United States v. Dillard

884 F.3d 758
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 12, 2018
DocketNo. 15-3343
StatusPublished
Cited by3 cases

This text of 884 F.3d 758 (United States v. Dillard) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dillard, 884 F.3d 758 (7th Cir. 2018).

Opinion

Ripple, Circuit Judge.

With the assistance of a cooperating informant, law enforcement surveilled multiple *760heroin sales involving Lance Dillard and Gregory Chester. On the basis of the evidence obtained in that surveillance, Mr. Dillard and Chester were arrested and charged in a three-count indictment: two counts of distribution of heroin, in violation of 21 U.S.C. § 841(b)(1)(C), and one count of conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Both men were convicted on all applicable counts.1 Mr. Dillard then moved for judgment of acquittal and for a new trial. The district court denied the motions and sentenced him to 10 years' imprisonment on each of the first two counts and 70 months on the third count, all to run concurrently.

Mr. Dillard now appeals. He concedes that the district court generally expressed unwillingness to allow testimony that related to his alleged membership in the Hobos, a particularly notorious gang. Nevertheless, he argues, the court allowed numerous law enforcement officials to describe their positions in terms that strongly suggested that Mr. Dillard was a member of a gang and allowed one reference to the Hobos in cross-examination of a lay witness. He also contends that, after a single juror was exposed to inflammatory press coverage, the court's decision to dismiss only that single juror was not sufficient remedial action.

We conclude that the district court did not err in its evidentiary rulings and that the jury was not exposed to significant prejudicial testimony. Furthermore, the district court took adequate steps to protect against any further potential juror bias. Accordingly, we affirm the judgment of the district court.

I

BACKGROUND

A.

In mid-2011, Mr. Dillard and Chester were engaged in a conspiracy to distribute heroin. On three occasions during the course of the conspiracy, the pair sold heroin to a man named Keith Daniels. Daniels was, at the time of the sales, a confidential informant to law enforcement.

On April 8, 2013, Mr. Dillard and Chester were the subjects of separate federal criminal complaints charging distribution of heroin. In the affidavit attached to each complaint, an FBI agent detailed several recorded or monitored transactions with Daniels, although the affidavit referred to him only as the "cooperating source."2 On April 9 and 10, 2013, law enforcement arrested Mr. Dillard and Chester, respectively. On April 14, 2013, while the defendants were both in federal custody on the drug charges, Daniels was murdered outside of his home. A grand jury later charged Mr. Dillard and Chester in a three-count indictment alleging a conspiracy to distribute heroin as well as two counts relating to specific sales to Daniels, which occurred on June 9, 2011, and September 1, 2011.

The Government introduced substantial evidence in the course of several days of trial testimony. The evidence included: audio recordings of calls and meetings between Daniels and the defendants to arrange heroin sales; voice identification of the defendants on the calls by law enforcement officers; a separate audio recording of Chester in prison in which he stated *761that someone had "wor[n] a wire on" him;3 testimony by officers who surveilled the transactions; still photos from videos of certain transactions which showed Mr. Dillard's distinctive forearm tattoo; testimony by Mr. Dillard's girlfriend identifying his nickname as "Double," which could be heard on the recordings, as well as identifying his tattoo, stating that he had multiple cell phones, and further stating that he had rented and purchased cars in her name, including cars used in two meetings relevant to the charged offenses; cell phone records showing calls between the defendants at times relevant to the conspiracy, specifically, before and after transactions; cell phone location data showing their movements on September 1, 2011, which matched the locations they described in substance during recorded calls on that day; and evidence concerning Chester's gambling of several thousands of dollars in the days following the sales to Daniels, including on a trip to Las Vegas with Mr. Dillard. In accordance with pretrial rulings by the district court, the jury was told only that Daniels was deceased and therefore unavailable as a witness; his murder was not mentioned.

B.

Prior to trial, Chester filed a motion in limine to prohibit the Government from introducing testimony regarding the defendants' membership in, or association with, a gang, including the Hobos gang. The district court stated that its tendency was "to err, if at all, on the side of not permitting" evidence of gang affiliation.4 Specifically, the court noted that in applying the balancing test under Federal Rule of Evidence 403, it "almost always ... ha[s] found the danger of unfair prejudice, when it is there, outweighs what is most frequently a kind of modest probative value."5 The Government asserted that both defendants were members of the Hobos street gang and that it was through this gang membership that Daniels knew them and was able to contact them regarding heroin sales. Nevertheless, the court determined that it did not have sufficient information based on the parties' pretrial submissions about how any testimony regarding gang membership would be introduced and for what purpose. The district court denied the motion and determined that it would rule on any gang-related evidence through the course of trial.

Scattered references to gangs occurred throughout trial, sometimes over Mr. Dillard's or Chester's objections and sometimes not. The lion's share of references came from law enforcement officers describing their assignments or their units.6 After one of these exchanges on the third *762day of trial, Mr. Dillard's attorney asked for a sidebar and objected that a particular law enforcement witness had used the term "gang" four or five times in just a few sentences of testimony. The court responded that it understood the objection and was "allergic" to "references to gangs" "unless there is something that really hooks it up."7 The prosecutor then stated that he understood the concern, did not anticipate that particular response by the witness, and would like to "just move on."8 The court indicated that it did not want to draw attention to the gang references with an instruction to ignore, and Mr. Dillard's attorney agreed. The court added that counsel should "be aware and ... caution whatever other witnesses they are going to have to stay away from the terminology."9 Again, Mr.

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Bluebook (online)
884 F.3d 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dillard-ca7-2018.