United States v. Dillard
Opinion of the Court
With the assistance of a cooperating informant, law enforcement surveilled multiple *760heroin sales involving Lance Dillard and Gregory Chester. On the basis of the evidence obtained in that surveillance, Mr. Dillard and Chester were arrested and charged in a three-count indictment: two counts of distribution of heroin, in violation of
Mr. Dillard now appeals. He concedes that the district court generally expressed unwillingness to allow testimony that related to his alleged membership in the Hobos, a particularly notorious gang. Nevertheless, he argues, the court allowed numerous law enforcement officials to describe their positions in terms that strongly suggested that Mr. Dillard was a member of a gang and allowed one reference to the Hobos in cross-examination of a lay witness. He also contends that, after a single juror was exposed to inflammatory press coverage, the court's decision to dismiss only that single juror was not sufficient remedial action.
We conclude that the district court did not err in its evidentiary rulings and that the jury was not exposed to significant prejudicial testimony. Furthermore, the district court took adequate steps to protect against any further potential juror bias. Accordingly, we affirm the judgment of the district court.
I
BACKGROUND
A.
In mid-2011, Mr. Dillard and Chester were engaged in a conspiracy to distribute heroin. On three occasions during the course of the conspiracy, the pair sold heroin to a man named Keith Daniels. Daniels was, at the time of the sales, a confidential informant to law enforcement.
On April 8, 2013, Mr. Dillard and Chester were the subjects of separate federal criminal complaints charging distribution of heroin. In the affidavit attached to each complaint, an FBI agent detailed several recorded or monitored transactions with Daniels, although the affidavit referred to him only as the "cooperating source."
The Government introduced substantial evidence in the course of several days of trial testimony. The evidence included: audio recordings of calls and meetings between Daniels and the defendants to arrange heroin sales; voice identification of the defendants on the calls by law enforcement officers; a separate audio recording of Chester in prison in which he stated *761that someone had "wor[n] a wire on" him;
B.
Prior to trial, Chester filed a motion in limine to prohibit the Government from introducing testimony regarding the defendants' membership in, or association with, a gang, including the Hobos gang. The district court stated that its tendency was "to err, if at all, on the side of not permitting" evidence of gang affiliation.
Scattered references to gangs occurred throughout trial, sometimes over Mr. Dillard's or Chester's objections and sometimes not. The lion's share of references came from law enforcement officers describing their assignments or their units.
On the fifth day of trial, a lay witness, Dennis Myers, was called by Mr. Dillard's attorney. Myers testified that one of the voices on a particular recorded call with Daniels was not one of the defendants, but was his own son, Patrick Davis. He also testified that the phone number used on that call was for Davis's phone, and that he had used that number in the past. Finally, he noted that Davis and Daniels were first cousins. On cross, the Government asked Myers if he recognized any other voices in the conversation and if he knew his son's friends. Myers said that he did because "[t]hey all live together."
At that point, Chester's counsel objected that it was beyond the scope of direct. In a sidebar, the court disagreed, and the Government further clarified that, given the conspiracy charge, it was possible they were working with "other people like Patrick Davis" to accomplish the sales.
[J]ust so I can be clear, Patrick Davis is a Hobo. He is in the gang.... Gregory Chester is a Hobo. That is how all of these guys know each affiliation.... [T]his witness is stepping right into [sic], and defense counsel is opening that door.
And it is very troubling to us after all the work-we have stayed out of the gang side of the thing.... I cannot cross-examine this person on how these people all know each other, his bias against the Government, his bias against-in favor of certain individuals, and trying to protect them because of their gang affiliations, your Honor. I have to go there.13
Chester's attorney objected that it was prejudicial to Chester and that Myers was not his witness but Mr. Dillard's. The court responded that it "didn't anticipate that we were going to be getting into this area at all," but that "[t]he problem gets manufactured by calling this witness."
THE COURT: You know, when it comes to 403 balancing, I am as sensitive to that as anybody else. But when it has been raised by reason of calling a witness and there is this kind of connection-or arguable connection in terms of bias, I can't somehow say, well, okay, we will take a piece of this fella's evidence into mind without considering that component. If it is raised by calling the witness, it has been raised. And I didn't do it. You did.
[Mr. Dillard's counsel]: I understand, your Honor. This is going to become a RICO trial if he knows they are Hobos. Is the ruling-I just want to be clear on how far this is going to go.
THE COURT: Is what?
[Mr. Dillard's counsel]: Is the ruling-what I am concerned, is this going to basically become the RICO case? It is going to be limited to, as I understand, which I still object to-but as I understand but that whether he know these guys are Hobos-
THE COURT: He is not going to enlarge the scope of this case. We are dealing with this conspiracy. But what you have done, as I understand, by calling this fella and getting him to make this identification of his son, is to put into the case an issue that I had not anticipated was going to be in the case. That is-I cannot stuff that omelet back into the eggshell. You did it. And what the consequences are, I regret to say, they are going to be. I didn't make it. You did.17
Following the exchange, the Government attorney continued to ask about Davis's acquaintances and about the defendants. He asked how they knew each other, and Myers again stated that they all "came from the same project."
C.
On the first day of trial, the Chicago Sun-Times had published both in print and online an article referencing the trial, a larger RICO trial against Hobo members, and the murder of Daniels following the defendants' arrest. At the start of the second day of trial, the prosecutor arrived and alerted the court and the attorneys for the defendants to the article's publication the day before. The court indicated that it would inquire of the jurors whether anyone had seen the article and agreed with the prosecutor that it would be "appropriate ... to continue to admonish the jury on a daily basis to avoid the media."
The following day, a single juror, David Moskowitz, contacted the court and asked to speak with the judge. The judge then called the juror during the instruction conference with the attorneys present. Juror Moskowitz informed the judge that his wife had seen the Sun-Times article and out of concern for his safety had brought it to his attention. The juror did not believe he could set it aside and wanted to alert the court. The court excused him from further service and inquired of the juror, at the request of Mr. Dillard's attorney, whether he had spoken to anyone about the article. Juror Moskowitz indicated that he had not. No party suggested any further questioning of any of the jurors.
D.
Mr. Dillard moved for a new trial and judgment of acquittal at the close of the evidence. The court denied his motion, and the jury returned a verdict of guilty on all counts. Mr. Dillard was sentenced to the 10-year mandatory minimum on Counts One and Two, and 70 months on Count Three, each to run concurrently.
II
DISCUSSION
Mr. Dillard now claims that the court erred in its handling of the gang references and of the prejudicial media coverage and that the prosecution compounded these errors. The cumulative effect, he contends, is the denial of his right to a fair trial before an impartial jury.
A.
We first examine whether the court erred in allowing references to the term "gang" or "Hobos" at trial. We review the district court's rulings on evidentiary issues for an abuse of discretion. See United States v. Ozuna ,
Our cases have "long recognized the substantial risk of unfair prejudice attached to gang affiliation evidence, noting such evidence is likely to be damaging to a defendant in the eyes of the jury and that gangs suffer from poor public relations." United States v. Irvin ,
Mr. Dillard claims that our decision in Irvin ,
In Irvin , we acknowledged that "[w]e have consistently held that, under appropriate circumstances, gang evidence has probative value warranting its admission over claims of prejudice."
It may be true that common membership in any group, whether it be a gang or a church group, makes it more likely that two people are involved in a given activity together, illegal or not. The inference is certainly weak, however, if the group itself is not somehow connected to the activity at issue. In other words, the fact that [the defendants] are members of a motorcycle club is not especially probative of whether they jointly ventured to distribute drugs, unless the motorcycle club is shown to be involved with drugs. In this case, we are missing that critical connection linking the motorcycle gang with drug trafficking, or any criminal activity for that matter. The government admitted at oral argument that it did not present any evidence demonstrating that the Diablos was a criminal organization involved in the distribution of drugs.
We revisited the issue of gang evidence in United States v. McMahan ,
Irvin does not forbid all gang evidence. But, more importantly, nothing about Irvin is particularly relevant in the present case. Irvin dealt, as it says, with "gang evidence"-that is, the defendant's membership in a gang, the Diablos motorcycle gang. The evidence included testimony about a large gang tattoo on a defendant's back, two rings (one which said Diablos and one with a devil's head), a picture of a vest with gang insignia, a Diablos "greeting card," a Diablos wallet, and other gang-related personal effects. One defendant testified that a motorcycle gang would kill him if he testified. The evidence in Irvin was found to be prejudicial and not harmless. The evidence in the present case cannot be compared in any meaningful way with that in Irvin . Here, the officers said they did gang investigations; they did not say that is all they did. They did not say that the defendants were members of a gang. In total, the testimony lasted a few minutes in a two-week trial. The evidence was not unfairly prejudicial, but even were we somehow to find prejudice, we would also find the admission of the evidence harmless.
Id. at 422.
Although each case must be assessed on its own facts, Irvin and McMahan are helpful in our review of the district court's exercise of discretion. Mr. Dillard notes, correctly, that the number of references in his case exceed those in McMahan . In character, however, they are virtually identical. The Government introduced no direct evidence of Mr. Dillard's alleged gang affiliation. No extraordinarily prejudicial evidence, such as the satanic symbolism in Irvin , ever reached the jury. When its witnesses mentioned gangs generically as part of a discussion of their law enforcement assignments, the Government did not belabor the point or introduce any evidence about the Hobo gang itself.
*767Our chief concern is the Government's questioning of Myers and the Government attorney's use of the term "Hobo." Mr. Dillard called Myers to provide an alternate voice identification for one of the recorded calls involving Daniels. He claimed that it was the voice of his own son, Davis, rather than Mr. Dillard. The court thereafter ruled that it would allow the Government to question Myers about the relationship of Davis and the defendants, including common gang membership. The Government asked how the men knew each other, and also asked Myers if he had heard the term "Hobo." Myers's answers did not show common gang membership and said nothing about the Hobos; he said only that the two had grown up together and lived together. The court committed no error in permitting the line of questioning. The testimony the Government attempted to elicit would have been probative of bias as a general matter and generally admissible. See Ozuna ,
In certain cases, the district courts have taken even more cautious approaches to gang references, for example by allowing or instructing counsel to lead witnesses "during the testimony that might mention gangs." See, e.g. , United States v. Harris ,
B.
Mr. Dillard also claims that the district court erred in its handling of the risks of exposure to prejudicial media coverage. We review a district court's handling of the risk of prejudice posed by trial publicity for an abuse of discretion. United States v. Berry ,
After the jurors had been admonished once by the district court to avoid any media coverage which might expose them to extra-record evidence in the case, the Sun-Times published a brief article about the trial, noting its connection to a much larger RICO trial, identifying the defendants as members of the Hobo gang, and stating that the confidential informant in this case, Daniels, was shot more than a dozen times in the face in retaliation for "snitching."
After the story was republished online by another national media outlet, the court met with counsel and decided that the appropriate course would be to question the jury collectively about whether they receive news from online sources. If some jurors did receive news from such sources, those jurors would be questioned individually about what sources they used to ascertain whether any juror had been exposed to the story. In the collective questioning of the jury, several jurors admitted to generally reading online news, but, in individual questioning, none of the jurors indicated that they routinely read the sources that had published the article. Several indicated that they had avoided local media during the trial. At that point, no party indicated that further questioning or action was required. Days later, Juror Moskowitz contacted the court to indicate that the piece had been sent to him, and he also denied speaking to anyone else about the article. Again, no further action was requested.
Mr. Dillard now claims that the article posed a danger of extreme prejudice. In his view, the likelihood of that prejudice was so great, given one juror's admitted exposure, that the court's treatment of the issue was inadequate.
A district court's obligation in cases involving prejudicial publicity is longstanding and straightforward:
[T]he procedure required by this Circuit where prejudicial publicity is brought to the court's attention during a trial is that the court must ascertain if any jurors who had been exposed to such publicity had read or heard the same. Such jurors who respond affirmatively must then be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity. However, if no juror indicates, upon inquiry made to the jury collectively, that he has read or heard any of the publicity *769in question, the judge is not required to proceed further.
Margoles v. United States ,
In assessing the severity of the threat, it is noteworthy that this was not a case involving the kind of widespread prejudicial publicity that has concerned our court in other cases. See, e.g. , United States v. Malsom ,
Mr. Dillard presents two concrete objections to the district court's handling of the publicity issue: the court failed to strongly and repeatedly admonish the jury to avoid media coverage and failed to individually question the jurors again after Juror Moskowitz called to report his own exposure and was excused.
With respect to frequency, the court instructed the jurors a total of three times to avoid the media or extra-record material. Certainly, there are cases in which courts have gone further. Mr. Dillard points to United States v. Daddano ,
The court in this case declined to repeat the admonition after excusing Juror Moskowitz and specifically stated that it believed the jury capable of following the first instruction. This approach is consistent with our general presumption that jurors follow the court's instructions. See, e.g. , United States v. Rodriguez ,
The district court made careful fact-specific determinations grounded in prevailing standards. Its understanding of the law was correct; its factual assessment was *770reasonable; there was no abuse of discretion.
Conclusion
The district court did not err either in its treatment of the incidental references to gangs at trial or in its ruling that the defense questioning of Myers opened the door to the Government's further inquiries about gangs. There was no abuse of discretion in the court's balancing, under Rule 403, of the danger of unfair prejudice of the statements against their probative value. Furthermore, the court followed the procedures set forth in our cases to assure that Mr. Dillard faced a fair and impartial jury. Accordingly, the judgment of the district court is affirmed.
AFFIRMED
Circuit Judge Posner retired on September 2, 2017, and did not participate in the decision of this case, which is being resolved by a quorum of the panel under
Chester was charged only in Counts One and Three and convicted of both. Mr. Dillard was charged and convicted on all three counts.
R.1 at 3.
R.283 at 237 (Trial Tr. 729).
R.287 at 16.
Examples of this testimony include one FBI agent noting that he "typically [does] gang, drug investigations," R.280 at 6; that he uses a particular technique in investigations "centered on drugs and gangs,"
R.282 at 38-39 (Trial Tr. 338-39).
R.284 at 44 (Trial Tr. 791).
R.281 at 4 (Trial Tr. 94).
The Government also notes that, like United States v. McMahan ,
Our determination that the district court committed no error in permitting these references, in context and without a tie to Mr. Dillard or any other particular aggravating circumstances, does not suggest that incidental references to gang membership are always admissible. The test remains a balance of the probative value against the conceded prejudice attached to gang affiliation, consistent with Federal Rule of Evidence 403.
In United States v. Harris ,
The court and the prosecutor brought the issues to the parties' attention, and there was no contemporaneous disagreement with the court's approach to it. The Government therefore argues that the issue was waived or forfeited. We are inclined to agree that the issue was waived by Mr. Dillard. The question of how to handle publicity was raised and discussed on multiple occasions in the trial court. At defense counsel's request, the court asked Juror Moskowitz whether he had spoken to anyone else. Mr. Dillard's attorney never suggested a more aggressive response in the course of trial. Even if we were to consider the issue not waived by counsel's apparent assent to the district court's approach because no objection was made, we would review for plain error. See United States v. Olano ,
Reference
- Full Case Name
- United States v. Lance DILLARD, also known as Double
- Cited By
- 3 cases
- Status
- Published