Federal Circuits, 7th Cir. (March 06, 1996)
Docket number: 95-1155
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U.S. Supreme Court - Mu'Min v. Virginia, 500 U.S. 415 (1991)
U.S. Supreme Court - Morris v. Slappy, 461 U.S. 1 (1983)
Before EASTERBROOK, RIPPLE and EVANS, Circuit Judges.
OrderSeven accused participants in the drug distribution network run by Thomas Lee Ridley III pleaded guilty; ten more were tried in two groups. United States v. Duff, No. 94-4002 (Jan. 29, 1996), affirmed convictions of Ridley and some of his major confederates. Five mid-level distributors were tried and convicted in a second trial of conspiring to distribute cocaine base; we have consolidated their appeals.Followers in the Ridley organization were not pikers; the organization distributed large quantities for years (at its peak, the Ridley organization handled more than 30 kilograms of cocaine monthly). Each of the five was held accountable for at least 1.5 kilograms of crack cocaine. In light of the defendants' criminal history and other aggravating factors, their sentences are severe: 440 months for Troy Bibb, 330 months for Anthony Vaughn, 480 months for Eddie Gregory, 490 months for Robert Bryant, and 450 months for Porter Tapps.1. Bibb, Bryant, and Tapps contend that the evidence does not support their convictions for conspiracy. Their contentions are variants of the jury instruction arguments we addressed in Duff. Those defendants argued that the jury should have been instructed that, unless they joined exactly the conspiracy alleged in the indictment, they were entitled to be acquitted. We disagreed because a variance between the indictment and the proof is not fatal. Conspiracies may be organized into cells, and the fact that members of one cell do not deal directly with (or even know the identities of) members in another cell does not prevent conviction. Bibb, Bryant, and Tapps make the same style of argument by contending that they did not know all of the other conspirators, that they did not participate for the entire duration of the conspiracy, and so on. (Bibb, for example, was in prison until March 1993 on other charges, and the conspiracy ended that fall, so his participation was necessarily abbreviated.)Proof in this case came from eyewitness testimony (including testimony of the defendants' former confederates), photographs, and wiretaps, as well as from controlled purchases of drugs and seizures at the time of arrest. The jury was entitled to credit this evidence and to conclude that Bibb, Bryant, and Tapps were distributors in the Ridley organization (which is to say that they obtained cocaine from higher-ups, sometimes cooking cocaine hydrochloride into crack, and resold the drug themselves and through their own sub-distributors). They used the Ridley organization's principal marketing sites in Indianapolis, and Bibb participated in the group's market-extension activity in Louisville. Whether they were sufficiently integrated into the organization to support a conclusion that they joined the large-scale conspiracy charged in the indictment was a question for the jury. See United States v. Lechuga, 994 F.2d 346 (7th Cir.1993) (en banc).2. Four defendants contend that the district judge abused his discretion by limiting them to the 10 peremptory challenges provided by Fed.R.Crim.P. 24(b). The last sentence of this rule reads: "If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly." The judge should have done so here, the defendants insist, because of publicity (including political campaigns) in Indianapolis reflecting antipathy to drug distribution and associated violence (including several murders) by the "Getto Boys" [sic], an arm of the Black Gangster Disciple Nation street gang. The four defendants who belonged to this gang feared that jurors would be influenced by the publicity.Peremptory challenges are designed to allow litigants to remove biased or slanted jurors whose leanings are not so serious as to amount to "cause" for removal. If the goal of impartiality can be achieved in another way, there is no (constitutional) obligation to allow even a single peremptory challenge. Mu'min v. Virginia, 500 U.S. 415, 424-25 (1991). The district court conducted extensive screening of the jurors and excused those who showed even the slightest effect of publicity. Indeed, the judge excused all those about whom any of the defendants expressed any concern. It is therefore unclear what they would have done with additional peremptory challenges. The defendants do not identify a single juror who in their opinion could and should have been excused by an extra peremptory challenge. We therefore conclude that the district court did not abuse its discretion (the applicable standard, see United States v. Cochran, 955 F.2d 1116, 1121 (7th Cir.1992)). The defendants had a fair trial before an unbiased jury. Watson v. Camp, 848 F.2d 89, 91 (7th Cir.1988).This analysis also shows that the district judge did not abuse his discretion by denying the defendants' motion, on the first day of trial, for a lengthy continuance until after the next elections in Indiana. The point of this request was to reduce the influence of publicity contemporaneous with the trial. The district court's questioning and exceptional willingness to excuse members of the venire achieved this end. There was no need for delay, which would have inconvenienced the many witnesses assembled for the trial.3. Tapps contends that his trial counsel rendered ineffective assistance. In part this argument reflects a belief that strategic disagreements or personal antagonism between lawyer and client always amount to ineffective assistance, which they do not. Morris v. Slappy, 461 U.S. 1 (1983). To the extent Tapps questions particular shortcomings (such as the inability to elicit favorable evidence from particular witnesses), it is a futile point to advance on direct appeal--as Tapps belatedly recognized. Two weeks after oral argument, he moved to withdraw the issue from consideration, so that it could be raised by petition under 28 U.S.C. 2255 if a more adequate record could be assembled. This motion is granted.4. Bibb, the non-member of the Getto Boys, asked for a separate trial. The district judge denied this motion, and we conclude that this was not an abuse of discretion under the standards of Zafiro v. United States,Try vLex for FREE for 3 days
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