area by placing an electronic eavesdrop-

ping device (the “bug”) inside the badge given to Hoover’s

visitors. This enabled the DEA to listen to Hoover’s commu-

nications with Shell and his other GD visitors, no matter

where in the Visitor Area they occurred. The bug turned up

a wealth of information, leading to a forty-two- count

indictment against Hoover, Shell, and various other GD

leaders for their involvement in the gang’s drug activities.

Before trial, Shell filed a motion to suppress, raising a

variety of challenges to the Title III application and

warrant.2 The district court denied the motion. Shell then

2

Shell now claims his counsel was ineffective because he did not

raise several issues in his motion to suppress. Specifically, Shell’s

counsel did not contend that the interception of his oral commu-

nications with Hoover amounted to an infringement on his

(continued...)

4 No. 04-3890

went to trial and was convicted, and we affirmed. See

Hoover, 246 F.3d at 1063.

In 2003, Shell filed a timely motion under 28 U.S.C. § 2255

asserting that the bug in the badge amounted to a Fourth

Amendment violation and that his counsel was constitution-

ally ineffective for not raising this argument. The district

court denied this motion. We subsequently granted a

certificate of appealability on three issues: “Whether trial

and appellate counsel were ineffective for failing to argue

that (1) the intercepted conversations were obtained in

violation of the Fourth Amendment; (2) the trial court erred

when it admitted intercepted conversations because the

court order did not specify where the communications

would be intercepted; and (3) the court order was void

because the government deliberately omitted material

information regarding the method of interception when it

asked for authorization, and the judge would not have

authorized the surveillance if he had known the method.”

II.

We review the district court’s decision to deny Shell’s

§ 2255 motion de novo. See Kitchen v. United States, 227 F.3d

1014, 1017 (7th Cir. 2000); see also Fountain v. United States,

211 F.3d 429, 433 (7th Cir. 2000). “A § 2255 motion must be

granted when a defendant’s ‘sentence was imposed in

violation of the Constitution or laws of the United States.’ ”

2

(...continued)

Fourth Amendment rights. Nor did he argue that the application

to intercept oral communications was insufficient because it

did not explain the alleged constitutional difficulties inherent

in the surveillance.

No. 04-3890 5

Fountain, 211 F.3d at 433 (quoting 28 U.S.C. § 2255). As the

certificate of appealability was limited to Shell’s challenge

to the constitutionality of his representation, see id., we

conduct our review in light of the test first annunciated by

Strickland v. Washington, 466 U.S. 668, 688-94 (1984). See, e.g.,

Kitchen, 227 F.3d at 1019; Prewitt v. United States, 83 F.3d 812,

816 (7th Cir. 1996). The familiar standard of Strickland

requires a showing that: (1) Shell’s counsel was objectively

deficient; and (2) this deficient performance so prejudiced

his defense that Shell was deprived of a fair trial. See

Fountain, 211 F.3d at 434; see also Prewitt, 83 F.3d at 816.

Turning to the first prong, a constitutionally deficient

performance is one that falls below an objective standard of

reasonableness under prevailing professional norms. See,

e.g., Granada v. United States, 51 F.3d 82, 83 (7th Cir. 1995). In

the Supreme Court’s words, “a court must indulge a strong

presumption that counsel’s conduct falls within the range of

reasonable professional assistance.” Strickland, 466 U.S. at

689; see also Galbraith v. United States, 313 F.3d 1001, 1008

(7th Cir. 2002). “[B]ecause counsel is presumed effective, a

party bears a heavy burden in making a winning claim

based on ineffective assistance of counsel.” Fountain, 211

F.3d at 434 (quoting United States v. Trevino, 60 F.3d 333, 338

(7th Cir. 1995)). Generally, failing to pursue a particular

issue is not deficient performance, but such a conclusion

depends on the attorney’s reasoning (or lack thereof). See

Kitchen, 227 F.3d at 1020. “When the claim of ineffective

assistance is based on counsel’s failure to present a motion

to suppress, we have required that a defendant prove the

motion was meritorious.” United States v. Cieslowski, 410

F.3d 353, 360 (7th Cir. 2005); see also Owens v. United States,

387 F.3d 607, 610 (7th Cir. 2004).

Shell claims his attorney was ineffective because he failed

to present several valid arguments in the motion to sup-

6 No. 04-3890

press. Against this backdrop, we consider the arguments

Shell believes his attorney should have made. Specifically,

Shell contends that his attorney should have argued the

interception of the communications constituted both an

unreasonable seizure and an unreasonable search of his

body in violation of the Fourth Amendment. Shell further

claims his attorney should have argued that the Title III

application and warrant failed to specify the location of the

search with requisite particularity. Finally, he asserts that

his attorney was ineffective because he failed to argue that

the government omitted material information regarding

how the search was to be conducted, thus transforming

Chief Judge Moran into a rubber stamp.

A.

We begin our analysis by considering Shell’s two Fourth

Amendment challenges. Shell first contends that the

government seized his body through the placement of the

bug in his visitor’s badge. “A ‘seizure’ triggering the Fourth

Amendment’s protections occurs only when government

actors have, ‘by means of physical force or show of author-

ity . . . in some way restrained the liberty of a citizen.’ ”

Graham v. Connor, 490 U.S. 386, 395 n.10 (1991) (quoting

Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)); see also United States

v. Hendricks, 319 F.3d 993, 999 (7th Cir. 2003); United States

v. Thompson, 106 F.3d 794, 798 (7th Cir. 1997). Rather than

explaining the alleged seizure of his person using this well-

established framework, Shell roots his argument in Fourth

Amendment precedent regarding seizures of property. See

United States v. Karo, 468 U.S. 705, 712 (1984) (“A ‘seizure’ of

property occurs when there is some meaningful interference

with an individual’s possessory interests in that property.”)

(internal citations omitted). Shell offers no support for

No. 04-3890 7

deploying this characterization of a seizure in this case. As

Shell has failed to show that DEA agents in any way

restrained his liberty, he has not established an illegal

seizure for Fourth Amendment purposes.

We now turn to Shell’s claim that the DEA’s actions in

bugging his badge constituted an unconstitutional search.

“As Justice Harlan’s oft-quoted concurrence described it, a

Fourth Amendment search occurs when the government

violates a subjective expectation of privacy that society

recognizes as reasonable.” See Kyllo v. United States, 533 U.S.

27, 33 (2001). One must first have a legitimate expectation of

privacy to trigger the protections of the Fourth Amendment.

See Hudson v. Palmer, 468 U.S. 517, 525 (1984); see also United

States v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989). To

determine reasonableness under the Fourth Amendment,

we balance the degree of the intrusion into Shell’s privacy

interests against the government’s need for the search. See,

e.g., United States v. Knights, 534 U.S. 112, 118-19 (2001).

While we cannot say that Shell had no expectation of

privacy when visiting Hoover in prison, he did have a

greatly diminished expectation of privacy while communi-

cating with a prison inmate. See, e.g., Sababu, 891 F.2d at

1329 (“We believe that it was unreasonable for her to expect

that telephone calls she placed to an inmate . . . would be

private. As the Supreme Court has held, ‘in prison, official

surveillance has traditionally been the order of the day.’ ”);

see also Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (“In

seeking entry to [a prison], the visitor simultaneously

acknowledges a lesser expectation of privacy.”); Romo v.

Champion, 46 F.3d 1013, 1018 (10th Cir. 1995). On the other

side of the ledger, the government made a substantial

showing in its application for the Title III warrant that the

monitoring at Vienna would reveal ongoing GD activity.

Balancing the lessened expectation of privacy and the

8 No. 04-3890

proffered value of the search, we conclude that this was a

reasonable search and did not infringe on Shell’s Fourth

Amendment rights.

Still, Shell asserts that the search was unreasonable

because the placement of the bug was more intrusive than

the warrant permitted. As an initial matter, we note that a

search does not need to be the least intrusive alternative to

be constitutionally valid, it simply has to be reasonable.

United States v. Prevo, 435 F.3d 1343, 1348 (11th Cir. 2006). In

support of his position, Shell compares his situation to the

one in Ybarra v. Illinois, 444 U.S. 83 (1979). Ybarra involved

a case in which the police had a warrant to search a bar, and

a bartender named Greg, for drugs. See Ybarra, 444 U.S. at

90. The police, expanding the warrant’s terms, also searched

Ybarra, a bar patron, despite having no particularized

reason to search him or authorization to do so. See id. The

Supreme Court found the government’s actions to be in

violation of Ybarra’s Fourth Amendment rights. See id. at 92

(“Although the search warrant, issued upon probable cause,

gave the officers authority to search the premises and to

search ‘Greg,’ it gave them no authority whatever to invade

the constitutional protections possessed individually by the

tavern’s customers.”).

Shell’s reference to Ybarra is inapt. Shell tries to bring his

case in line with Ybarra by arguing that, while the warrant

authorized the search of the Visitor Area, the government

searched his body. Neither characterization of the search is

correct. Shell voluntarily wore the badge as part of visitor

protocol, and the bug’s only function was authorized by the

warrant. The Title III application and warrant were directed

precisely towards intercepting the communications between

these two men, referenced by name, as they discussed gang

business in the Visitor Area. This was not a search of Shell’s

No. 04-3890 9

body (as he puts it). Rather it was an efficient interception

of his conversations with Hoover. The Title III warrant

expressly sanctioned the interception of Shell’s conversa-

tions with Hoover, making the search no more intrusive

than was authorized. Unlike Ybarra, in which the police

infringed on Ybarra’s independent constitutional rights, in

this case the DEA simply did an effective job of precisely

what they were allowed to do—intercept conversations

between GDs in the Visitor Area. A motion to suppress on

these grounds would not have been meritorious, and

therefore Shell cannot succeed on an ineffective assistance

of counsel claim.

B.

In a closely related argument, Shell asserts that the Title III

application and warrant were defective because of a lack of

particularity in describing that the search and seizure would

be “of Gregory Shell’s body.” As the Supreme Court has

reemphasized in United States v. Grubbs, 547 U.S. ___, 126

S.Ct. 1494, 1500 (2006), the Fourth Amendment does not

have a general particularity requirement, but merely

requires particularity in a warrant’s descriptions of the

“place to be searched” and the “persons or things to be

seized.” The Supreme Court repeatedly has resisted at-

tempts to expand this requirement to “unenumerated

matters.” Id. See also Dalia v. United States, 441 U.S. 238

(1979). For example, in Dalia, the Supreme Court approved

of a Title III warrant that authorized the placement of a bug

in a petitioner’s office despite the petitioner’s particularity

challenge on the grounds that it did not specify that the

police would use an undercover entry when installing the

bug. 441 U.S. at 254-56. The Supreme Court instructed that

nothing in the Fourth Amendment requires search warrants

10 No. 04-3890

to “include a specification of the precise manner in which

they are to be executed.” Id. at 257.

Shell counters that greater particularity was required

in this case because the placement of the bug on his body

was a more intrusive search than merely intercepting

conversations in the Visitor Area. As noted above, this was

not a body search. The only search from the electronic bug

was the authorized interception of conversations. Simply

calling the surveillance a search of the body does not

make the DEA’s actions more intrusive than the warrant

permitted. Cf. United States v. Husband, 226 F.3d 626, 633-36

(7th Cir. 2000).

We agree with the district court that Shell presents a

challenge to the method that the police employed to carry

out the search, rather than to its intrusiveness. Under Dalia,

the DEA did not have to include details describing how they

would accomplish the search. 441 U.S. at 257. The Title III

application and warrant clearly described the place to be

searched and the conversations that were to be intercepted,

thus identifying, for both the reviewing judge and for the

police, the precise location of the interceptions and the

privacy interests at stake. This was not a general warrant, in

which officers have unwarranted and unconstitutional

latitude to conduct an overly broad search. See Hessel v.

O’Hearn, 977 F.2d 299, 302 (7th Cir. 1992) (“We should not

like to be understood that a search warrant gives the

executing officers a blank check. . . . Flagrant disregard for

the terms of the warrant transforms it into a general war-

rant, which the Fourth Amendment forbids.”). Again, as

Shell’s argument on this point could not prevail, his previ-

ous counsel was not ineffective for not addressing it.

No. 04-3890 11

C.

Finally, Shell argues that, by artfully drafting its Title III

application and not including material information about

how it planned to intercept the communications, the

government effectively rendered the judge’s review mean-

ingless. A claim that the government, through acts or

omissions, deliberately misled a judge when seeking a

warrant is serious, which explains the stringent standard of

review in such cases. See Franks v. Delaware, 438 U.S. 154,

155-56 (1978). To qualify for a Franks hearing to evaluate

such an assertion, Shell would have to make a substantial

preliminary showing that: (1) the application for the warrant

contained false statements or omitted information; (2) the

DEA made the false statements or omitted the information

intentionally, or with reckless disregard for the truth; and

(3) the omitted information was necessary to support the

authorization for the search. Id. In this case, Shell merely

states that the government intentionally omitted that the

search would involve the bugging of the badge because of

fears that the reviewing judge would otherwise reject the

application. Shell offers no support for this contention,

instead treating this conclusion as flowing from the fact that

the police did not include the information in the application.

It was, however, not necessary to include the means of the

search in the application. Furthermore, Shell makes no

substantial demonstration that the DEA acted dishonestly

or with reckless disregard for the truth. Shell’s counsel

cannot be held ineffective for failing to introduce this

unsubstantiated issue.

III.

While Shell attempts to indict the actions, or lack thereof,

of his former counsel regarding a variety of issues, he fails

12 No. 04-3890

to show that any have merit. Consequently, we need not

proceed to the second prong of the Strickland analysis and

consider whether any of the alleged failures of his counsel

prejudiced him. Shell received adequate representation in

his original trial and appeal, and we, therefore, AFFIRM the

district court’s decision to deny him relief under 28 U.S.C.

§ 2255.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-23-06