United States of America v. Byron Brown

Chicago, IL - Criminal defense lawyer represented defendant with the Racketeer Influenced and Corrupt Organizations (RICO) Act charges.

This case offers a window into the vi‐

olent and ruthless world of the Hobos street gang, which op‐

erated in Chicago from 2004 to 2013. With the credo, "The

2 Nos. 17‐1650 et al.

Earth is Our Turf,” the Hobos worked to build their street rep‐

utation and control certain areas on Chicago's south side. Ten

gang members were charged and convicted for violations of

the Racketeer Influenced and Corrupt Organizations (RICO)

Act, among other crimes. Nine of those defendants have

joined in the present appeals: Byron Brown, Gabriel Bush,

Gregory Chester, Arnold Council, William Ford, Rodney

Jones, Paris Poe, Derrick Vaughn, and Stanley Vaughn. We

find no reversible error in the convictions for any of the de‐

fendants. Nor do we find any error in any of the sentences,

except for Chester's, which must be revisited.

I

A

The defendants now before us were the core group that

formed the Hobos. Although the Hobos did not have a struc‐

ture as firmly hierarchical as that found in many gangs, it did

have a leader (Chester) and senior members (Council, Bush,

and Poe). Most members had roots in other gangs, such as the

Gangster Disciples (GDs) and Black Disciples (BDs).

We need not recount all of the Hobos' multifarious crimi‐

nal activities. We focus instead on the specific incidents the

government emphasized at trial. Where necessary, we include

further details. Generally speaking, those activities fell into

three broad categories: drug trafficking, murder(including at‐

tempted murder), and robbery.

Drug Trafficking. The Hobos ran many drug lines through‐

out Chicago's south side. Defendant Bush managed two her‐

oin lines, known as "Cash Money” (identifiable by the bag‐

gies' green dollar signs) and "X‐Men” (identifiable by the red

Xs on the baggies). Ford and others sold the Cash Money line

Nos. 17‐1650 et al. 3

at 47th Street and Vincennes Avenue, and Hobo‐associate

Kevin Montgomery sold Cash Money at 51st Street and Mar‐

tin Luther King Drive. Members of another gang known as

Met Boys sold X‐Men at 51st Street and Calumet Drive. Bush

also had a drug line at the Ida B. Wells housing project.

Council and other Hobos oversaw drug lines at the Robert

Taylor Homes, selling "Pink Panther” marijuana and crack co‐

caine (so named for the Pink Panther logo on their baggies).

Derrick Vaughn (to whom we refer as Derrick, to differentiate

him from his brother and co‐defendant, to whom we refer as

Stanley) sold cocaine at 47th and Vincennes. The Hobos also

supplied drugs to each other: Council provided marijuana

and crack cocaine to various Hobos, and Chester supplied

heroin.

Murders and Attempted Murders. The Hobos liberally used

violence to retaliate against rival gangs, harm people who co‐

operated with law enforcement, and defend their drug traf‐

ficking territory. The Hobos had long‐running rivalries with

several other gangs, including the BDs and associated BD fac‐

tions such as New Town and Fifth Ward, the Row GDs, and

the Gutterville Mickey Cobras. These rivalries precipitated

numerous shootings.

For example, in April 2006, Fifth Ward BD Cordale Hamp‐

ton and his uncle were driving when they were shot at by a

passenger in a car driven by Stanley. Both were hit—Hamp‐

ton on his neck, side, leg, and arm, and his uncle on his head—

but both survived. Two months later, in June 2006, Chester

was leaving his girlfriend's apartment, which was located in

the New Town BDs' territory, when he was shot (amazingly

not fatally) 19 times. In September 2006, occupants of a car

4 Nos. 17‐1650 et al.

shot at Chester while he was at a southside car wash. The bul‐

lets struck him but did not kill him, and Poe fired back at the

car to protect Chester. Chester, believing the BDs were re‐

sponsible for these shootings, put out a $20,000 bounty on the

leader of the New Town BDs, Antonio Bluitt. The bounty,

however, did not intimidate Bluitt. Instead, Bluitt announced

a retaliatory bounty on Chester and Council, sparking more

violence.

In February 2007, Derrick was at a local Hobos hangout, a

barbershop, when he saw Fifth Ward BD Devin Seats outside

a nearby shop. Derrick opened fire, hitting Seats multiple

times. In June 2007, while riding in a car with Ford, Council,

and Chad Todd (a Hobo‐turned‐cooperator), Bush shot at

Bluitt‐associate Andre Simmons and Simmons's cousin Dar‐

nell. He hit them several times, causing Andre to lose an eye.

Later that month, Bush, Todd, and the Vaughn brothers shot

New Town BD Jonte Robinson nine times as he was walking

into a daycare center to pick up his son.

In July of the same year, Bush, Ford, and Todd spotted sev‐

eral teenagers they thought were Fifth Ward BDs. Bush and

Ford shot the teenagers, striking one of them in the face. The

Hobos were mistaken: the victims had no gang affiliation. A

month later, Council and Bush shot New Town BD Eddie

Jones.

In September 2007, Bush, Council, Derrick, Ford, Stanley,

and others made good on Chester's bounty by killing Bluitt

and Fifth Ward BD Gregory Neeley in a drive‐by ambush.

Bluitt, Neeley, and others were sitting in a Range Rover after

leaving a funeral when the attackers drove by in a four‐car

caravan, firing at the Range Rover. That same month, Bush

Nos. 17‐1650 et al. 5

and Council killed Terrance Anderson, who managed a com‐

peting drug line. Bush and Council shot Anderson five times

while he was attending a reunion party for the Robert Taylor

Homes.

Rival gang members were not the Hobos' only targets.

They also retaliated against cooperators. The trial evidence

highlighted two such victims—Wilbert Moore and Keith Dan‐

iels—both of whom the defendants killed because of their

work for law enforcement.

Moore dealt drugs in the Ida B. Wells housing projects. In

2004, he started cooperating with the Chicago Police Depart‐

ment (CPD). Information he provided led to the search of an

apartment from which Council supplied crack cocaine. Dur‐

ing the search, CPD officers seized cocaine, crack cocaine, her‐

oin, cannabis, and firearms from the apartment. Council fig‐

ured out that Moore was the informant.

In January 2006 Council and Poe, with Bush's assistance,

killed Moore. Bush spotted Moore's car parked outside of a

barbershop and made a phone call. Council and Poe quickly

arrived on the scene. As Moore left the barbershop, Poe fired

at him from Council's car. Moore attempted to flee, but he

tripped in a nearby vacant lot, allowing Council and Poe to

catch up to him. Poe immediately shot him in the face.

Daniels was Council's brother and a Hobo. In 2011 he be‐

gan providing information about the Hobos to law enforce‐

ment. He also participated in three controlled buys of heroin

from Chester and another Hobo, Lance Dillard. Suspecting

something, the Hobos decided to silence him. Ford sneaked

into Daniels's apartment, pulled out a gun, and told Daniels

to take a ride with him. Daniels refused and, soon after, the

6 Nos. 17‐1650 et al.

FBI temporarily relocated him. But that did not prove to be

enough.

On April 4, 2013, Daniels testified about the Hobos and his

controlled buys before a federal grand jury. A week later,

Chester was arrested on a criminal complaint that alleged that

Chester distributed heroin to Daniels. Chester told the arrest‐

ing agents that he knew Daniels was the informant. Shortly

after Chester's arrest, Poe cut off his electronic monitoring

bracelet, and on April 14, 2013, Poe murdered Daniels in front

of Daniels's girlfriend and children.

Robberies. The Hobos frequently conducted robberies,

home invasions, and burglaries. A few vivid examples suffice.

At a nightclub in June 2006, Poe robbed NBA basketball

player Bobby Simmons of a $100,000 necklace. A car chase fol‐

lowed, and Poe shot at Simmons's car from Council's car.

Later in 2006, Brown, Jones, and a Met Boy entered a drug

dealer's home and shot, punched, and stabbed him for infor‐

mation about the location of his drugs. They took $20,000

worth of marijuana and gave some to Council.

In 2007, Bush, Council, and Stanley robbed a heroin sup‐

plier. In July 2008, Brown and Jones burglarized a home.

While fleeing from police, they crashed into a car driven by

Tommye Ruth Freeman, an elderly woman, killing her. In No‐

vember 2008, Council and three other Hobos robbed a cloth‐

ing store called Collections, stealing merchandise worth

$17,488.

We could go on, but the picture is clear: the Hobos were a

violent, dangerous gang, and each of the defendants in this

case was an active participant in its activities.

Nos. 17‐1650 et al. 7

B

Before we proceed to the defendants' many contentions,

we offer a brief overview of the charges. Of the nine defend‐

ants involved in these appeals, three pleaded guilty to one

count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d)

(Count 1): Brown, Jones, and Stanley. Brown also pleaded

guilty to one count of murder in aid of racketeering, in viola‐

tion of 18 U.S.C. § 1959(a) (Count 4), for the murder of Eddie

Moss. The remaining six defendants proceeded to trial. The

following chart shows who among the latter group was con‐

victed and for what:

# Charge (Violated Statute)

Bush

Chester

Council

Derrick

Ford

Poe

1 RICO Conspiracy (18 U.S.C.

§1962(d))

G1 G G G G G

2

Murder of Moore in Aid of

Racketeering (18 U.S.C.

§1959(a)(1))

G G

3

Murder of Anderson in Aid of

Racketeering (18 U.S.C.

§1959(a)(1))

G

4

Murder of Bluitt in Aid of

Racketeering (18 U.S.C.

§1959(a)(1))

G

1 The letter "G” indicates guilty; "NG” indicates not guilty.

8 Nos. 17‐1650 et al.

5

Murder of Neeley in Aid of

Racketeering (18 U.S.C.

§1959(a)(1))

G

6

Obstruction of Justice through

Murder of Daniels

(18 U.S.C. §§1503(a) & (b)(1))

G

7

Use of Firearm During Crime

of Violence (Robbery of Collec‐

tions) (18 U.S.C. §924(c))

G

8 Possession of Firearm by a

Felon (18 U.S.C. §922(g)) G

9

Possession with Intent to Dis‐

tribute Marijuana (21 U.S.C.

§841(a)(1))

G

10

Possession of Firearm in Fur‐

therance of Drug Trafficking

Crime (18 U.S.C. §924(c))

NG

The trial lasted about four months, and more than 200 wit‐

nesses testified. The jury found all six defendants guilty of all

counts, except for the charge against Ford in Count 10. The

district court sentenced all the defendants to lengthy terms in

prison.

Eight of the defendants have appealed from their convic‐

tions, their sentences, or both; defendant Jones's attorney has

filed a no‐merit brief pursuant to Anders v. California, 386 U.S.

738 (1967). We have sorted the myriad arguments before us

into five different major headings: Section II addresses the

sufficiency of the evidence presented at trial; Section III tack‐

les various evidentiary challenges; Section IV addresses sen‐

tencing contentions; Section V discusses Brown's individual

Nos. 17‐1650 et al. 9

arguments; and Section VI addresses the Anders brief for de‐

fendant Jones.

II

We begin with the defendants' challenges to the suffi‐

ciency of the evidence. Such challenges face a high hurdle: we

afford great deference to jury verdicts, view the evidence in

the light most favorable to the jury's verdict, and draw all rea‐

sonable inferences in the government's favor. United States v.

Moreno, 922 F.3d 787, 793 (7th Cir. 2019). We may set aside a

"jury's verdict on the ground of insufficient evidence only if

no rational trier of fact could have agreed with the jury.”

Cavazos v. Smith, 565 U.S. 1, 2 (2011).

A. Count 1 – RICO Conspiracy

1. Joint Arguments

Chester, Council, Bush, Derrick, Ford, and Poe all argue

that there was insufficient evidence to support the jury's

guilty verdicts on Count 1. As we noted before, Count 1

charged these six under RICO with conspiring to engage in a

racketeering enterprise known as the Hobos, in violation of 18

U.S.C. § 1962(d). To prove a RICO conspiracy, "the govern‐

ment must show (1) an agreement to conduct or participate in

the affairs (2) of an enterprise (3) through a pattern of racket‐

eering activity.” United States v. Olson, 450 F.3d 655, 664 (7th

Cir. 2006); see Salinas v. United States, 522 U.S. 52, 61–66 (1997).

The defendants contend that there was insufficient evidence

that the Hobos were an enterprise.

Under the RICO statute, an "enterprise” includes "any in‐

dividual, partnership, corporation, association, or other legal

entity, and any union or group of individuals associated in

10 Nos. 17‐1650 et al.

fact although not a legal entity.” 18 U.S.C. § 1961(4). An asso‐

ciation‐in‐fact includes any "group of persons associated to‐

gether for a common purpose of engaging in a course of con‐

duct.” Boyle v. United States, 556 U.S. 938, 946 (2009). The Su‐

preme Court reads this definition broadly. An association‐in‐

fact under RICO need not have any structural features beyond

"a purpose,relationships among those associated with the en‐

terprise, and longevity sufficient to permit these associates to

pursue the enterprise's purpose.” Id.

The defendants argue that the government failed to prove

the necessary agreement. They admit that they came together

at different times to engage in crimes, but they contend that

they were no more than "independent participants involved

in unrelated criminal activity operating [without a] common

purpose.” They emphasize that the Hobos had no rules. Alt‐

hough most gangs allegedly have initiations, treasurers, dues,

and manifestos, the Hobos did not bother with those formali‐

ties.

The defendants also dispute the government's contention

that the Hobos' loyalty and protection of one another was in‐

dicative of common purpose. The evidence on which the gov‐

ernmentrelies, they argue, showed only that this bond existed

in certain individual cases, rather than being a feature for all

members of the gang. For example, while Chad Todd initially

claimed that the Hobos protected one another, he later admit‐

ted that he was willing to kill only for Bush and not for any

other Hobo. Todd also testified that at one point Bush wanted

to kill the Vaughn brothers for attempting to extort him.

Finally, the defendants assert that the government failed

to prove that the Hobos had an internal hierarchy, and with‐

Nos. 17‐1650 et al. 11

out any pecking order, there could be no coordination or com‐

mon purpose. The government labeled Chester as the leader

of the Hobos, but Todd testified that he never saw Chester

send money down to any members of the gang below him,

and he never saw people send money up to Chester. Each of

the six of them, the defendants argue, did no more than en‐

gage in "[a]ccidentally parallel” criminal activity that hap‐

pened occasionally to overlap; they shared no coordinated

purpose.

Perhaps that is one way to view the evidence, but it is not

the only one. The defendants' course of conduct, "viewed in

the light most favorable to the verdict, was neither independ‐

ent nor lacking in coordination.” United States v. Hosseini, 679

F.3d 544, 558 (7th Cir. 2012). Together the defendants worked

to control an exclusive territory. They earned money through

drug dealing and robberies, protected each other, and killed

rival gang members and others who posed threats, including

government cooperators.

Many witnesses testified that the gang was a distinct, iden‐

tifiable group. We name a few. Jones and Todd (Hobos who

became cooperators) confirmed that an organization called

the Hobos existed and they were members. Todd considered

Derrick, Stanley, and Ford to be Hobos, and Chester to be the

leader of the Hobos. He also said that Council, Poe, and Bush

each had a "position of authority.” The jury reasonably could

see this as evidence of a hierarchy, albeit a loose one. Jones

testified that Council, Bush, Derrick, Ford, and Chester,

among many others, were also Hobos. Bland and Montgom‐

ery described the Hobos as a gang. Cashell Williams, a Fifth

Ward BD, testified that his gang had a rivalry with the Hobos.

12 Nos. 17‐1650 et al.

Additional evidence showed that the Hobos were not just

a group of criminals acting individually. They protected each

other and retaliated on behalf of one another. For example, all

the trial defendants except for Poe were involved in the mur‐

ders of Bluitt and Neeley. In so doing, they were carrying out

Chester's orders. In addition, Bush, Council, Ford, and Todd

shot the Simmonses, and Bush, Derrick, Todd, and others shot

Jonte Robinson. The jury was entitled to conclude that the Ho‐

bos shot the BDs to retaliate against a rival gang and to control

Hobos territory.

And this was not all. Many other crimes illustrated the re‐

lationships among the Hobos and their network. Council and

Poe murdered Moore based on a tip from Bush. Council and

Bush murdered Anderson. Council and Poe robbed Bobby

Simmons. And the Hobos shared weapons to commit these

crimes.

The jury also heard evidence about the defendants' coop‐

erative drug trafficking. As we noted earlier, Bush ran the

Cash Money and X‐Men drug lines, supplying the drugs and

receiving the proceeds. Council operated the Pink Panther

drug line. They did not run these drug lines alone. Ford man‐

aged certain Cash Money drug spots, and Montgomery col‐

lected money for Bush. Bush and Council occasionally used

the same apartment to package drugs. This was evidence

showing that the Hobos' drug activity was interconnected

and a source of income for the gang.

The Hobos also showed their unity through tattoos and

hand signs. Chester's tattoo says "Hobo” and "The Earth Is

Our Turf,” with images of firearms, a bag of money, and two

buildings. Poe has Hobos tattoos. One says "Cheif [sic] Hobo”

and the other says "The Earth Is Our Turf” and "Hobo.”

Nos. 17‐1650 et al. 13

Ford's tattoo says "hobo 4Life.” Poe, Chester, and other Ho‐

bos also stitched "Hobo” into their cars' headrests.

Although there is much more evidence to the same effect

in the record, we have no need to rehearse all of it. Bearing in

mind the standard of review for challenges to the sufficiency

of the evidence, we have no trouble concluding that the evi‐

dence before this jury was sufficient to establish a RICO en‐

terprise.

2. Derrick Vaughn

Derrick contends that even if there was a Hobos enter‐

prise, he was not a member of it and he did not conspire with

the Hobos. He concedes that he sold a small quantity of drugs

and was present at the scene of several Hobos crimes, but he

insists that there was no evidence that he was a participant

(rather than a mere bystander) in those crimes.

In order to support Derrick's conviction on Count 1, the

government was required to prove "that another member of

the enterprise committed ... two predicate acts and that [Der‐

rick] knew about and agreed to facilitate the scheme.” United

States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018) (internal

quotation marks omitted). "It did not ... need to show that he

was personally involved in two or more of the predicate acts.”

Id.

The record contains ample evidence of Derrick's partici‐

pation in the Hobos' racketeering activity. For example, in

recorded conversations between Derrick and Courtney John‐

son (a government cooperator), Derrick admitted to Johnson

that he participated in the Bluitt and Neeley murders. He de‐

scribed hearing his co‐conspirators' gunshots and mentioned

that he saw the victims dead. Even though Derrick may not

14 Nos. 17‐1650 et al.

specifically have uttered the word "Hobos,” he nevertheless

revealed his ties to and knowledge of the Hobos when he

commented that the purpose of the murders was to retaliate

on Chester's behalf because the BDs earlier had shot Chester.

Derrick also described shooting Seats: "So I come from

around the gate I boom, boom, boom[.]” And Derrick dis‐

cussed the Hobos' attempts to eliminate the BD's competing

drug trafficking: "[T]hey had a line down there ... we put a

stop to that.”

Several of Derrick's co‐defendants also implicated him. In

a recorded conversation, Ford mentioned Derrick's involve‐

ment in the Bluitt and Neeley murders. Jones similarly testi‐

fied that Derrick was a passenger in Ford's car during the

drive‐by murders of Bluitt and Neeley and that Derrick was

armed.

The jury was entitled, based on the evidence before it, to

conclude that Derrick shot Seats as part of the conspiracy.

Todd testified that he saw Derrick shoot Seats. Although Seats

himself did not see the shooter, Seats testified that he saw Der‐

rick's Grand Prix near the barbershop where he was shot and

that Derrick had threatened to kill him earlier the same day.

Derrick emphasizes that Seats described their dispute as per‐

sonal and unrelated to their respective gang affiliations, and

so, in his view, the shooting could not have been part of a con‐

spiracy. But once again, the jury did not have to accept that

interpretation of the evidence. And this jury did not. There

was also a recorded conversation in which Derrick told John‐

son that he shot Seats after seeing Fifth Ward BDs near the

barbershop. The jury evidently credited this admission and

found that the shooting furthered the conspiracy. In sum,

Derrick's individual attack on the sufficiency of the evidence

Nos. 17‐1650 et al. 15

to support his conviction on Count 1 fares no better than the

collective argument.

B. Count 2 and Additional Findings – Moore's Murder

Council and Poe were the only two defendants charged

with Moore's murder. They both argue that there was insuffi‐

cient evidence to support their convictions on this Count,

which charged them with murdering Moore in aid of the Ho‐

bos racketeering conspiracy, in violation of 18 U.S.C.

§ 1959(a)(1). Bush also joins this argument insofar as it bears

on the jury's special findings in Count 1 connecting him to

Moore's murder. The jury made the Additional Findings that

the murder was committed "because Moore was a witness in

any prosecution or gave material assistance to the State of Il‐

linois in any investigation or prosecution, either against the

defendant or another person,” and that "[the murder] was

committed in a cold, calculated, and premeditated manner

pursuant to a preconceived plan, scheme, and design to take

a human life by unlawful means, creating a reasonable expec‐

tation that the death of a human being would result there‐

from.”

The record contains ample evidence that supports both

Council's and Poe's convictions and the Additional Findings.

Several witnesses implicated the three defendants. Kevin

Montgomery, who managed one of Bush's drug lines, testi‐

fied that he was in Bush's car near 43rd Street and Langley

Avenue when he heard Bush say on his phone that "this blue

thing is out here,” referring to a blue car parked in front of the

barbershop. Montgomery also testified that a few minutes

later, Council and Poe pulled up in a Chevy Malibu. Mont‐

gomery saw Poe fire a .40 caliber firearm from the back pas‐

senger window. Bush and Montgomery then left the scene.

16 Nos. 17‐1650 et al.

That night, Bush reported to Montgomery that Moore had

been killed. Bush remarked, "I just seen that whip [car] out

there, you know. I wasn't looking forward to that either. ... So

I made that call.” He also told Montgomery that Council and

Poe "got” Moore, explaining that Council and Poe chased

Moore, Moore was "whipping” Council, and then Poe walked

up and shot him. Bush said they killed Moore because Moore

"sent the feds to [Council's] crib” and they "found a half a

book [kilo] of coke and a chopper [assault rifle].”

People who lived in the surrounding area corroborated

this account. Alan Pugh lived in an apartment building on

Langley Avenue. Through a window he saw a Black man

"running for his life,” chased by another Black man as a red

Mitsubishi Galant drove parallel to them. The first man ran

into a vacant lot, where he slipped near a van. The second was

"upon him almost instantly” and shot him in the head. A third

man got out of the red car, walked to the victim, and then the

two men "calmly” left in their car. Tiajuana Jackson, who

lived nearby, testified that she heard gunshots, ran down‐

stairs, and saw a maroon vehicle speeding east on 43rd Street

before making a left on Langley.

Offering further support, Marcus Morgan, a Met Boy, tes‐

tified that, while housed together at Cook County Jail, Poe

told him that he killed Moore. Rodney Jones testified that

Council told him that Moore had sent the police to Council's

house. And Poe told Jones that Moore was holding his hands

up, but Poe shot him anyway. Brian Zentmyer, Poe's cellmate,

testified that Poe bragged about Moore's murder and ex‐

plained that he killed Moore because Moore "turned state ev‐

idence on another Hobo,” Council.

Nos. 17‐1650 et al. 17

Physical evidence corroborated the witnesses' testimony.

Casings were recovered near the barbershop and near

Moore's body, suggesting that the shooting started near the

barbershop and continued into the vacant lot. A .40 caliber

cartridge was found near the blue car, corroborating Mont‐

gomery's testimony about the type of weapon. Moreover,

toolmark analysis established that one of the guns used in

Moore's murder had also been used in the shooting of

Cordale Hampton and his uncle—also a Hobos operation.

Council, Poe, and Bush argue that Montgomery's and

Jones's testimony was incredible as a matter of law. They

point to several inconsistencies. First, Montgomery described

Council's car as a burgundy "boxed” Chevy Malibu, whereas

Pugh described a red Mitsubishi Galant. In addition, Mont‐

gomery originally stated that Bush was driving his own tan

Pontiac Bonneville, but then later he said that Chester owned

the car. Montgomery also testified that Bush had told him that

Poe shot and killed Moore after Moore and Council were

fighting. Yet Pugh did not mention a fight in his testimony. In

addition, the defendants point to discrepancies between

Montgomery's and Pugh's descriptions of the route Council

took in following Moore. They also note that while Jones tes‐

tified that Poe told him that he put his gun "up under a van”

to shoot Moore, no shell casings were found under the van.

The defendants urge that these inconsistencies, added to the

fact that Montgomery and Jones had "every incentive to

falsely tailor a story to fit ... law enforcement's needs,” render

the testimony incredible as a matter of law.

Defendants overstate the problems. A determination that

testimony is incredible is reserved for extreme situations

18 Nos. 17‐1650 et al.

where, for example, "it would have been physically impossi‐

ble for the witness to observe what he described, or it was im‐

possible under the laws of nature for those events to have oc‐

curred at all.” United States v. Conley, 875 F.3d 391, 400 (7th

Cir. 2017). Nothing of that magnitude exists here; we see only

ordinary failures to recall with specificity, or perhaps dissem‐

bling. We do not dispute the basic point that there were incon‐

sistencies among the witnesses' accounts, but the jury was en‐

titled to decide which parts to credit and which to reject. As

the district court noted, "for all we know, the jurors did reject

the entire testimony of one or more of these witnesses, which

would still leave sufficient evidence to convict.” Moreover,

"[i]t is the jury's job, and not ours, to gauge the credibility of

the witnesses and decide what inferences to draw from the

evidence.” United States v. Stevenson, 680 F.3d 854, 857 (7th Cir.

2012). "We do not second guess such determinations on ap‐

peal.” Id. The jury believed that the three defendants partici‐

pated in the murder of Moore, and they have given us no rea‐

son to question that decision.

Next, the defendants argue that even if they actually com‐

mitted the murder, the government failed to present sufficient

evidence that it was "for the purpose of ... maintaining or in‐

creasing position in” the Hobos enterprise, as required under

18 U.S.C. § 1959(a)(1). The question here is whether there was

evidence permitting the jury to "infer that the defendant com‐

mitted his violent crime because he knew it was expected of

him by reason of his membership in the enterprise or that he

committed it in furtherance of that membership.” United

States v. DeSilva, 505 F.3d 711, 715 (7th Cir. 2007) (internal quo‐

tation marks omitted).

Nos. 17‐1650 et al. 19

The government's theory was that Moore was murdered

because he cooperated with the authorities and was the (un‐

named) affiant on a search warrant for Council's residence.

The defendants respond that there is no documentary evi‐

dence that supports this contention, and that the theory is

based entirely on the testimony of CPD Officer Edwin Utre‐

ras, who prepared the search warrant affidavit. Moreover, the

defendants argue, even if Moore was the informant, there was

no evidence that Council knew this, nor any evidence that this

information was communicated to Poe or Bush. Finally, the

defendants say, even if we accept the government's position

that Council knew that Moore was the informant, "at best the

government's evidence established that the murder of Wilbert

Moore was committed for personal revenge.” The criminal

case that resulted from the search was dismissed well before

the murder, and so (they conclude) the only possible motive

for the murder would be revenge.

We begin with the defendants' argument that there was

insufficient evidence that Moore had cooperated against

Council. As the district court noted, this argument was "fully

vetted at a Franks [v. Delaware, 438 U.S. 154 (1978)] hearing on

the subject of whether the search warrant for Council's apart‐

ment was based on false information.” The hearing estab‐

lished that "Moore had in fact acted as an informant and sup‐

plied the basis for the search warrant.” We see no reason to

overturn that assessment.

Next, contrary to the defendants' contentions, there was

evidence that the Hobos knew that Moore had snitched on

Council. Montgomery testified that Bush told him Moore was

killed because Moore "sent the feds to [Council's] crib,”

where they "found a half a book of coke and a chopper.”

20 Nos. 17‐1650 et al.

Council also told Jones that Moore sent the police to his house,

and Poe told Zentmyer that he killed Moore because Moore

"turned state evidence” on Council. The jury chose to credit

at least one of these witnesses. Moreover, although at the time

of Moore's murder Council no longer faced charges based on

the search, there was ample evidence that the Hobos had an

interest in punishing cooperators and deterring further coop‐

eration. Personal revenge might have been a factor in Moore's

demise, but a jury could reasonably find that maintaining or

advancing their position in the Hobos was another.

Finally, the defendants argue that there was insufficient

evidence that Moore's murder was "committed in a cold, cal‐

culated and premeditated manner pursuant to a preconceived

plan, scheme and design.” Under Illinois law, first‐degree

murder does not carry a life sentence unless certain aggravat‐

ing factors exist. Premeditation is one such factor. It requires

a "substantial period of reflection or deliberation.” People v.

Williams, 193 Ill. 2d 1, 31 (2000). That deliberation must take

place over "an extended period of time.” Id. at 37. The defend‐

ants argue that Moore's murder does not satisfy that element,

because only a few minutes elapsed between when Bush

placed a call stating that the "blue thing is out here” and when

Council and Poe drove up and began shooting at Moore.

But there is no reason why we should limit the relevant

time to the period between Bush's call and the shooting. A ra‐

tional jury could conclude that the group had hatched its plan

to murder Moore much earlier. Bush made a call referring

only to "the blue car,” yet Council and Poe knew just what he

meant. They showed up instantly and began shooting. Fur‐

thermore, the search of Council's "crib” occurred about 18

months before Moore's murder. This was enough to permit

Nos. 17‐1650 et al. 21

the jury to find that Moore's murder was cold, calculated, and

premeditated.

C. Count 3 – Anderson's Murder

Count 3 alleged that Bush murdered Terrance Anderson

in aid of the racketeering enterprise, in violation of 18 U.S.C.

§ 1959(a). Bush argues, once again, that there was insufficient

evidence to support the jury's guilty verdict. Council joins

Bush in attacking the sufficiency of the evidence for the jury's

related special findings that Council's and Bush's racketeer‐

ing activity included the commission, or at least aiding and

abetting, of Anderson's murder.

Bush does not challenge the finding that he shot Anderson

at the reunion party for the Robert Taylor Homes. He argues

instead that he did not have the requisite "intent to kill” An‐

derson. It is hard to take this point seriously, given the fact

that Bush pleaded guilty in state court to the second‐degree

murder of Anderson. There he stated under oath that he was

guilty of the charge that he "without lawful justification, in‐

tentionally and knowingly shot and killed Terrance Anderson

while armed with a firearm, and that, at the time of the killing

[he] believed the circumstances to be such that if they existed

would justify or exonerate the killing under the principle [of

self‐defense], that his belief in this was unreasonable, and con‐

stitutes a violation of [second‐degree murder statute].” These

admissions easily support the finding that he intended to kill

Anderson.

Other evidence reinforces that finding. For instance, Jones

testified that Council told him that Council and Bush mur‐

dered Anderson: Council "grabbed [Anderson], slammed

him to the ground and hit him,” and then Bush "grabbed him

22 Nos. 17‐1650 et al.

and slammed him and shot him.” Todd testified about several

conversations about Anderson he had with Bush. Bush told

Todd that Anderson was one of his rivals, because Anderson

sold drugs at the Ida B. Wells projects, where Bush also sold

drugs. Another time, Todd was sitting in a car with Bush,

Council, and Ford, when they saw Anderson walking on the

street. Ford suggested that Bush should shoot Anderson, but

Bush dismissed the idea because there were pole cameras in

the area. In addition, after Anderson shot Bush, Bush told

Todd that he had been "stalking” Anderson's prison release

date so that he could kill him.

In a recorded conversation, Ford told Todd that one of the

Brown twins saw Bush kill Anderson. Kevin Montgomery tes‐

tified that Bush had told him about the Anderson murder.

Bush described how he caught Anderson off guard: he "crept

up through the bushes” where Anderson was dancing and

"started busting at [him].” When Anderson ran, Council be‐

gan "busting at him from the other direction.”

Anderson's girlfriend confirmed the hostility between

Bush and Anderson. She had seen Anderson shoot Bush in the

hand. Anderson's brother attended the Robert Taylor reunion

party with Anderson. He saw Bush shooting a firearm (alt‐

hough he could not see the intended target), and then he saw

Bush and Council run and jump into a vehicle.

Physical evidence also supported these accounts. A base‐

ball hat containing Council's DNA was recovered from the

scene. In addition, Anderson's autopsy showed that bullets

entered from both his front and back, suggesting multiple

shooters.

Nos. 17‐1650 et al. 23

This evidence amply supports the jury's finding that Bush

shot Anderson with the intent to kill him. In any event, an in‐

tent to kill is not essential to find a first‐degree murder under

Illinois law. A person commits first‐degree murder if he in‐

tends to kill, intends to do great bodily harm to another per‐

son, knows that his acts would cause the death of another per‐

son, or knows that his acts create a strong probability of death.

720 ILCS 5/9‐1. Bush's intentionally shooting at Anderson was

enough to allow the jury to find that Bush knew, at a mini‐

mum, that his actions created a strong probability of Ander‐

son's death. The evidence of Council's involvement, summa‐

rized above, was also sufficient.

Bush and Council also argue that Bush did not kill Ander‐

son for the purpose of maintaining or increasing his position

within the Hobos enterprise. See DeSilva, 505 F.3d at 715. In‐

stead, they say, the evidence showed that Anderson and Bush

had personal animosities dating from an earlier incident in

which Anderson shot Bush. They postulate that there was no

evidence that the murder was related to the Hobos because

Bush was not carrying out an order.

A rational jury, however, could conclude that Bush killed

Anderson because Anderson was cutting into his drug sales

at the Ida B. Wells Homes, which Bush viewed as Hobos' ter‐

ritory. Drug trafficking was a key source of revenue for the

Hobos, and controlling drug lines was crucial to maintaining

that income. Ample evidence supported this conclusion. An

explicit order is not required for a finding that the crime "was

expected of [Bush] by reason of his membership in the enter‐

prise or that he committed it in furtherance of that member‐

ship.” Id.

24 Nos. 17‐1650 et al.

Last, Council and Bush argue (as they did for Count 2) that

Anderson's murder was not cold, calculated, and premedi‐

tated. They tactlessly state that "[s]hootings like the Anderson

murder occur in Chicago regularly. They involve personal

vendettas and crowded areas. There is nothing about this

murder that sets it [apart] from such ordinary shootings.”

The jury was not required to adopt such a cynical view.

Moreover, the government produced evidence allowing the

jury to find that Anderson's murder in particular was pre‐

meditated. Bush and Anderson had a long‐standing dispute

over drug territory, and Anderson shot Bush in 2005 as a re‐

sult of this dispute. Anderson was arrested, and Bush told

Todd that he was "stalking” Anderson's prison‐release date

so that he could kill him. He was a man of his word: Bush

seized the opportunity to attack while Anderson was on a

weekend pass from a halfway house. Council, Bush, and Ford

had also talked about shooting Anderson, but Bush passed

over one chance because of the pole cameras in the area. The

jury reasonably concluded that Anderson's murder was the

result of discussion and planning.

D. Counts 4 and 5 – Bluitt's and Neeley's Murders

Derrick argues that there was insufficient evidence to sup‐

port the jury's guilty verdicts on Counts 4 and 5, which

charged him with murdering Bluitt (Count 4) and Neeley

(Count 5) in aid of the racketeering enterprise, in violation of

18 U.S.C. § 1959(a)(1). Council, Bush, and Ford join Derrick in

arguing that the evidence was also insufficient to support the

jury's special findings that theirracketeering activity included

the commission, or aiding and abetting, of Bluitt's and

Neeley's murders.

Nos. 17‐1650 et al. 25

Derrick concedes that he was present at the funeral when

the murders happened, but he denies that he participated in

them. The evidence at trial permitted the jury to find other‐

wise. Cashell Williams, a Fifth Ward BD, testified that he at‐

tended the funeral with Bluitt, Neeley, and others. After they

paid respects, they got into Bluitt's Range Rover, made a

U‐turn, and were idling when he heard Bluitt say "it's on.”

Several cars then drove by, Williams heard gunshots, and

Bluitt and Neeley were fatally hit. Williams did not see the

shooters, but he saw Ford drive by shortly after the shooting.

In Derrick's recorded conversations with cooperator John‐

son, Derrick described the murders. He told Johnson that the

murders were meant to retaliate against the BDs for shooting

Chester. He identified both the guns that he and Stanley car‐

ried and the cars and people involved. He also mentioned that

he tried to shoot at Bluitt and Neeley, but his gun jammed.

Jones testified that with Bush, the Vaughn brothers, Coun‐

cil, Ford, and others, he killed Bluitt and Neeley. Council had

pulled up to the spot where several Hobos were hanging out

and asked them if they had "poles,” meaning guns. He told

them that he knew where Bluitt was, mentioned the bounty

that Chester had placed on Bluitt, and stated that he was

"ready to kill for the money.” They told a Met Boy to get some

guns. Jones gave one to Brown's twin, Brandon, and then got

in the car with Council and Brandon. They met up with Bush,

Ford, Derrick, and others in an alley. Once Bluitt was in his

car, Bush yelled "[g]o, go, go.” Council's car was in front, with

Brandon in the front seat and Jones in the backseat. Bush was

in the second car; Stanley was in the third car; and Ford and

Derrick were in the fourth and final car. Jones testified that he

saw Derrick shooting from Ford's car. Jones received clothes

26 Nos. 17‐1650 et al.

from Council as a reward, and Chester later arranged for

Dillard to give Jones heroin.

In recorded conversations, Ford told Todd about his par‐

ticipation in the murders. He mentioned that he expected a

reward, but Bush got offended because he was "one of the

guys.” Todd also testified. He stated that in response to Ches‐

ter's getting shot, he went with Bush to look for and kill Bluitt.

Chester offered $20,000 for the kill, but the pair's plan did not

work. Todd was out of town when the murders happened,

but he discussed them with Bush. Bush said he and other Ho‐

bos were in four cars and took turns shooting.

Physical evidence corroborated the testimony. A firearms

examiner testified that cartridge casings from the scene were

fired by the same gun that was used to kill Daniels. In addi‐

tion, on the day of the murders, Council changed rental cars

twice, before and after the murders. The car he was driving

during the murders, a red sedan, was consistent with eyewit‐

ness testimony.

Despite all this evidence, Derrick argues that the govern‐

ment relied almost exclusively on the recorded conversations

between Derrick and Johnson, and he contends that in these

conversations he admitted only his presence, not his partici‐

pation in the murder. Derrick emphasizes that his gun did not

work, and so he could not have participated in the murders.

He also asserts that the only other evidence to establish his

guilt came from Jones, but he argues that Jones's testimony

was "so vague, contradictory, and incredible that it could

never be found to support a verdict of guilt beyond a reason‐

able doubt by any rational jury.”

Nos. 17‐1650 et al. 27

The jury, however, was not required to credit Derrick's as‐

sertion that his gun did not work. And even if it did, it could

reasonably find that Derrick participated in the murders,

without shooting, on an accountability theory. Regardless of

whether he fired the gun, Derrick took affirmative steps in

furtherance of the murders by conducting surveillance before

the murders and serving as back‐up. A jury easily could find

that he helped the other Hobos kill Bluitt and Neeley. In ad‐

dition, the jury was entitled to credit Jones's testimony. Once

again, any inconsistencies in that testimony were for the jury

to resolve. See Stevenson, 680 F.3d at 857.

The defendants also contend that the evidence of the Bluitt

and Neeley murders was insufficient to support the jury's

special findings. Some witnesses did not see Council, Bush,

and Ford at the crime scene. Others, who did place them

there, allegedly provided inconsistent testimony. And de‐

fendants again urge that Todd and Jones were unreliable.

Once again, bearing in mind the standard of review, we

find the evidence sufficient to support the findings relating to

Council, Bush, and Ford. Jones detailed his cooperation with

them to conduct the drive‐by shooting. Ford and Derrick im‐

plicated themselves in recorded conversations. Bush orches‐

trated the caravan and yelled "go.” Williams testified that he

saw Ford during the shooting. This is enough, particularly re‐

calling again that the jury was entitled to make credibility de‐

terminations.

Finally, the defendants contend that no jury could find

that the Bluitt and Neeley murders were cold, calculated, and

premeditated. "At best,” they urge, "the evidence provided by

the government showed a haphazard and hurried collection

of people and resources to quickly confront [Bluitt] and

28 Nos. 17‐1650 et al.

[Neeley] out on the street.” They assert that nothing demon‐

strated a detailed and organized plan, thoughtfully consid‐

ered over time, which was executed in cold blood.

If the trial testimony is credited, however, premeditation

is clear. A rational jury could reasonably conclude that the

Hobos had been planning to murder Bluitt because of the

long‐running rivalry between the Hobos and BDs. The BDs

had shot Chester, and Chester had placed a bounty on Bluitt's

head. Bush, Ford, and Todd then devised a plan to kill Bluitt.

On the day of the murders, the defendants learned that the

BDs were attending the funeral, but they did not act immedi‐

ately. Instead, Council recruited participants, they gathered

weapons, and then they met in an alley where they discussed

their plan of attack. Finally, they carried out the plan. This was

more than enough to support the jury's finding that the two

murders were cold, calculated, and premeditated.

E. Shooting of Andre and Darnell Simmons

Bush challenges the jury's special findings that his racket‐

eering activity included the commission, or aiding and abet‐

ting, of the attempted first‐degree murders of Andre Simmons

and Darnell Simmons. Bush argues that the only evidence in‐

troduced against him in this respect was the unreliable testi‐

mony of cooperator Chad Todd.

At trial, Todd testified that on the day of the shootings,

Bush called him and asked to meet at a nearby grocery store.

Once Todd arrived, he saw Bush sitting in the driver's seat of

a white Impala that was parked on a side street next to the

grocery store. Ford was in the front passenger seat, and Coun‐

cil was in the rear passenger seat. Todd got into the car behind

Bush. The group sat and waited, watching a black Nissan

Nos. 17‐1650 et al. 29

Maxima that was parked in the grocery store parking lot.

When the Maxima pulled out, they followed it. Todd testified

that, at this point, Ford and Bush somehow switched seats,

Ford now driving and Bush in the front passenger seat.

After trailing the Maxima for a short time, Todd testified

that Bush pulled the sunglasses compartment down, reached

in, and pulled out a FN 5.7 firearm. Bush then instructed Ford

to lean back, Ford did so (Todd reported to the point of crush‐

ing Todd's legs), and Bush fired past Ford's face. Todd said

that he saw bullet holes going through the front passenger

window and heard glass shattering. Then he heard sirens and

saw an unmarked squad car behind them. They briefly eluded

the unmarked squad car, but afterthey got out of their car and

ran, Todd and Council were both apprehended and taken into

custody.

Bush asks us to find that Todd's testimony is incredible.

He emphasizes that Todd did not describe how Ford and

Bush switched seats, or how it would even be possible given

the sizes of Bush and Ford and the center console in the vehi‐

cle. Bush emphasizes that Todd's testimony throughout the

trial was riddled with inconsistencies. Todd admitted to lying

on earlier occasions to law enforcement. Furthermore, setting

aside the sufficiency of the proof that he committed the at‐

tempted murders, Bush argues that the government failed to

present sufficient evidence showing that his purpose was to

maintain or increase his position within the enterprise or that

the attempted murders were part of his racketeering activity.

The government counters that Todd's testimony was well‐

corroborated. Todd testified that a friend of Bush's girlfriend

rented the Impala. That friend testified at trial and confirmed

that she rented the car for Bush. After the shooting, Bush's

30 Nos. 17‐1650 et al.

girlfriend told the friend that the car had been stolen, but dur‐

ing a later search of the car, police found documents in Bush's

name, as well as Council's and Bush's fingerprints. In addi‐

tion, the police recovered cartridge casings from the scene.

The casings matched the type of gun Todd described in his

testimony and also matched the gun that was used in the

Jones and Robinson shootings. The officer who arrested

Council afterthe car chase corroborated this portion of Todd's

testimony. The Simmonses also both corroborated Todd's ac‐

count of the shooting at trial. The Simmonses testified that

they were in Andre's Nissan in a turn line when they heard

multiple gun shots and that Andre ducked down and contin‐

ued driving, ultimately crashing into a CTA bus stop. Moreo‐

ver, in secretly recorded conversations between Todd and

Ford, Ford discussed the shooting and said that he gave away

a leather jacket to a person who helped him flee after they

crashed the car. The government finally argues that the jury

reasonably found that the murder was part of the racketeering

conspiracy because Andre Simmons was Bluitt's friend, and

the Hobos were determined to retaliate against New Town

BDs.

The evidence relating to the Simmonses' shooting is not

the strongest we have ever seen. Nevertheless, the jury was

entitled to credit Todd's account, as corroborated by the evi‐

dence cited by the government. In any event, the shooting was

only one of many predicate acts on Count 1 for which the jury

found Bush responsible; it was not the subject of a substantive

act. Any error would therefore be harmless.

F. Count 6 – Obstruction of Justice

On Count 6, Poe was convicted of obstruction of justice in

violation of the "catchall” clause in 18 U.S.C. § 1503, which

Nos. 17‐1650 et al. 31

provides that a crime occurs when a person "corruptly ... in‐

fluences, obstructs, or impedes, or endeavors to influence, ob‐

struct, or impede, the due administration of justice....” After

he was convicted, Poe moved for acquittal. The district court

found that ample evidence supported Poe's guilt, and so it

denied his motion.

We already have noted that Council's brother, Keith Dan‐

iels, cooperated with law enforcement to make controlled

buys of heroin from Chester and Dillard. Recall, too, that after

Daniels was relocated for his safety, he testified before the fed‐

eral grand jury on April 4, 2013. On April 10, Chester was ar‐

rested on a criminal complaint charging him with distributing

heroin. The supporting affidavit provided to Chester did not

name Daniels, but it summarized the controlled transactions

and gave specific details about the buys. Chester told arrest‐

ing agents that he "knew who the informant was” and "all

[he] ever did was take [him] under my arm.” Another Hobo,

Walter Binion, was at the scene when Chester was arrested.

He left separately and later "got the paperwork” for Chester's

case. That night, Poe cut off his electronic monitoring bracelet.

Two days later, on April 12, Chester spoke to a woman on

the phone while he was detained at Kankakee County Jail.

The conversation was recorded. Chester told the woman that

"[a] motherfucker wore a wire on me in 2011. He was working

with the Feds.” The following day, Chester spoke to Poe in

coded language. They referenced catching someone who

would end up dead. Chester told Poe, "They coming with

some other shit and god damn it, probably real soon.”

On April 14, Daniels was in the passenger seat of a car

driven by his girlfriend, Shanice Peatry. Their children were

in the back seat. Peatry testified that after she parked the car

32 Nos. 17‐1650 et al.

in front of their apartment, Poe walked toward them. He be‐

gan shooting at the driver's seat, but then he turned his aim

to Daniels in the passenger seat as he got closer. To try to pro‐

tect his family from the gunfire, Daniels jumped out of the car.

He was knocked over by bullets. Poe walked even closer,

stood over Daniels, and then fired additional bullets at him.

Peatry testified that Poe's face was covered by something

black, but she was able to recognize his eyes, dreadlocks, and

his distinctive gait.

After Poe left, Peatry called 911. She knew Poe from pre‐

vious interactions and identified him repeatedly: in the 911

call, a post‐incident photo array, and at trial. She also told the

911 operator that Poe's getaway car was a gold Trailblazer.

Some evidence indicated that a second person was driving the

car and may also have fired at Daniels.

Surveillance footage corroborated Peatry's testimony. It

showed a tan SUV driving in the area of Daniels's apartment

at 7:27 and at 7:43 in the evening. Peatry called 911 at 7:44 p.m.

A neighbor testified that she heard gunshots and then saw a

tan SUV driving away from the scene. At 8:19 p.m., Chester

spoke to a woman on the phone, asking if she heard from Poe.

She said that she had not, and Chester told her, "He didn't

even have to do that.” Chester said that it "was crazy” but he

"understand[s] too” because it was"[b]etter [to] be safe than

sorry.” An hour later, Chester spoke to an unidentified man.

The man told Chester, that they "got it under control. That's

all you need to know.” The man also referenced Poe pulling

up in a "lil' Trailblazer truck.” Chester said, "Played me like

a straight bitch,” and the man replied, "you know what you

got to resort to.” After the murder Poe left Chicago, switching

Nos. 17‐1650 et al. 33

hotels frequently. He also cut his dreadlocks. The FBI arrested

him on May 2, 2013.

In addition, the government produced evidence from

other sources. FBI Special Agent Bryant Hill testified that, con‐

sistent with Peatry's 911 call, he had seen Poe walk with a

limp on several occasions. Zentmyer, Poe's cellmate and a jail‐

house lawyer, testified that Poe admitted that he killed Dan‐

iels because Daniels was going to testify against Chester in a

heroin case. Poe said he cut off his electronic monitoring band,

went to Dolton, and shot Daniels in front of his kids and girl‐

friend. Last, the day after the murder Council spoke to his

(and Daniels's) mother on the phone. Council's mother told

him that Daniels had been killed and Councilreplied, "[W]hat

that boy doin'... he can't do that in the street ...I ain't shed a

tear.”

To sustain a conviction under section 1503's catchall pro‐

vision, "the government must prove: (1) a judicial proceeding

was pending; (2) the defendant knew of the proceeding; and

(3) the defendant corruptly intended to impede the admin‐

istration of that proceeding.” Torzala v. United States, 545 F.3d

517, 522–23 (7th Cir. 2008). A grand jury investigation can con‐

stitute a pending judicial proceeding. United States v. Aguilar,

515 U.S. 593, 599 (1995).

Poe argues that there was insufficient evidence that he

murdered Daniels. He emphasizes that there was no physical

evidence linking him to the murder—no DNA, fingerprints,

or trace evidence. Poe also asserts that he did not confess any

crimes to Zentmyer. Instead, Zentmyer came up with his

story by researching the charges against Poe using publicly

available case documents, newspapers, television programs,

and Poe's discovery materials. In fact, Poe argues, Zentmyer

34 Nos. 17‐1650 et al.

claimed that Poe bragged about personally shooting and kill‐

ing a man in a Range Rover in front of a funeral home. This

was a reference to the Bluitt/Neeley murders, but it is undis‐

puted that Poe was in custody when they occurred.

Realizing that Peatry's testimony stands in his way, Poe

attempts to discount her account. Poe contends that Peatry

was in a romantic relationship with Arsenio Fitzpatrick and,

in the ten days leading up to Daniels's death, she had con‐

tacted Fitzpatrick more than 1,000 times by call and text.

Shortly after Daniels was killed, she deleted all her text and

call records from her phone. Peatry's affair and the timing of

those deletions, Poe contends, was suspicious. Poe also high‐

lights the fact that Peatry did not initially tell law enforcement

that the shooter was wearing a mask, making them think she

could clearly identify the shooter. Moreover, at trial, she tes‐

tified for the first time that she identified Poe as the shooter

based primarily on his gait. She never mentioned this to the

police or the grand jury.

Poe tried to point the finger at other possible perpetrators:

Ricky Royal and Lamar Murphy. He notes that Royal and

Murphy had greater reason to fear Daniels's cooperation than

he did. Daniels had never committed any crimes with Poe, but

he had committed a home invasion, robbery, and kidnapping

with Murphy and Royal. Additionally, Peatry had seen Dan‐

iels meet with Murphy and Royal while Daniels was cooper‐

ating. Peatry testified that on the day he was killed, Daniels

received a text message from his cousin warning him that two

people from "out west” were planning to kill him. Royal and

Murphy were from the west side; Poe was not. Poe also argues

that in the recorded calls between Chester and the unknown

Nos. 17‐1650 et al. 35

male, the unknown male was Murphy, indicating his connec‐

tion to the murder.

Once again, the choice between Poe's version of these

events and the government's was for the jury. Its conclusion

that Poe killed Daniels was adequately supported by the trial

evidence. It was the jury's prerogative to credit both Peatry's

and Zentmyer's testimony. Peatry identified Poe in her 911

call and testified that she recognized Poe's eyes, dreadlocks,

and gait. Zentmyer added details of the murder that were not

in the complaint or the news, such as that Daniels was mur‐

dered in Dolton, that Daniels was Council's brother, and that

Daniels's girlfriend and children saw the murder. As for the

other possible perpetrators, in the recorded jail calls, Chester

spoke to a woman, asking for Poe and telling her that "he”

"didn't even have to do that,” seemingly referring to Poe. In

addition, the jury may reasonably have questioned why Poe

cut off his electronic monitoring bracelet, fled Chicago, cut his

distinctive dreadlocks, and moved from hotel to hotel. Juries

are "permitted to consider flight as evidence of consciousness

of guilt and thus of guilt itself.” United States v. Starks, 309 F.3d

1017, 1025 (7th Cir. 2002).

Poe follows up with an attack on the sufficiency of the ev‐

idence to show that, in killing Daniels, he intended to obstruct

a pending judicial proceeding. This is a more difficult ques‐

tion.

Three judicial proceedings bear on Count 6: the grand

jury's investigation into Chester and Dillard; the drug charges

that were brought against Chester and Dillard; and the grand

jury's RICO investigation. The government argues that there

was sufficient evidence that Poe was aware of both Chester's

case and the ongoing grand jury investigation.

36 Nos. 17‐1650 et al.

As evidence that Poe knew about the grand jury's RICO

investigation, the government points to the conversation be‐

tween Chester and Poe in which they talked about "some

other shit” coming "real soon.” It argues that the jury in the

present case could conclude that this statement was a coded

reference to the grand jury's proceedings. The government

also notes that when Zentmyer was helping Poe with his legal

issues, Zentmyer wrote a note asking, "Was confidential

source working for state or state prosecution?” Poe crossed

out "state” and wrote "federal” and "joined [sic] task, state

and federal.”

In addition, the government argues, Poe was aware of the

more immediate federal drug charges against Chester. Fellow

Hobo Binion was present when the FBI arrested Chester, and

then there was a lengthy discussion about Daniels and Ches‐

ter's arrest among the Hobos. Poe absconded the night of

Chester's arrest, even though his parole was about to expire,

indicating that he learned about the arrest from Binion or an‐

other Hobo. And Poe spoke to Chester while he was in cus‐

tody, confirming that Poe knew Chester had been arrested.

Binion went to federal court after the arrest to get copies of

the "paperwork” in Chester's case.

In response to all this, Poe admits that he knew that Ches‐

ter was in jail, but he says that he was unaware of the charges

against Chester, let alone that they were federal. With respect

to the grand jury investigation, Poe asserts that, at most, he

was informed that charges were coming, but that he was un‐

aware of any ongoing federal grand jury investigation.

We agree with Poe that the evidence supporting a finding

that he knew about the grand jury's RICO investigation was

Nos. 17‐1650 et al. 37

weak. Although Poe may have known the FBI was investigat‐

ing the Hobos as an enterprise, "it is not enough that there be

an intent to influence some ancillary proceeding, such as an

investigation independent of the court's or grand jury's au‐

thority.” Aguilar, 515 U.S. at 599. It is speculative at best that

Poe knew that the investigation had reached the level of a

grand jury.

Nevertheless, there was sufficient evidence to allow a ra‐

tional jury to find that Poe knew about the pending federal

drug charges against Chester. Poe spoke to Chester while he

was in custody, and so he knew Chester had been arrested.

Chester was aware that Daniels had been working with fed‐

eral agents. In a recorded call before Daniels's murder, he said

"A motherfucker wore a wire on me in 2011. He was working

with the Feds.” A jury could infer other Hobos also knew

Daniels was working with federal agents and knew there

would be federal charges against Chester. In addition, Zent‐

myer testified that Poe admitted to killing Daniels because he

was going to testify against Chester. When asked why Poe

committed the murder, Zentmyer stated: "He said that this

guy [Daniels] had made heroin buys off of Bowlegs [Chester].

And that's what Bowlegs was in custody for, and this was the

main guy to testify against Bowlegs.” This is enough to sup‐

port the district court's decision to deny Poe's motion for ac‐

quittal on Count 6.

G. Count 7 – Robbery of Collections store

Count 7 charged Council with aiding and abetting the use,

carrying, or brandishing of a firearm during the robbery of the

Collections store, in violation of 18 U.S.C. § 924(c). "[T]o con‐

vict a defendant of a § 924(c) violation as an accomplice, the

government must prove that he had advance knowledge of

38 Nos. 17‐1650 et al.

his collaborator's plan to use or carry a gun during the com‐

mission of the crime.” Farmer v. United States, 867 F.3d 837, 841

(7th Cir. 2017). Council concedes that he was present during

the robbery, but he contends that the government failed to

show that he had advance knowledge that his accomplices

would use firearms.

This time, we have no trouble finding ample evidence to

support the conviction. At trial, Bland testified that he, Ah‐

mad Hicks, and Pierre Skipper were sitting in a vehicle with

firearms on theirlaps, when Council approached them. Coun‐

cil suggested that they rob Collections, and, after they agreed,

Council passed out masks and laundry bags. The four of them

entered the store together. According to Bland, during the

robbery, Hicks had his firearm "upped,” meaning it was visi‐

ble in his hand. Once inside the store, Council and Skipper

gathered expensive jackets and other clothes while Hicks and

Bland moved the store's employees to a backroom at gun‐

point. Store employees testified that as they were moved, they

saw a gun in one robber's sleeve and another robber carrying

one in his hand.

Council argues that Bland's testimony does not suffice. He

emphasizes that Bland testified at trial in order to reduce his

sentence and that inconsistencies plagued his testimony.

Originally, Bland told law enforcement that he did not know

anything about the guns used during the robbery. Then he

testified that they were not his guns. Then he testified that the

guns belonged to Hicks and Skipper, only later to testify that

the guns belonged to Hicks, but that Hicks gave him one gun

that he held for a minute and then returned.

Nos. 17‐1650 et al. 39

In addition to these problems, Council highlights the in‐

consistencies between Bland's testimony at trial and his testi‐

mony before the federal grand jury. Bland told the grand jury

that just before the robbery, when Council approached the

car, he asked the group if they had weapons on them and they

said yes. At trial, however, Bland testified that the guns were

already sitting on their laps when Council approached.

These are minor or easily explained discrepancies. Re‐

gardless of whether Council asked his coconspirators about

guns or merely saw guns on their laps, the evidence showed

that he had advance knowledge of the guns. And although

Bland's statements about who owned the guns were incon‐

sistent, Council's advance knowledge did not depend on who

owned the weapons. More importantly, Bland's testimony

about other details, such as the make and model of the guns,

was consistent. It was the jury's job to unravel whatever dis‐

crepancies or credibility issues Bland presented.

It appears likely that the jury credited Bland's testimony

because it was corroborated by the video captured by Collec‐

tions' security cameras. The footage shows the robbers enter‐

ing the store and Bland and Hicks carrying guns. The employ‐

ees were herded to the back of the store while Council was

gathering jackets and other clothing items. As the district

court noted, "[n]o physical force was used to compel the em‐

ployees ... which is consistent with testimony that guns were

used to gain their swift compliance. With such an orderly pro‐

cess, the jury could reasonably infer from the videotape that

using guns was part of the plan from the start.”

The evidence was therefore sufficient for the jury's guilty

verdict on Count 7. Based on the same evidence, we also reject

Council's related argument that the evidence failed to support

40 Nos. 17‐1650 et al.

the jury's special finding that in the course of the robbery he

aided and abetted the "brandishing” of a firearm (as opposed

to using or carrying one).

We also briefly address, though it is not a sufficiency

argument, Council's other challenge to Count 7. The predicate

offense for this section 924(c) charge was robbery affecting

commerce in violation of 18 U.S.C. § 1951(a) (Hobbs Act

robbery). "Robbery” under the Hobbs Act is defined as "the

unlawful taking or obtaining of personal property from the

person or in the presence of another, against his will, by

means of actual or threatened force, or violence, or fear of

injury, immediate or future, to his person or property, or

property in his custody or possession, or the person or

property of a relative or member of his family or of anyone in

his company at the time of the taking or obtaining.” 18 U.S.C.

§ 1951(b).

Council contends that Hobbs Act robbery is not a crime of

violence under 18 U.S.C. § 924(c)(3)(A) because it is possible

to commit this type of robbery without the use or threatened

use of force. We have squarely rejected this argument. United

States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017) ("Because one

cannot commit Hobbs Act robbery without using or

threatening physical force, ... Hobbs Act robbery qualifies as

a predicate for a crime‐of‐violence conviction.”).

Alternatively, Council contends that even if Hobbs Act

robbery is a crime of violence, an inchoate offense such as

aiding and abetting does not qualify as a crime of violence.

Again, the rule is otherwise for inchoate offenses. See Hill v.

United States, 877 F.3d 717, 719 (7th Cir. 2017) (attempted

crimes); United States v. García‐Ortiz, 904 F.3d 102, 109 (1st Cir.

2018) (aiding and abetting); United States v. Grissom, 760 F.

Nos. 17‐1650 et al. 41

App'x 448, 454 (7th Cir. 2019). We thus reject both of these

legal challenges to Council's conviction on Count 7.

H. Count 9 – Possession with Intent to Distribute

This time we address one of Ford's convictions: one for

possession of marijuana with the intent to distribute it, in vi‐

olation of 21 U.S.C. § 841(a)(1). In February 2013, during a

lawful search of Ford's residence, CPD officers found approx‐

imately 50 plastic baggies of user quantities of marijuana, to‐

taling 10.6 grams. The baggies were divided among five larger

bags, which were, in turn, put into one bag. Two witnesses,

an FBI agent (testifying as an expert) and a CPD officer, testi‐

fied that the marijuana was packaged for distribution.

There are three elements required for a conviction under

21 U.S.C. § 841(a)(1): (1) knowing or intentional possession of

a substance with (2) the intent to distribute it, and (3)

knowledge that the material is a controlled substance—here,

marijuana. United States v. Campbell, 534 F.3d 599, 605 (7th Cir.

2008). Ford does not dispute that the baggies of marijuana

were his, or that he knew they contained marijuana. He con‐

tends only that the evidence of intent to distribute fell short.

He emphasizes that the government never detailed whether

the 50 baggies contained different quantities of marijuana and

whether some were empty. Nor did the government present

any evidence of scales, wrappers, or money, items typically

surrounding drug dealing.

This evidence permitted the jury to conclude that Ford in‐

tended to distribute the marijuana. United States v. Bernitt, 392

F.3d 873, 879 (7th Cir. 2004) ("[T]he quantity and packaging

of drugs ... can be sufficient to support the inference of an in‐

42 Nos. 17‐1650 et al.

tent to distribute.”). The FBI agent's expert testimony con‐

firmed that the marijuana was packaged for distribution. And

Ford's own statements reinforce the conclusion that he in‐

tended to distribute the marijuana. In a recorded conversation

between Ford and Todd, Ford stated that although he did not

"smoke weed” himself, he was going to get a pound of "kush”

(marijuana) to sell once he was released from prison. No more

was necessary.

We also briefly comment on Ford's contention that he

should not have been tried at all in the case as a whole, be‐

cause he was not named in the Second Superseding Indict‐

ment. Ford was charged in four counts of the Superseding In‐

dictment: Count 1 (racketeering conspiracy), Count 8 (felon in

possession of a firearm), Count 9 (possession with intent to

distribute marijuana), and Count 10 (possession of a firearm

in connection with the marijuana offense). In the same indict‐

ment, Ford's co‐defendant, Poe, was charged in Count 6 for

obstruction of justice.

About one week before trial, Poe moved to dismiss Count

6, on the ground that it failed to allege the obstruction of a

specific pending judicial proceeding. The grand jury speedily

returned a Second Superseding Indictment against only Poe.

The Second Superseding Indictment cured the deficiency Poe

had mentioned by alleging the specific judicial proceedings

that were obstructed.

During jury selection, Ford's counsel requested clarifica‐

tion of "[w]hat indictment” was the subject of trial. The dis‐

trict court answered that the trial was proceeding on the Su‐

perseding Indictment, with the exception of Count 6, as to

which Second Superseding Indictment replaced the earlier

version of Count 6 with a new Count 6. A week into trial, Ford

Nos. 17‐1650 et al. 43

asked the district court to dismiss him from the case. He ar‐

gued that the Second Superseding Indictment nullified the

Superseding Indictment and, because he was not named in

the Second Superseding Indictment, there were no longer

charges pending against him. He argued that the government

was required to select only one indictment on which to pro‐

ceed to trial. The district court denied the motion, rejecting

"the premise that a superseding indictment wholly replaces

previous ones.” Ford now echoes this argument before us.

We are not persuaded. First, Ford's motion came too late,

as it is among those that Federal Rule of Criminal Procedure

12(b)(3)(B) requires to be raised before trial. Second, it is not

the case that "a superseding indictment zaps an earlier indict‐

ment to the end that the earlier indictment somehow vanishes

into thin air.” United States v. Bowen, 946 F.2d 734, 736 (10th

Cir. 1991). "An original indictment remains pending prior to

trial, even after the filing of a superseding indictment, unless

the original indictment is formally dismissed.” United States

v. Yielding, 657 F.3d 688, 703 (8th Cir. 2011). Here, the govern‐

ment did not move to dismiss the Superseding Indictment,

and it was entitled to proceed to trial against Ford on it. This

objection is meritless.

III

We now turn to the defendants' challenges to the court's

rulings on the admission of evidence.

A. Forfeiture by Wrongdoing

Bush, Chester, Council, Ford, and Derrick contend that the

admission of Keith Daniels's out‐of‐court statements pursu‐

ant to the forfeiture‐by‐wrongdoing doctrine violated their

Sixth Amendment Confrontation Clause rights. Poe joins this

44 Nos. 17‐1650 et al.

argument only to the extent that he asserts that the district

court erred in requiring the government to prove the elements

of forfeiture by wrongdoing only by a preponderance of the

evidence. The government argues that Daniels's statements

were properly introduced, and even if they were not, any er‐

ror was harmless. "Where the defendant's Sixth Amendment

right to confront witnesses is directly implicated, our review

is de novo.” United States v. Ochoa, 229 F.3d 631, 637 (7th Cir.

2000).

The Sixth Amendment's Confrontation Clause provides

that "[i]n all criminal prosecutions, the accused shall enjoy the

right ... to be confronted with the witnesses against him.” U.S.

CONST. amend. VI. In 2004, the Supreme Court held that the

right to confrontation prohibits "admission of testimonial

statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant ... had a prior

opportunity for cross‐examination.” Crawford v. Washington,

541 U.S. 36, 53–54 (2004). Yet Crawford permits courts to admit

testimonial statements "where an exception to the confronta‐

tion right was recognized at the time of the founding.” Giles

v. California, 554 U.S. 353, 357 (2008).

One such exception is common‐law forfeiture by wrong‐

doing. Codified in Federal Rule of Evidence 804(b)(6), the for‐

feiture‐by‐wrongdoing doctrine allows testimonial state‐

ments to be admitted, even if unconfronted, when the defend‐

ant's own conduct caused the declarant to be unavailable at

trial. Rule 804(b)(6) describes this as "[a] statement offered

against a party that wrongfully caused—or acquiesced in

wrongfully causing—the declarant's unavailability as a wit‐

ness, and did so intending that result.” Giles requires the gov‐

Nos. 17‐1650 et al. 45

ernment to prove that the defendant's actions were under‐

taken for the purpose of preventing the witness from testify‐

ing. 554 U.S. at 367−68.

At trial, the government sought to admit Daniels's out‐of‐

court statements—his grand jury testimony—against all the

defendants, not just against Poe (the person who directly

caused Daniels's unavailability by murdering him). It argued

that it could do so under the theory of liability recognized in

Pinkerton v. United States, 328 U.S. 640 (1946). Pinkerton pro‐

vides that a person is liable for an offense committed by a co‐

conspirator when its commission is reasonably foreseeable to

that person and is in furtherance of the conspiracy. Id. at 647.

According to the government, "[i]t would make little sense to

limit forfeiture of a defendant's trial rights to a narrower set

of facts than would be sufficient to sustain a conviction and

corresponding loss of liberty.” United States v. Cherry, 217 F.3d

811, 818 (10th Cir. 2000).

The district court agreed with the government, relying on

United States v. Thompson, 286 F.3d 950 (7th Cir. 2002). In

Thompson, we stated that under Federal Rule of Evidence

804(b)(6), a defendant who "acquiesces in conduct intended

to procure the unavailability of a witness” waives his hearsay

objection. Id. at 964. We noted that by using the term "acqui‐

esce,” the drafters of Rule 804(b)(6) expressed an intent to al‐

low for the imputation of waiver. Id. Therefore, "if a murder

is reasonably foreseeable to a conspirator and within the

scope and in furtherance of the conspiracy, the conspirator

waives his right to confront that witness just as if he killed the

witness himself.” Id. at 963. "Without a rule of coconspirator

waiver, the majority of the members of a conspiracy could

benefit from a few members engaging in misconduct. Such a

46 Nos. 17‐1650 et al.

result is at odds with the waiver‐by‐misconduct doctrine's eq‐

uitable underpinnings.” Id. at 964.

The defendants, however, argue that the decisions in

Crawford and Giles have undermined Thompson's approach,

and that their holdings rule out the use of Pinkerton to impute

waiver of a defendant's Sixth Amendment right to confronta‐

tion under the forfeiture‐by‐wrongdoing concept. They note,

accurately, that courts did not recognize Pinkerton liability at

common law; from that, they conclude that any exception to

the confrontation right based on Pinkerton was not recognized

at the founding. The defendants also contend that Pinkerton is

inconsistent with Giles's requirement that forfeiture of con‐

frontation rights occurs only if the defendant acts with the spe‐

cific purpose of precluding the witness's testimony.

Several of our sister circuits have found, post‐Crawford,

that Pinkerton liability allows the admission of testimonial

statements under a forfeiture‐by‐wrongdoing theory. They

permit the inference of waiver for coconspirators who reason‐

ably could foresee that a fellow conspirator would engage in

premeditated murder in furtherance and within the scope of

the conspiracy. See United States v. Cazares, 788 F.3d 956, 975

(9th Cir. 2015) ("The district court should have articulated

that the ... murder was within the scope of and in furtherance

of the conspiracy, and that the murder was reasonably fore‐

seeable to the defendants other than Martinez and Avila so

that the forfeiture by wrongdoing doctrine applied to all who

had 'acquiesced in wrongfully causing—the declarant's una‐

vailability.'”); United States v. Dinkins, 691 F.3d 358, 386 (4th

Cir. 2012) ("We conclude that the district court properly ad‐

mitted the ... hearsay statements against [the defendant who

Nos. 17‐1650 et al. 47

did not commit the murder] under the forfeiture‐by‐wrong‐

doing exception to the Confrontation Clause pursuant to

Pinkerton principles of conspiratorial liability.”); United States

v. Carson, 455 F.3d 336, 364 (D.C. Cir. 2006) ("[T]he reasons

why a defendant forfeits his confrontation rights apply with

equal force to a defendant whose coconspirators render the

witness unavailable, so long as their misconduct was within

the scope of the conspiracy and reasonably foreseeable to the

defendant, as it was here.”). But these cases do not analyze

whether Pinkerton liability was recognized at common law,

and so we are reluctant to jump onto that bandwagon.

Pinkerton itself was not decided until 1946, and it was con‐

troversial from the outset. One scholar had this to say about

it:

In the years following Pinkerton, the decision was al‐

most universally condemned by the academic commu‐

nity. And, although no statistics exist, Pinkerton liabil‐

ity appears to have been rarely utilized until the 1970's.

Indeed, in 1962 the drafters of the Modal Penal Code

rejected Pinkerton liability and by 1972, LaFave and

Scott's influential Handbook on Criminal Law declared

that the Pinkerton rule had never gained broad ac‐

ceptance.

Alex Kreit, Vicarious Criminal Liability and the Constitutional Di‐

mensions of Pinkerton, 57 AM. U. L. REV. 585, 597−98 (2008)

(quotation marks and citations omitted). Rule 804(b)(6) was

codified in 1997, long afterthe ratification of the Sixth Amend‐

ment in 1791. In the 18th century, criminal liability was gen‐

erally limited to those who acted as principals or those who

aided and abetted. Under a strict reading of Crawford and

Giles, it seems that Thompson may no longer be good law.

48 Nos. 17‐1650 et al.

This is an important question, but it is one that we can save

for another day. Our problem is a simple one: was one con‐

spirator acting as the agent for the others, while acting within

the scope of the conspiracy? If yes, then ordinary agency prin‐

ciples suggest that the act can be attributed to all of them.

Moreover, we are confident that any error in admitting Dan‐

iels's out‐of‐court statements was harmless. "[C]onstitutional

error that is harmless will not cause an otherwise valid con‐

viction to be set aside. ... The test is whether the reviewing

court can determine beyond a reasonable doubt that the error

did not contribute to the verdict.” Ochoa, 229 F.3d at 639–40

(internal citation omitted).

The statements at issue came from Daniels's grand jury

testimony. The defendants objected to the admissibility of cer‐

tain passages on various grounds, such as a failure to indicate

the basis of Daniels's personal knowledge. The district court

conducted a line‐by‐line review, excised substantial portions

of the testimony, and admitted the remainder.

The jury heard that Daniels testified before the grand jury

on April 4, 2013, and offered the following information. Coun‐

cil is his older brother. Daniels was familiar with the Hobos

through Council and others. Chester was the leader of the Ho‐

bos, and Council, Poe, Bush, and Ford were members. The

Hobos had a hand sign, and "Hobo” was stitched on some

members' cars' headrests. Council sold drugs in the Robert

Taylor Homes, and Bush and Stanley also sold drugs.

Daniels also mentioned robberies and rivalries. He stated

that the Hobos committed robberies together. Daniels himself

participated in one that Chester had arranged. Afterwards,

Chester took some of the proceeds. On another occasion,

Chester told Daniels he was planning a robbery. Daniels also

Nos. 17‐1650 et al. 49

saw Chester with $100,000 cash. As for gang rivalries, Daniels

identified the Hobos' conflict with the Met Boys, which

started when Jones stole marijuana and was shot. The Hobos

also had a feud with the Mickey Cobras.

Daniels also testified that he accompanied Chester when

he bought a loaded firearm for Poe, and Chester told him that

Chester was trying to get as many guns as possible. Poe told

Daniels he planned to kill a BD, and Ford told Daniels he and

Brandon Brown were part of the group that shot up the fu‐

neral home. Daniels discussed his drug transactions with

Chester and Dillard.

Overall, whatremained afterthe district court's redactions

was information that was largely duplicated by other wit‐

nesses. Daniels's grand jury statements provided general in‐

formation about the Hobos and their criminal activity. There

is no meaningful chance that they contributed to the jury's

verdict. Our finding that any error that may have occurred in

their admission was harmless makes it unnecessary for us to

address some related arguments, namely, whether the court

erred in applying a preponderance of the evidence standard

to the elements of forfeiture by wrongdoing, or whether there

was insufficient evidence to establish that Chester partici‐

pated in or conspired to murder Daniels in order to prevent

his testimony at trial.

B. Guilty Pleas

Bush, Chester, Council, Ford, Poe, and Derrick argue that

the district court should not have admitted their guilty pleas

to underlying racketeering activity (such as murders, rob‐

beries, and narcotics activity) that was part of the enterprise

and for which defendants were prosecuted in state court. In

50 Nos. 17‐1650 et al.

allowing the evidence, the court relied on the dual‐sovereign

doctrine, which permits the federal government to prosecute

a defendant under a federal statute even if a state has prose‐

cuted him for the same conduct under state law. The defend‐

ants ask us to overrule the dual‐sovereign doctrine, arguing

that it violates the Double Jeopardy Clause of the Fifth

Amendment.

Their effort to preserve this issue for possible Supreme

Court review made sense at the time, but events have out‐

stripped them. After the defendants filed their briefs, the Su‐

preme Court addressed dual sovereignty and held that the

doctrine is consistent with the text of the Fifth Amendment,

its history, and "a chain of precedent linking dozens of cases

over 170 years.” Gamble v. United States, 139 S. Ct. 1960,

1962−69 (2019). The district court acted properly in admitting

the guilty pleas.

C. Toolmark Analysis

Bush, Chester, Council, Ford, Poe, and Derrick argue that

the district court improperly admitted expert testimony on

toolmark analysis, allowing them to argue that "these seem‐

ingly unrelated crimes were committed by the same group of

people.” At trial, the government called four firearms experts:

Illinois State Police firearms examiners Marc Pomerance, Kurt

Murray, and Aimee Stevens, and a scientist with the FBI's

Firearms‐Toolmarks Unit, Rodney Jiggets. Notably, the de‐

fendants do not challenge the qualifications of any of these

four experts. Rather, the defendants challenge only the relia‐

bility of toolmark analysis as a discipline for expert testimony.

Pomerance testified that toolmark analysis, a discipline

within the forensic sciences, is used to determine whether a

Nos. 17‐1650 et al. 51

bullet or casing was fired from a particular firearm. It can also

be used to determine whether two bullets or casings were

fired from the same firearm. An examiner can make these de‐

terminations by looking through a microscope to see mark‐

ings that are imprinted on the bullet or casing by the firearm

during the firing process. Firing pins impart marks, and

scratches are made as the bullet travels down the barrel.

These markings are either(1) "class characteristics,” which

are features that a group shares, (2) "sub‐class characteris‐

tics,” which are shared by a subset of items, or (3) "individual

characteristics,” which are microscopic imperfections on the

surface of the object that are unique to a particular firearm.

Firearms examiners can conclude that two items, such as cas‐

ings, were fired from the same firearm when the class and in‐

dividual characteristics of two items, such as casings, match.

Pomerance examined 9mm cartridge casings that were re‐

covered from the area where Cordale Hampton and his uncle

were shot. He compared them to 9mm cartridge casings from

an October 2005 shooting. The individual characteristics were

the same on both, and so he determined that they were fired

by the same firearm. Pomerance also compared a 5.7 x 28mm

cartridge casing from the Eddie Jones shooting to a 5.7 x

28mm cartridge casing from the Simmons shooting. The

markings matched.

Murray found a match between 5.7 x 28mm casings from

the Jonte Robinson shooting and comparable casings from the

Simmons shooting. Murray also found that a FN firearm

seized from Bush's storage locker fired the cartridge casings

from the Eddie Jones shooting. Stevens found a match be‐

tween .40 caliber cartridge casing from the Wilber Moore

murder and the same type from the October 2005 shooting.

52 Nos. 17‐1650 et al.

Jiggets testified that the .45 caliber cartridge casings recovered

from the Bluitt/Neeley murder scene matched casings found

at the Daniels murder scene. In response, the defense called a

forensic metallurgist, William Tobin, who testified that tool‐

mark identification lacks scientific foundation.

The defendants argue that the district court erred in deny‐

ing their motions to exclude this toolmark evidence on relia‐

bility grounds. Federal Rule of Evidence 702 governs the ad‐

missibility of expert testimony. Under Rule 702, if "scientific,

technical, or other specialized knowledge will help the trier of

fact,” then "a witness who is qualified as an expert by

knowledge, skill, experience, training, or education may tes‐

tify in the form of an opinion ... .”

A district court "holds broad discretion in its gatekeeper

function of determining the relevance and reliability of the ex‐

pert opinion testimony.” Krik v. Exxon Mobil Corp., 870 F.3d

669, 674 (7th Cir. 2017). We use a two‐step standard of review

where a defendant challenges a district court's admission of

expert testimony. United States v. Johnson, 916 F.3d 579, 586

(7th Cir. 2019). First, we consider de novo whether the district

court properly applied the Rule's framework. If so, we review

the ultimate decision to admit or exclude the evidence only

for abuse of discretion, understanding that the district court

abuses its discretion only when no reasonable person could

take the court's view. Id. at 586−87.

Although it is hard to show abuse of discretion, the de‐

fendants urge that it occurred in this instance when the dis‐

trict court found that the toolmark analysis is sufficiently reli‐

able. They assert that the "premise underlying the field of fire‐

arms analysis—that no two firearms will produce the same

microscopic features on bullets and cartridge cases—[i]s, at

Nos. 17‐1650 et al. 53

best, an unproven hypothesis.” They also complain that there

are no objective, quantitative standards for determining

whether two ammunition components "match.”

The defendants' argument has respectable grounding. It is

based largely on a report issued by the President's Council of

Advisors on Science and Technology (PCAST). The report

states that the "foundational validity can only be established

through multiple independent black box studies,” and it iden‐

tifies only one such study, the Ames Study. According to

PCAST, the other available studies could not estimate the re‐

liability of firearms analysis because they employed "artificial

designs that differ[ed] in important ways from the problems

faced in casework,” which "seriously underestimate[d] the

false positive [match] rate.” Ultimately, the PCAST report

found that firearms analysis "[fell] short of the criteria for

foundational validity.” The defendants also emphasize that

even the Ames Study had not been published or subject to

peer‐review at the time of trial. Moreover, they contend, the

government's experts misled the jury by testifying about the

Ames Study's error rate, because that rate is not representa‐

tive of the "entire discipline of firearms analysis.”

The defendants brought the PCAST report to the district

court's attention, but the district court chose not to give it dis‐

positive effect, and that choice was within its set of options.

See General Electric Corp. v. Joiner, 522 U.S. 136, 142–43 (1997)

(appellate review of expert‐evidence rulings is only for abuse

of discretion). Rule 702(c) requires testimony to be "the prod‐

uct of reliable principles and methods.” Courts frequently

look to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), which the Rule largely reflects, to assess that point.

Under Daubert, to determine reliability, a court considers

54 Nos. 17‐1650 et al.

whether the theory or technique has been (1) tested, (2) sub‐

jected to peer review and publication, (3) analyzed for known

or potential error rate, and (4) generally accepted within the

specific scientific field. Daubert, 509 U.S. at 592−94.

Taking these criteria into account, the district court found

the toolmark evidence was admissible. It noted that the Asso‐

ciation of Firearms and Toolmark Examiners (AFTE) method‐

ology used by the government's witnesses had been "almost

uniformly accepted by federal courts.” See, e.g., Cazares, 788

F.3d at 989. The AFTE method has been tested and subjected

to peer review. Three different peer‐reviewed journals ad‐

dress the AFTE method, and several reliability studies have

been conducted on it. Although the error rate of this method

varies slightly from study to study, overall it is low—in the

single digits—and as the district court observed, sometimes

better than algorithms developed by scientists. The court also

noted that firearm and toolmark analysis is widely accepted

beyond the judicial system.

The district court used the methodology prescribed by the

Rule, and we see no abuse of discretion in its application of

these principles. Almost all the defendants' contentions were

issues that could be raised on cross‐examination. These argu‐

ments go to the weight of the evidence, not its admissibility.

Expert testimony is still testimony, not irrefutable fact, and its

ultimate persuasive power is for the jury to decide.

D. Recorded Conversations

Chester, Council, Bush, Poe, Ford, and Derrick argue that

the district court erred in admitting Jodale Ford's recorded

Nos. 17‐1650 et al. 55

conversations. Again, we review this ruling for abuse of dis‐

cretion. United States v. McGee, 408 F.3d 966, 981 (7th Cir.

2005).

At trial, Chester called Jodale Ford (to whom we refer as

"Jodale” to avoid confusing him with his brother, defendant

William Ford) as a witness. Jodale was then in state custody

for murder and home invasion. Jodale contradicted most of

the elements of the government's case. He testified that he did

not rob a jewelry store with Chester, that there was no Hobos

gang, and that he was not a leader of the Hobos. On cross‐

examination, Jodale testified that, while in prison, he did not

receive updates about the defendants and did not send letters

to Council. He also denied remembering anything about Dan‐

iels's murder or receiving money from the Hobos while in

prison.

In rebuttal, the government sought to introduce some of

Jodale's jail calls. In these conversations, Jodale asked for up‐

dates on some members of the Hobos and identified himself

as "Hobo.” Callers also gave Jodale information about the

Daniels murder.

The defense objected, arguing that they needed to con‐

front Jodale with the calls before they could be introduced as

prior inconsistent statements under Federal Rule of Evidence

613, which states: "Extrinsic evidence of a witness's prior in‐

consistent statement is admissible only if the witness is given

an opportunity to explain or deny the statement and an ad‐

verse party is given an opportunity to examine the witness

about it, or if justice so requires.” Fed. R. Evid. 613(b). The

government responded that it was not introducing the calls

under Rule 613.

56 Nos. 17‐1650 et al.

Instead, it said, it was planning to introduce the calls un‐

der Rule 608(b), which governs extrinsic evidence of conduct.

Rule 608(b) forbids the use of such evidence to attack a wit‐

ness's character for truthfulness, but it allows its admission

on cross‐examination if the conduct "[is] probative of the

character [of the witness] for truthfulness or untruthfulness.”

The government argued that Jodale's phone calls, i.e., his

prior conduct, was evidence that contradicted his testimony

that he had no relationship to the Hobos.

We have explained the difference between Rules 608(b)

and 613 this way:

In our view, Rule 613(b) applies when two statements,

one made at trial and one made previously, are irrec‐

oncilably at odds. In such an event, the cross‐examiner

is permitted to show the discrepancy by extrinsic evi‐

dence if necessary—not to demonstrate which of the

two is true but, rather, to show that the two do not jibe

(thus calling the declarant's credibility into question).

In short, comparison and contradiction are the hall‐

marks of Rule 613(b)....In contrast, Rule 608(b) ad‐

dresses situations in which a witness' prior activity,

whether exemplified by conduct or by a statement, in

and of itself casts significant doubt upon his verac‐

ity....So viewed, Rule 608(b) applies to a statement, as

long as the statement in and of itself stands as an inde‐

pendent means of impeachment without any need to

compare it to contradictory trial testimony.

McGee, 408 F.3d at 982 (quoting United States v. Winchenbach,

197 F.3d 548, 558 (1st Cir. 1999)). Here, no comparisons are

necessary. The calls themselves cast doubt on Jodale's testi‐

mony. Jodale testified that he knew nothing about the Hobos

Nos. 17‐1650 et al. 57

and that he did not receive updates on them while incarcer‐

ated. Yet the calls show Jodale engaging in conduct that

demonstrates his leadership within the Hobos, including re‐

ceiving updates on the Hobos and giving directions. At any

rate, any error in admitting the calls was harmless. United

States v. Olano, 507 U.S. 725, 734 (1993). The calls were only a

small part of the evidence presented, and, quite frankly, we

suspect that it would have been more prejudicial if Jodale had

been required to explain the calls under Rule 613(b).

E. Chester's Motion to Suppress

Chester argues that the district court erroneously admitted

statements he made on October 22, 2008, when the police

stopped a car in which he was a passenger, took him to the

station, and questioned him. He argues that the officers who

stopped him did not have probable cause.

On June 26, 2008, the FBI and CPD executed a search of an

apartment at 1221 North Dearborn Street in Chicago, pursu‐

ant to a search warrant. The officers found 99.6 grams of her‐

oin. Four months later, on October 22, some of the officers

who had been involved in the Dearborn search headed to

Shark's Fish & Chicken. When Binion and Chester's vehicle

pulled out of the restaurant's parking lot, the officers stopped

it, took Chester to a CPD facility, and interviewed him. After

Chester waived his Miranda rights, he made incriminating

statements.

Before trial, Chester moved to suppress his October 22

statements, arguing that they were the result of an illegal de‐

tention that was not supported by probable cause. The district

court held a suppression hearing in June 2016 to explore the

issue. Both Chester and Binion testified. They stated that they

58 Nos. 17‐1650 et al.

were pulled over, handcuffed, and transported to the police

station involuntarily. Officer Sanchez testified about the stop,

and both Sanchez and Agent Hill testified about the interview

that followed. Sanchez's testimony was riddled with incon‐

sistencies. As one example, Sanchez provided inconsistent

testimony about what led officers to Shark's Fish. Originally,

he stated that Agent Hill had received a tip that Chester was

engaging in criminal activity there. Later, after reviewing a

CPD report, he stated that he had actually been the one to re‐

ceive the tip.

As a result, the government filed a post‐hearing brief in

which it abandoned any attempt to justify the stop based on

Sanchez's testimony. Instead, it argued that, regardless of any

subjective reasons for stopping Chester, the October stop was

lawful because it was supported by probable cause to believe

that Chester unlawfully possessed heroin on June 22, 2008.

The district court agreed that the heroin found during the

Dearborn search provided probable cause to detain and ques‐

tion Chester on October 22 and denied Chester's motion to

suppress.

At trial the jury thus heard Chester's incriminating state‐

ments. During the interview, Chester had told officers that he

was the Hobos' most successful drug dealer and that he

robbed drug dealers with other Hobos. Chester was shown

photographs of the seized heroin, and he did not deny that it

was his. Chester had also offered to cooperate with law en‐

forcement, but he refused to testify publicly.

"Probable cause to make an arrest exists when a reasona‐

ble person confronted with the sum total of the facts known

to the officer at the time of the arrest would conclude that the

Nos. 17‐1650 et al. 59

person arrested has committed ... a crime.” Venson v. Altami‐

rano, 749 F.3d 641, 649 (7th Cir. 2014). Contrary to Chester's

contentions, it does not matter whether the officers who

stopped him did so with the intent of arresting him for the

heroin found months earlier during the Dearborn apartment

search. The officers' subjective intentions are irrelevant so

long as there was probable cause to detain him for any crime.

See Devenpeck v. Alford, 543 U.S. 146, 154–55 (2004). "What

matters, and all that matters, is whether the facts known to the

arresting officers at the time they acted supported probable

cause to arrest.” White v. Hefel, 875 F.3d 350, 357 (7th Cir.

2017). Here, the fact was that Chester had possessed almost

100 grams of heroin. This supplied probable cause to arrest

him. While some time had passed since the search and the ar‐

rest, that "does not necessarily dissipate the probable cause

for an arrest.” United States v. Haldorson, 941 F.3d 284, 291 (7th

Cir. 2019).

Chester argues that the police, particularly Officer

Sanchez, did not have enough information to link the drugs

found at the Dearborn address to him. But there was evidence

connecting him to the apartment. The search was based on in‐

formation provided by Todd, who stated that he had seen

Chester with a gun in the apartment. Surveillance officers saw

Chester enter and exit the Dearborn apartment building, and

women who were present during the search identified Ches‐

ter as the apartment's resident. As for Sanchez's knowledge

specifically, the government contends that collective

knowledge of CPD, the agency he works for, is imputed to

him.

At oral argument, we were concerned with a different as‐

pect of what the arresting officers, particularly those who

60 Nos. 17‐1650 et al.

stopped Binion's car, knew before they make the stop: how

did they know that Chester was a passenger in the car?

Sanchez had testified about this aspect of the stop, but the dis‐

trict court totally rejected his testimony as unreliable, and the

government concedes we cannot rely on him. We therefore

asked the parties to submit post‐argument letters under Fed‐

eral Rule of Appellate Procedure 28 addressing the question

whether Detective Brogan, one of the officers involved in

stopping the car, covered this base.

The short answer is that he offered no such testimony at

the suppression hearing. He did, however, testify at trial that

he saw Chester in a Nissan's passenger seat. The Nissan was

initially parked in a parking lot, before it left and was then

stopped by officers. The government asserts that we "may

consider trial testimony in reviewing a pretrial suppression

ruling.” United States v. Howell, 958 F.3d 589, 596 (7th Cir.

2020). Chester begs to differ and points out that in any event,

Detective Brogan's testimony about whether he identified

Chester before the detention of Binion's automobile was am‐

biguous at best. Moreover, he argues, "it simply does not mat‐

terif Officer[B]rogan happened to identify Mr. Chester before

the stop,” because there is no evidence he communicated such

information to the arresting officer.

The circumstances surrounding the stop of the car are un‐

clear. We ultimately need not wade through the evidence,

however, because any error in admitting Chester's October 22

statements was harmless. "The test for harmless error is

whether, in the mind of the average juror, the prosecution's

case would have been 'significantly less persuasive' had the

improper evidence been excluded.” United States v. Emerson,

501 F.3d 804, 813 (7th Cir. 2007). This trial lasted over four

Nos. 17‐1650 et al. 61

months, and the evidence of Chester's guilt on Count 1 was

overwhelming. The evidence included Jones's testimony that

Chester was the leader of the Hobos and that Chester ordered

other Hobos to distribute drugs. Todd testified about Ches‐

ter's role as a heroin supplier. Recorded conversations of Ford

revealed Chester's role in the Hobos and certain robberies he

committed. Jail calls also linked Chester to the Daniels mur‐

der. This is only some of the relevant evidence. Although a

person's own admissions may be powerful in front of a jury,

there was too much other evidence to find that the prosecu‐

tion's case would have been significantly less persuasive had

Chester's October 22 statements been excluded.

F. In‐Court Identifications of Derrick Vaughn

Derrick argues that it was prosecutorial misconduct to ask

two government witnesses to identify him in court in the pres‐

ence of the jury. He did not object to the prosecutor's state‐

ments at trial, however, and so we review his claim of prose‐

cutorial misconduct for plain error. Rosales‐Mireles v. United

States, 138 S. Ct. 1897 (2018). In order to establish plain error,

a defendant must show (1) "an error that has not been inten‐

tionally relinquished or abandoned;” (2) that was "clear or ob‐

vious;” (3) that "affected the defendant's substantial rights,”

meaning that there is a "reasonable probability that but for

the error, the outcome of the proceeding would have been dif‐

ferent;” and (4) that "seriously affect[ed] the fairness, integ‐

rity, or public reputation of the judicial proceedings.” Id. at

1904–05 (internal citations and quotation marks omitted).

At trial Detective Brogan testified about the joint federal

and state investigation of the Hobos. He described his partic‐

ipation in the execution of a search warrant at a residence as‐

sociated with Bush. During this testimony, Brogan was

62 Nos. 17‐1650 et al.

handed a photograph that had been confiscated during the

search. The government asked Brogan to identify the people

in the photo. After identifying Poe both in the photo and in

court, Brogan identified Stanley. The government asked if

Stanley had a younger brother. Brogan replied that he has two

younger brothers, Ingemar Vaughn and Derrick. The govern‐

ment asked Brogan to point out Derrick in court. Brogan did

so without a peep from the defense. The government then

asked Brogan to identify three additional defendants (Bush,

Chester, and Council) in the photograph and in court.

Maurice Perry, a Fifth Ward BD, was the second witness to

identify Derrick. He testified about the rivalry between the

Fifth Ward and the Dirty Low and mentioned that Stanley

was associated with the Dirty Low. Perry was asked if Stanley

had any brothers. Perry replied that he had two: "Boo [Inge‐

mar] and D‐Block [Derrick].” Derrick stipulated to the in‐

court identification that followed.

Derrick complains that these witnesses identified him as

Stanley's younger brother and then gave additional testimony

regarding events—including a double murder in Perry's

case—without ever mentioning Derrick again. He contends

that these identifications were extremely prejudicial in that

they encouraged the jury to find him guilty by association.

We are not convinced that there was any prosecutorial

misconduct here. In any event, Derrick failed to establish that

any error affected his substantial rights. Rosales‐Mireles, 138 S.

Ct. at 1905. Derrick concedes that the in‐court identifications

were accurate. In addition, the identifications were only a

small part of a four‐month trial. The jury heard plenty of evi‐

dence of his guilt beyond his familial association to the Ho‐

bos. Moreover, the court instructed the jury that a defendant

Nos. 17‐1650 et al. 63

is "not a member of a conspiracy just because he knew and/or

associated with people who were involved in a conspiracy,”

lessening the risk of potential prejudice. Cf. Zafiro v. United

States, 506 U.S. 534, 539 (1993) ("[L]imiting instructions ... of‐

ten will suffice to cure any risk of prejudice.”).

IV

We now turn to sentencing, where we review claims of

procedural error de novo, United States v. Gill, 889 F.3d 373, 377

(7th Cir. 2018), and those about substantive reasonableness

for abuse of discretion. Id. at 378.

A. Life Sentence Eligibility

Chester, Council, Bush, Ford, Poe, and Derrick argue that

the district court erred in sentencing them to more than 20

years in prison on Count 1 (RICO conspiracy). Chester was

sentenced to 40 years and the other trial defendants were sen‐

tenced to life. They contend that these sentences were im‐

proper because the statutory maximum penalty that may be

imposed upon a defendant found guilty of RICO conspiracies

is 20 years unless the government proves the "violation is

based on a racketeering activity for which the maximum pen‐

alty includes life imprisonment.” 18 U.S.C. § 1963(a). They ar‐

gue the government did not meet this burden.

These defendants' violations were based on their partici‐

pation in murders in Illinois. As we noted briefly earlier, un‐

der Illinois law first‐degree murder is normally punishable by

a 20‐ to 60‐ year sentence. 720 ILCS 5/9‐1(a); 730 ILCS 5/5‐4.5‐

20(a). A life sentence is permissible, however, when aggravat‐

ing factors are present. Two aggravating factors are relevant

here: (1) where the murder was "... with intent to prevent the

murdered individual from testifying or participating in any

64 Nos. 17‐1650 et al.

criminal investigation or prosecution...,” 720 ILCS 5/9‐1(b)(8),

and (2) where the murder was "committed in a cold, calcu‐

lated and premeditated manner pursuant to a preconceived

plan, scheme or design to take a human life by unlawful

means, and the conduct of the defendant created a reasonable

expectation that the death of a human being would result

therefrom.” 720 ILCS 5/9‐1(b)(11).

The jury found that the murders of Bluitt, Neeley, Daniels,

Moore, and Anderson qualified as aggravating under at least

one of those two provisions. It also found that each defend‐

ant's racketeering activity included at least one aggravated

first‐degree murder. The district court therefore determined

that the defendants were eligible for life imprisonment.

The defendants disagree. They argue that 18 U.S.C.

§ 1962(d) criminalizes the agreement to commit an act, not the

act itself. Looking for some symmetry, they contend that the

proper analogous state‐law offense is conspiracy to commit

murder. Unfortunately for the defendants, however, section

1963 requires that the "violation”—in this case, the conspir‐

acy—be "based on a racketeering activity for which the max‐

imum penalty includes life imprisonment.” The defendants'

conspiracies were all based on murders for which the maxi‐

mum penalty includes life imprisonment.

The defendants also argue that the "categorical approach”

in Mathis v. United States, 136 S. Ct. 2243 (2016), ought to apply

in a RICO prosecution. This would require us to discern a "ge‐

neric” definition of RICO's predicate offenses and then to

limit the government to generic murder, rendering life im‐

prisonment unavailable under Illinois law. This argument is

not consistent with the text of the statute. Section 1963 con‐

Nos. 17‐1650 et al. 65

templates a statutory enhancement when qualifying circum‐

stances exist. See United States v. Warneke, 310 F.3d 542, 549–

50 (7th Cir. 2002) (affirming life sentences for RICO conspir‐

acy based on Illinois aggravated murder predicate).

Next, the defendants argue that their enhanced sentences

were based on allegations not presented to, or found by, the

grand jury, in violation of the Presentment Clause of the Fifth

Amendment. U.S. CONST. amend. V. They add that the statu‐

tory enhancement is impermissible because the facts increas‐

ing the statutory maximum were not alleged in the indictment

and proven beyond a reasonable doubt at trial, as required by

Apprendi v. New Jersey, 530 U.S. 466 (2000).

An example helps to illustrate this argument. Count 1

charged the defendants with RICO conspiracy. It alleged that

the defendants engaged in murder and attempted murder in

violation of Illinois law. Paragraphs 8(r) and (s) specified

seven murders and five attempted murders that were com‐

mitted in aid of the enterprise. For instance, Paragraph 8(r)(i)

alleged that the "murders committed by members and associ‐

ates of the enterprise in the conduct of the affairs of the enter‐

prise” included "[t]he murder of Wilbert Moore by ARNOLD

COUNCIL and PARIS POE.” The Notice of Special Findings

alleged that each of the murders identified in Paragraphs

8(r)(i)‐(iv) and 8(r)(vii) was committed in a cold, calculated,

and premeditated manner pursuant to a preconceived plan.

The Notice of Special Findings also alleged that Moore and

Daniels were murdered to prevent their testimony or because

they gave material assistance to law enforcement. The Special

Findings, to the extent the jury made them, would make de‐

fendants eligible for enhanced penalties. Using this example,

the defendants argue that only Council and Poe had notice

66 Nos. 17‐1650 et al.

that the jury could return a Special Finding against them, be‐

cause they were the "named defendants.”

We are not persuaded. In the example, every defendant

was placed on notice that the murder of Moore was commit‐

ted by Council and Poe to prevent his testimony, or because

he gave material assistance to law enforcement. Although

Council and Poe were the only "named defendants,” the other

defendants were placed on notice that the conspiracy—the

RICO violation—was based upon racketeering activity

(Moore's murder) for which the maximum penalty includes

life imprisonment. The indictment's identification in Para‐

graph 8(r) of specific coconspirators who committed particu‐

lar murders does not affect the potential coconspirator liabil‐

ity of the remaining defendants.

Chester individually argues that the government con‐

structively amended the superseding indictment by improp‐

erly shifting from a solicitation theory to coconspirator liabil‐

ity. At trial, the government argued that Chester's racketeer‐

ing activity included Bluitt's murder under a Pinkerton theory

of liability. Pinkerton liability need not be specifically alleged

in an indictment, and so there was no constructive amend‐

ment.

B. Chester's Sentence

Recall that Chester faced federal drug charges stemming

from Daniels's controlled heroin buys. In that heroin case,

(No. 13 CR 288 in the district court), Chester was convicted at

trial of two counts: (1) conspiracy to distribute and (2) know‐

ingly and intentionally distributing heroin. In July 2014 the

Probation Officer prepared a Presentence Investigation Re‐

port ("PSR”). The PSR listed Chester's offense level as 26 and

Nos. 17‐1650 et al. 67

his criminal history category as III, resulting in a Guidelines

range of 78 to 97 months' imprisonment. After the PSR was

submitted, the parties agreed to continue the heroin sentenc‐

ing until the conclusion of the RICO trial. The parties later

agreed that the heroin case would be transferred to Judge

Tharp, who was presiding over the RICO trial, No. 13 CR 774,

for joint resolution.

On August 4, 2017, the district court conducted a joint sen‐

tencing hearing for all defendants to calculate their offense

levels under the Sentencing Guidelines. For Chester, it deter‐

mined that his racketeering activity resulted in an offense

level of 51, reduced to 43 (the top level) and that his Guide‐

lines range and statutory maximum for the racketeering of‐

fense was life imprisonment. The court did not explicitly cal‐

culate the Guidelines range for Chester's heroin case.

Six days later, on August 10, the court conducted Chester's

sentencing hearing. It imposed a below‐Guidelines sentence

of 40 years' imprisonment in the racketeering case. In the her‐

oin case, the district court imposed a term of 20 years for each

of the two counts, which were to run consecutively to each

other and concurrently to the term of 40 years in the racket‐

eering case.

Chester argues that the district court's imposition of a sen‐

tence so far above the recommended Guidelines range in the

heroin case, without comment or explanation, was both pro‐

cedurally and substantively unreasonable. At sentencing, dis‐

trict courts must calculate the Guidelines range, give the de‐

fendant an opportunity to identify section 3553(a) factors that

might warrant a non‐Guidelines sentence, and explain its sen‐

tence in relation to the section 3553(a) factors. United States v.

68 Nos. 17‐1650 et al.

Gall, 552 U.S. 38, 49–50 (2007); United States v. Dorsey, 829 F.3d

831, 836−37 (7th Cir. 2016).

The district court did not follow those steps for the heroin

case. This was plain error, especially considering that the size

of the departure from the recommended Guidelines range

and the lack of explanation. The government contends that

the court "dedicated almost 30 pages of transcript to explain‐

ing why a 40‐year sentence was necessary and appropriate.”

But this explanation was focused on the racketeering conspir‐

acy. The government also argues that any error in sentencing

Chester in the heroin case was harmless because the sentence

added no additional time: it was concurrent to the 40 years'

imprisonment on the racketeering count. But this rationale

overlooks possible future developments. Suppose that Con‐

gress passes a retroactive statute that caps RICO conspiracy

sentences at 30 years. That may seem unlikely now, but Con‐

gress has passed other retroactive sentencing laws such as the

Fair Sentencing Act. Such a law would leave the 40‐year her‐

oin sentence untouched. We therefore vacate Chester's sen‐

tence in the heroin case, No. 13 CR 288, and remand for fur‐

ther proceedings consistent with this opinion.

C. Stanley Vaughn's Sentence

Stanley was one of the few defendants who chose not to

go to trial. After he pleaded guilty to Count 1, the RICO con‐

spiracy, his case was severed from that of his co‐defendants.

The government elected not to seek an enhanced statutory

sentence, and so Stanley proceeded directly to sentencing.

On June 29, 2017, the Probation Officer prepared a PSR. In

calculating Stanley's offense level, Probation took the position

that his racketeering activity included participation in (1) the

Nos. 17‐1650 et al. 69

Bluitt/Neeley murders; (2) the attempted murders of Jonte

Robinson, Cashell Williams, and Roosevelt Walker; and (3)

drug trafficking. Each of these was treated as a separate group

under Guideline § 3D1.1. The PSR calculated a total offense

level of 45, reduced to 43 pursuant to Guideline § 4B1.3. Stan‐

ley had a criminal history category of VI, resulting in a Guide‐

lines "range” of life imprisonment. This was reduced to 20

years to reflect the statutory maximum.

At his sentencing hearing, Stanley objected to the determi‐

nation that his racketeering activity included the murders, at‐

tempted murders, and drug trafficking mentioned in his PSR.

The court overruled his objections, based largely on the evi‐

dence presented at his co‐defendants' trial for the

Bluitt/Neeley murders. This evidence established that Stanley

"participate[d] in this ambush.” Although there were some

inconsistencies in the details, the court found no reason to dis‐

credit "the much larger and much more significant consisten‐

cies in the evidence about how this transpired,” particularly

considering the ambush's quick nature. Recorded statements

of Derrick, Stanley's brother, implicated Stanley. Ford and

Jones also placed Stanley within the caravan that ambushed

Bluitt and Neeley.

As for the drug trafficking, the court looked to Todd's and

Jones's testimony and Ford's proffer and found that Stanley

"manag[ed] drug lines at 47th and Vincennes.” It noted that

Stanley was "the leader of the effort to drive the Black Disci‐

ples out of this area and to take it over for the Hobos,” refer‐

ring to an altercation between Stanley and the BDs. The court

also concluded that the evidence was sufficient for the at‐

tempted murders. To each racketeering act, it added an ob‐

struction enhancement that increased the proposed offense

70 Nos. 17‐1650 et al.

level by two levels. With grouping, the combined adjusted of‐

fense level was 49, reduced to 43. This again resulted in a

Guidelines range of life; that in turn was reduced to the 20‐

year statutory maximum.

On August 10, 2017, the court held a second sentencing

hearing to considerthe section 3553(a) factors. Stanley and the

government both argued for a 20‐year sentence. They dis‐

puted, however, whether it should run consecutively or par‐

tially concurrently to an undischarged sentence that Stanley

was serving based on a conviction in the Central District of

Illinois. That conviction, which carried a 262‐month sentence,

was based on Stanley's distribution of heroin in Springfield.

The court held that the Springfield drug trade was relevant

conduct in the racketeering case, but it decided to run Stan‐

ley's 20‐year sentence for the latter consecutively to the

Springfield term. It explained that it was necessary to account

for the violent activity and "personal participation in murders

and attempted murders” that were part of the racketeering

case. The Springfield drug trafficking, the court thought,

"pale[d] in significance to the conduct” in which the Hobos

enterprise engaged. While there was "some overlap,” it said,

the racketeering case "concerns a far broader and more seri‐

ous range of conduct than was at issue in the Central District

case.” Moreover, it noted that Stanley had a lengthy criminal

record and "has had a second chance, a third, fourth, fifth,

sixth, seventh chance. At each opportunity that has been pre‐

sented to him to put his criminal conduct behind him, he has

instead concluded to escalate his criminal conduct ... .”

Stanley raises two arguments on appeal: first, he accuses

the district court of relying on unreliable trial evidence to cal‐

Nos. 17‐1650 et al. 71

culate his offense level; and second, he contends that the evi‐

dence underlying the district court's determination that his

racketeering activity included the murders and attempted

murders was incredible and full of inconsistences. These

make essentially the same point, and so we treat them to‐

gether.

With respect to the Bluitt/Neeley murders, Jones testified

that Stanley was in the third car of the four‐car caravan, but

Derrick told Johnson that Stanley was in the first car. Ford's

proffer suggested yet a different lineup. The district court

chalked these inconsistencies up to the quick and chaotic na‐

ture of an ambush. It also disregarded the fact that neither of

Todd's two sources mentioned Stanley as a participant.

Stanley also argues that the finding that he participated in

the shooting of Jonte Robinson was based on unreliable, in‐

consistent, and untrustworthy evidence. The district court

chose to credit Todd's testimony, which implicated Stanley.

Stanley had rented the car that a witness saw during the inci‐

dent, and he later returned that car to the rental company

without license plates and traded it for a different car. Stanley

argues that Todd was an admitted perjurer who could not be

trusted, and that his testimony conflicted with the testimony

of Robinson on details such as the type of car Stanley had and

where he was shot. Ford told law enforcement that Derrick,

not Stanley, was the shooter.

These discrepancies were for the district court to resolve.

The government needed to satisfy only the preponderance of

the evidence standard. United States v. England, 555 F.3d 616,

622 (7th Cir. 2009). In addition, although due process requires

reliable evidence, the rules of evidence and the Confrontation

Clause do not apply at sentencing, and so the court may rely

72 Nos. 17‐1650 et al.

on hearsay even if the defendant did not have an opportunity

to cross‐examine witnesses. See United States v. Bogdanov, 863

F.3d 630, 635 (7th Cir. 2017).

Although the witnesses did not agree on the details, Jones,

Derrick, and Ford all placed Stanley at the scene of Robinson's

shooting. "[A] sentencing court may credit testimony that is

totally uncorroborated and comes from an admitted liar, con‐

victed felon, or large scale drug‐dealing, paid government in‐

formant.” United States v. Clark, 538 F.3d 803, 813 (7th Cir.

2008) (internal quotation marks omitted). That is what the

court did, accepting Todd's testimony that he met Stanley and

Derrick in front of a daycare center. Stanley was in a GMC

vehicle and Derrick was in a white Grand Am. Stanley

pointed Robinson out and then someone in the Grand Am be‐

gan shooting. Bush, who was with Stanley, also began shoot‐

ing. Todd's testimony was corroborated by a CPD officer's

testimony that an eyewitness to the shooting reported a li‐

cense plate of a vehicle at the scene. The report matched Na‐

tional Car Rental records showing that Stanley rented a blue

GMC SUV that was returned on the day of the shooting with‐

out license plates.

Next, Stanley asserts that the district court abused its dis‐

cretion by running Stanley's sentence consecutively to his un‐

discharged sentence for the Springfield drug conviction. The

government points us to 18 U.S.C. § 3584(a), which says that

if a defendant is "already subject to an undischarged term of

imprisonment,” the court may run a term of imprisonment

"concurrently or consecutively” to the undischarged term.

The default rule is that "[m]ultiple terms of imprisonment im‐

posed at different times run consecutively unless the court or‐

ders that the terms are to run concurrently.” 18 U.S.C.

Nos. 17‐1650 et al. 73

§ 3584(a). Section 3584(b) instructs a court to consult the sec‐

tion 3553 factors when it makes its decision between the two

options. As we indicated earlier, that is just what the court did

here.

Stanley responds in two ways. First, he emphasizes that

the Springfield conduct was relevant conduct to the racketeer‐

ing case. See U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, Guideline

§ 5G1.3(b) applies. It states: "If ... a term of imprisonment re‐

sulted from another offense that is relevant conduct to the in‐

stant offense of conviction ... the sentence for the instant of‐

fense shall be imposed to run concurrently to the remainder

of the undischarged term of imprisonment.” Stanley seizes on

the word "shall” to argue that a concurrent sentence was man‐

datory.

But nothing in the Guidelines is mandatory anymore.

United States v. Booker, 543 U.S. 220 (2005), "made all Guide‐

lines advisory; the judge must understand what sentence the

Guidelines recommend but need not impose it.” United States

v. Bangsengthong, 550 F.3d 681, 682 (7th Cir. 2008). We have

recognized that courts are "free to disagree with a guidelines

recommendation, as the court did here when it rejected con‐

current sentences under section 5G1.3(b).” United States v.

Moore, 784 F.3d 398, 404 (7th Cir. 2015). The district court in

the present case thus was free to choose to impose consecutive

sentences.

Stanley also urges that the court should at least have im‐

posed a partially concurrent sentence because he was sen‐

tenced as a career offender in the Springfield case. Although

the career‐offender designation was correct at the time of sen‐

tencing, Stanley argues, his earlier Illinois Residential Bur‐

glary conviction is no longer a qualifying predicate offense for

74 Nos. 17‐1650 et al.

the enhancement. Because of this, instead of 262 months, he

argues that he would have received only 120 months for the

Springfield conviction, as there is nothing in the record to sug‐

gest the sentencing judge would have imposed an upward

variance of 142 months. He concludes that a partially concur‐

rent sentence was necessary to avoid a composite sentence

that is greater than necessary.

We see no abuse of discretion on the district court's part.

The Springfield sentence was imposed post‐Booker, and so

that court had the discretion to depart from the Guidelines. It

chose not to do so. Here, the district court explained in detail

why it was choosing consecutive sentences, and we have no

reason to overturn its decision.

V

We have hardly spoken of Byron Brown so as not to add

unnecessary length to an already long opinion, but Brown

was also actively involved with the Hobos. We need not delve

into all his criminal activity, which included drug dealing,

home invasions, robbery, shootings, and murder. It is enough

to give a brief summary of the facts pertinent to his individual

contentions.

On August 27, 2014, Brown pleaded guilty to Count 1,

racketeering conspiracy in violation of 18 U.S.C. § 1962(d),

and Count 4, murder in aid of racketeering in violation of 18

U.S.C. § 1959(a). He was represented by two appointed attor‐

neys, Robert Loeb and Keith Spielfogel, during the proceed‐

ings in the district court, including at the change‐of‐plea hear‐

ing. (Under 18 U.S.C. § 3005, as a person facing potential cap‐

Nos. 17‐1650 et al. 75

ital charges, Brown was entitled to representation by two at‐

torneys, at least one of whom was knowledgeable about the

defense of death penalty cases.)

At the change‐of‐plea hearing, the district court found that

Brown was competent to enter a guilty plea. Brown stated

multiple times, under oath, that he was satisfied with both of

his attorneys' representation. He confirmed that he had an op‐

portunity to review with his attorneys the proposed plea

agreement, and he stated he did not need more time to discuss

the plea agreement with counsel. Brown confirmed that he

did not have any questions that were left unresolved in his

mind about whether he should enter into the plea agreement.

Brown also confirmed that he had reviewed and signed the

plea agreement, and that no one had threatened him or pres‐

sured him to do so.

The district court discussed the terms of the plea agree‐

ment's cooperation provision with Brown. Although the mur‐

der‐in‐aid‐of‐racketeering charge carried a mandatory mini‐

mum term of life imprisonment and the possibility of the

death penalty, the agreement specified an agreed sentence of

35 to 40 years' imprisonment, conditioned on Brown's contin‐

ued cooperation with the government. At the request of the

district court, the government summarized what would be re‐

quired of Brown under this provision, telling him that he was

expected to give "complete and truthful testimony in any

criminal, civil, or administrative proceeding[.]” Brown con‐

firmed that he understood and agreed to do so. He also con‐

firmed that he understood that the government had sole dis‐

cretion to determine whether he lived up to that obligation.

76 Nos. 17‐1650 et al.

Brown also acknowledged that he would not be able to

withdraw his guilty plea, and he confirmed his understand‐

ing that he would be subject to life imprisonment if the gov‐

ernment determined he had not kept up his end of the bar‐

gain. Next, the court established a factual basis for Brown's

guilty plea. Afterward, it returned to the issue of voluntari‐

ness, confirming that no one had threatened or forced Brown

to plead guilty. The court then accepted his guilty plea.

The prosecutors later discovered that Brown had provided

materially false information to the government. He did so

during interviews and during testimony before the federal

grand jury. Accordingly, the government told Brown that it

would not seek a reduced sentence on Brown's behalf.

On November 17, 2015, the district court set a sentencing

date. One month later, on December 23, Brown filed a pro se

demand for special appearance and a motion to strike his

guilty plea. On January 21, 2016, Brown's lawyers filed a mo‐

tion to withdraw, which the court granted. It then struck the

sentencing date and appointed new counsel for him.

On May 20, 2016, Brown moved to withdraw his guilty

plea. He alleged that he received ineffective assistance from

Robert Loeb before pleading guilty. Brown asserted that Loeb

had threatened and coerced him to plead guilty even though

he knew Brown had testified falsely before the grand jury.

The district court denied Brown's motion a month later

without an evidentiary hearing, finding that Brown's accusa‐

tions were "exceedingly unreliable,” and that "summary de‐

nial without a hearing [was] warranted.” On March 14, 2017,

the district court sentenced him to concurrent terms of life im‐

prisonment on the two counts.

Nos. 17‐1650 et al. 77

Brown argues that the district court erred when it decided

not to hold an evidentiary hearing to investigate whether he

should be allowed to withdraw his guilty plea. Brown claims

that counsel was ineffective, as defined in Strickland v. Wash‐

ington, 466 U.S. 668 (1984), by (1) failing adequately to advise

him that he would be required to testify at trial and (2) failing

to investigate the circumstances surrounding his untruthful‐

ness, possible coercion by law enforcement, and the possibil‐

ity of correcting misstatements in the grand jury.

Guilty pleas, as we have stressed in the past, should not

lightly be withdrawn. See, e.g., United States v. Chavers, 515

F.3d 722, 724 (7th Cir. 2008). Only a few grounds merit this

relief: "where the defendant shows actual innocence or legal

innocence, and where the guilty plea was not knowing and

voluntary.” United States v. Graf, 827 F.3d 581, 583 (7th Cir.

2016). "A defendant who contends that his guilty plea was not

knowing and intelligent because of his lawyer's erroneous ad‐

vice must show that the advice was not within the range of

competence demanded of attorneys in criminal cases.” United

States v. Trussel, 961 F.2d 685, 690 (7th Cir. 1992) (internal quo‐

tation marks omitted). Moving to withdraw a guilty plea does

not automatically entitle a defendant to an evidentiary hear‐

ing. See United States v. Collins, 796 F.3d 829, 834 (7th Cir.

2015). A defendant must offer substantial evidence support‐

ing his claim, and "if the allegations advanced in support of

the motion are conclusory or unreliable, the motion may be

summarily denied.” Id.

We begin with Brown's contention that his counsel did not

advise him that he would be required to testify at trial against

his co‐defendants. The record shows otherwise. As we noted,

the district court ensured that Brown was fully informed

78 Nos. 17‐1650 et al.

about the plea agreement and his cooperation obligations.

Brown is simply experiencing buyer's remorse; the district

court acted within its discretion in crediting his statements,

made under oath, at the change‐of‐plea hearing.

Brown's assertion that his lawyers failed to investigate his

truthfulness, coercion by law enforcement, and the possibility

of correcting misstatements in the grand jury strikes us as

somewhat bizarre. In any event, Brown did not present this

theory to the district court. We therefore review Brown's ar‐

gument for plain error, which requires error that is plain, ob‐

vious, and prejudicial. United States v. Fuentes, 858 F.3d 1119,

1120−21 (7th Cir. 2017). Brown has come nowhere near meet‐

ing that standard.

Moreover, even assuming Brown received ineffective as‐

sistance of counsel, he cannot show prejudice. "[I]n order to

satisfy the 'prejudice' requirement, the defendant must show

that there is a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty and would have in‐

sisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

We find this unlikely, as Brown was deciding between a plea

and a possible death sentence. In addition, under Brown's

plea agreement, the government had the sole discretion to de‐

cide whether Brown provided complete and truthful cooper‐

ation deserving of a § 5K1.1 motion.

VI

Rodney Jones pleaded guilty pursuant to a plea agreement

to one count of RICO conspiracy in violation of 18 U.S.C.

§ 1962(d). He was sentenced to 450 months in prison, reduced

by 110 months to account for time that he already had served

in a related state case. Jones filed a timely notice of appeal, but

Nos. 17‐1650 et al. 79

his appointed counsel has moved to withdraw under Anders

v. California, 386 U.S. 738 (1967), because she believes an ap‐

peal to be without merit or possibility of success. Pursuant to

Circuit Rule 51(b), Jones was notified of the opportunity to re‐

spond to his counsel's motion to withdraw, but he did not do

so. Having considered counsel's brief, which addresses the

topics one would expect to see in this situation, we grant her

motion to withdraw and dismiss the appeal.

Jones was a member of the Hobos and participated in

many of the crimes discussed above and others, including

armed robbery of a marijuana dealer, the attempted murder

of Courtney Johnson, home invasion and attempted robbery,

the murder of Daniel Dupree, and the home invasion and fel‐

ony murder of Tommye Freeman (the elderly woman whose

car he struck while trying to elude law enforcement). Jones

was charged with RICO conspiracy, and in February 2016, he

pleaded guilty and admitted to facts regarding the predicate

RICO acts.

In the plea agreement, the parties agreed to the relevant

guidelines calculations. In addition, Jones promised to pro‐

vide complete and truthful information to the government

and give complete and truthful testimony if called upon to do

so. In exchange, the government agreed that "[a]t the time of

sentencing, the government shall make known to the sentenc‐

ing judge the extent of defendant's cooperation. If the govern‐

ment determined that defendant has continued to provide full

and truthful cooperation as required by this Agreement, then

the government shall move the Court, pursuant to Guideline

§ 5K1.1, to depart from the low end of the applicable guideline

range, and to impose the specific sentence agreed to by the

parties as outlined below.” The agreement specified that if the

80 Nos. 17‐1650 et al.

government so moved, "the parties have agreed that the sen‐

tence imposed by the Court be a term of imprisonment in the

custody of the Bureau of Prisons of not less than 360 months

and not more than 504 months.” The court was to have dis‐

cretion to reduce the sentence below 360 months only to ac‐

count for time Jones served in state custody pursuant to

charges brought against him by the Cook County State's At‐

torney's Office in People v. Rodney Jones, 09‐CR‐1125729, as the

underlying offense conduct in that state case was part of the

offense conduct in the present case. The Cook County case

was for the felony murder of Freeman. In it, Jones was found

guilty of this offense in March 2013, and he was sentenced to

42 years in state prison. After an agreement between the par‐

ties to the federal case and the State's Attorney, that state sen‐

tence was reduced to 25 years on July 2016. Critically, the fed‐

eral plea agreement also included a waiver of Jones's right to

appeal his conviction and sentence.

In November 2017, the government filed a sentencing

memorandum. Pursuant to section 5K1.1, it asked for a sen‐

tence of 297 months based on Jones's cooperation and testi‐

mony at trial. The government indicated that this sentence

was calculated based on a total sentence of 418 months in

prison for the federal case, which was then reduced by 121

months for the time Jones had spent in prison for the Freeman

murder. Jones requested a total sentence of 239 months based

on various mitigating factors.

The district court held a sentencing hearing on November

20, 2017. It rejected both requests and chose a sentence of 450

months, which it then reduced by the 110 months that it cal‐

culated Jones had already served for the Freeman case. This

Nos. 17‐1650 et al. 81

resulting in a federal sentence of 340 months, to be served con‐

currently with the remainder of the state court sentence. The

court imposed restitution of $22,272.16 for two victims, but it

declined to impose a fine. Jones also received a special assess‐

ment of $100 and a three‐year term of supervised release.

Counsel first considers whether any challenge to Jones's

conviction would be frivolous. Jones indicated to her that he

wants to withdraw his guilty plea, and so a potential issue for

appeal would be whether his plea was knowing and volun‐

tary. Because Jones did not move to withdraw his guilty plea

in the district court, our review is limited to determining

whether plain error occurred. United States v. Driver, 242 F.3d

767, 769 (7th Cir. 2001).

Counsel identifies two Rule 11 omissions by the district

court during the change‐of‐plea hearing. First, the court did

not inform Jones of some of the rights he was waiving by

pleading guilty. These rights included the right to plead not

guilty, the right to assistance of counsel, and the right to con‐

front witnesses. See Fed. R. Crim. P. 11(b)(1)(B), (D), & (E).

"Compliance with Rule 11 is not meant to exalt ceremony

over substance.” United States v. Coleman, 806 F.3d 941, 944

(7th Cir. 2015). "If the record reveals an adequate substitute

for the missing Rule 11 safeguard, and the defendant fails to

show why the omission made a difference to him, his substan‐

tial rights were not affected.” Id. at 944–45. Here, Jones knew

he could plead not guilty because he previously had pleaded

not guilty. In addition, Jones knew that he had the right to

counsel's assistance because he had been continuously repre‐

sented since his arraignment. And Jones's plea agreement ad‐

vised him that he had the right to confront witnesses at trial.

82 Nos. 17‐1650 et al.

Thus, any error made by the omission did not affect Jones's

substantial rights. See Rule 11(h).

The court also failed to discuss the appeal waiver con‐

tained in Jones's plea agreement. See Rule 11(b)(1)(N). To

show that this omission affected his substantial rights, Jones

would have to show that there is a reasonable probability that,

but for the Rule 11 error, he would not have pleaded guilty.

United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). The

appeal waiver is unambiguous, and Jones told the district

court multiple times that he had read the agreement and dis‐

cussed it with his attorney. He also acknowledged in the plea

agreement that his attorneys had explained the rights he was

waiving, that he had read and reviewed each provision with

his attorney, and that he understood and accepted every term.

Counsel notes that it is difficult to see how the omission of the

appellate waiver warning by the district court at the change‐

of‐plea hearing could have affected Jones's decision to plead

guilty, given the benefits he received under the agreement, in‐

cluding a sentence that falls well below the guidelines recom‐

mendation of life in prison. We agree and find no plain error.

Counsel next considered whether any challenge to Jones's

sentence would be frivolous. Jones explicitly waived the right

to appeal his sentence in his plea agreement, and we review

the enforceability of a waiver of appeal rights de novo. United

States v. Woods, 581 F.3d 531, 534 (7th Cir. 2009).

Because Jones's guilty plea was knowing and voluntary,

his waiver of appellate rights in the plea agreement was also

knowing and voluntary. We will honor that waiver unless

"the trial court relied on a constitutionally impermissible fac‐

tor (such as race), or ... the sentence exceeded the statutory

maximum.” Jones v. United States, 167 F.3d 1142, 1144 (7th Cir.

Nos. 17‐1650 et al. 83

1998). Neither exception applies here. Jones's sentence of 450

months was within the statutory maximum (life imprison‐

ment) and it was within the parties' agreed range. Jones's sen‐

tence was also not the result of a constitutionally impermissi‐

ble factor. Therefore, we grant counsel's motion to withdraw,

and we dismiss Jones's appeal.

In the end, almost the entirety of this complex criminal

trial will remain undisturbed thanks to Judge Tharp’s excel‐

lent handling of the case. We AFFIRM the convictions of all the

defendants. We also AFFIRM the sentences of all the defend‐

ants except for Chester. We VACATE Chester’s sentence in

13 CR 288, appeal No. 17‐3063, and order a limited remand

for further proceedings consistent with this opinion. In

Jones’s case, No. 17‐3449, we GRANT Counsel’s motion to

withdraw and DISMISS the appeal.