6A1.3); see also United States v. Hardamon, 188 F.3d 843, 849 (7th Cir.1999) (stating that during the sentencing phase of a criminal proceeding the rules of evidence do not apply and the sentencing judge is free to consider a wide range of evidence including hearsay.). We uphold the validity of both Hankton and Davis' sentence, but remand to the district court for further consideration as mandated by this court's decision in United States v. Paladino, 401 F.3d 471 (7th Cir.2005). 8. According to Olden's testimony, which was unrebutted at sentencing, it was reasonable for the district court to conclude that Hankton personally distributed between 134 and 1071 grams of crack cocaine, to Olden alone, in the space of just these five months.26 See Salinas, 62 F.3d at 859; see also United States v. Durham, 211 F.3d 437, 444 (7th Cir.2000) (stating that estimates of drug quantity are acceptable if they are based on evidence possessing a sufficient indicia of reliability and not nebulous eyeballing). Robert Guthrie, a former gang-crimes investigator who now oversees the department's public housing unit. The court also considered the testimony of Detective Charles and the statements made by Witnesses A and B in determining that Hankton was indeed a leader of the criminal enterprise. Although not dispositive as to his role as a leader in the organization, Hankton is referred to in the record first as don (during the late 1990s) and then as king (beginning in 1999). The Mickey Cobras now have their own unique written constitution and by-laws, which show a strong Islamic influence, just like those of the modern-day BPSN. Following the arrests, on July 3, 2001, Hankton and Davis, along with six9 other individuals, were indicted inter alia on drug conspiracy and drug possession charges.10 As discussed infra, Hankton and Davis entered into separate plea agreements with the government and each of them admitted facts sufficient to establish criminal liability beyond a reasonable doubt. The district court sentenced Davis at the low end of the sentencing range and ordered that he be imprisoned for 210 months. Said differently, Hankton takes issue with the sentencing judge's focus on his leadership conduct which he claims is unrelated to the underlying crime of distribution of a controlled substance. See id. As this court has stated numerous times [t]he law is very clear that a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. A corollary to this general principle is the rule that a sentencing judge may consider relevant information without regard to the rules of evidence provided that the information has [a] sufficient indicia of reliability to support its probable accuracy. United States v. Lemmons, 230 F.3d 263, 267 (7th Cir.2000) (quoting U.S.S.G. He joined in 1978 when he was eight years old and left the gang in 1996. According to metric-conversions.org, .375 ounces equates to approximately 10.63107 grams. Olden testified that eventually Hankton became King of the north side of the city. Following Agent Darin's testimony, the government introduced Davis' plea agreement as well as the plea agreements of the other co-defendants. In addition, it was the government's position that the plea agreements received in evidence demonstrated Davis' authority position in the MCs, citing references to him as Sultan Supreme or lieutenant in the gang and leader of the MCs at the Lathrop Homes. However, as stated above, the rules of evidence do not apply during sentencing proceedings and hearsay is not only an acceptable basis for a sentencing determination, United States v. Smith, 3 F.3d at 1100, it is often an integral part of the sentencing process. Badger, 983 F.2d at 1459. It is true that later in the same monologue the judge mentions the position Hankton occupied to illustrate the point that the actual amount attributable to him could reach even beyond 1.5 kilograms. It is clear from those statements, however, that without taking Hankton's leadership role in the offense into consideration, the judge determined that the sentencing enhancement should apply, making any other drug amounts attributable to Hankton via his leadership role superfluous.29 Said differently, the judge concluded that Hankton was personally responsible for distributing well beyond 500 gram[s] of crack cocaine, which justified the enhancement of his sentence under 2D1.1. Reversal will be warranted only if, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been made. United States v. Sheikh, 367 F.3d 683, 687 (7th Cir.2004) (quoting United States v. Frazier, 213 F.3d 409, 417 (7th Cir.2000)). The Mickey Cobras are a lairge street gang affiliatit wi the naitionwide gang affiliation kent as the People Nation. Cuisine: American Neighborhood: Los Feliz Website: www.shuttersonthebeach.com A.Validity of Davis and Hankton's Sentencing Enhancements. See supra p. 13. A fact-finder must always draw inferences from veiled allusions and code words. The district judge mandated that the names of the witnesses be kept confidential, due to the fact that they feared retribution from the gang for their statements. See Parra, 402 F.3d at 762. . "It's a fallacy that they put on paper that you have to be 16 on the line. ", Rule No. The rules make it clear that activities normally associated with gangs, like graffiti and fighting, are not acceptable while drugs are being sold, he said. 19. The Mickey Cobras now have their own unique written constitution and by-laws, which show a strong Islamic influence, just like those of the modern-day BPSN. While it may be true that the sentencing judge primarily focused on Hankton's gang activities, there was good reason for doing so. In order to corroborate Agent Darin's testimony, the prosecution called one of Hankton's co-defendants, Jammah Olden. 5. 14 for the Mickey Cobras is "There will be no more paying brothers and sisters to do your security. "It's just like any other corporation," said Donald Hilbring, commander of the Chicago police gang unit. The founder of the Egyptian Cobras was James Cogwell. R. Evid. Fraction and eight of the 11 codefendants charged in the complaint are or have been affiliated with the Vice Lords, the Black P Stones, and the Mickey Cobra Stones, all of which are subgroups of the Chicago-based People gang. We disagree. 841(a)(1). 18. "The Horatio Alger of today is the gang leader," said Knox, referring to the 19th Century author made famous by his stories of rags-to-riches success. Thus, because Agent Darin's credible testimony corroborated the information contained in the co-defendants' plea agreements, the sentencing court did not err in finding that evidence reliable in concluding that Davis was responsible for possessing with the intent to distribute 50 to 150 grams of crack cocaine.27, B.Hankton's Leadership Role in the Offense. Latin Disciples are one of the original gangs in the Folk alliance, alongside the BGD's (Black Gangster Disciples), Simon City Royals, Spanish Cobras, Satan's Disciples, Ashland Vikings, Two-Six, and others. In accordance with Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure Hankton pled guilty to three counts of distribution of crack cocaine, in violation of 21 U.S.C. Please try again. The government also introduced the signed plea agreements of other members of the MCs in which they admitted that they had purchased crack cocaine from Hankton. 11. See U.S.S.G. 7-8, when stating that Hankton exercised authority over persons, certainly well more than five or ten. However, Hankton claims that rather than directing its remarks to Mr. Hankton's conduct as it related to the actual offence, i.e., drug distribution, the court dwelled on Mr. Hankton's gang activities. This statement is nothing more than a self-serving red herring. a. See United States v. Puckett, 405 F.3d 589, 597 n. 8 (7th Cir.2005); United States v. Edwards, 397 F.3d 570, 574 (7th Cir.2005). ", Rule No. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. We simply cannot be sure. Five others remain fugitives. In particular, Ngaya Brunner admits to purchasing approximately 10 and one-half grams of crack from Davis. The rationale for this is clear: The sentencing stage of a trial is one of the most important parts of the criminal process. During the late 1980s and early 1990s, Clarence Hankton and Gregory Davis were prominent members of the MCs, a dangerous and violent street gang that operated primarily out of housing projects on the north-west side of Chicago. See id. ", The motivation for young gang members, Knox said, is "there is a way out of this misery, and I too can be a gang leader.". This court has previously made clear that the control exerted by a defendant may either be direct or indirect in nature. To corroborate Detective Charles' testimony, the government introduced sworn statements from two sub rosa government witnesses, identified in the record only as A and B.12 In their statements both witnesses identify Hankton as the don or leader of the MCs at Cabrini-Green. Also, the reliability of the plea agreements-as well as Agent Darin's testimony for that matter-was bolstered by the fact that, at sentencing, Hankton took advantage of a reasonable opportunity to rebut the hearsay evidence used against him. United States v. Barnes, 117 F.3d 328, 338 (7th Cir.1997) (quoting United States v. Francis, 39 F.3d 803, 810 (7th Cir.1994)). In other words, we may correct such an error only if it is intolerable, or results in a miscarriage of justice. See Paladino, 401 F.3d at 481. 25. The Mickey Cobras' drug operation is set up so that shifts of "security" patrol the lobby area, acting as lookouts for police or anyone else who might interfere with drug sales, according to police and the list of rules. They don't want the heat. This is a highly deferential standard of review and we refuse to second-guess the sentencing judge. United States v. Cleggett, 179 F.3d 1051, 1059 (7th Cir.1999) (citing United States v. Garcia, 66 F.3d 851, 856 (7th Cir.1995)). Despite success in the early stages of the investigation, in the Spring of 2000 investigators came upon a situation where the amount of information they required in order to sustain the issuance of criminal charges against members of the gang could no longer be safely obtained through the investigative techniques they were currently employing (i.e., without putting agents in danger).6 That being the case, the FBI applied for and received a court order authorizing a wiretap of Hankton's cellular phone.7 While monitoring the wiretap, FBI agents recorded a number of inculpatory conversations between Hankton and his associates during the months of June, July and August of 2000.8 The recorded conversations implicated Hankton, Davis and various other individuals in the trafficking and distribution of drugs, as well as other types of gang-related criminal activities and violence. 28: "There will be no getting hi or drinking on the line." And rule No.. Brandon said the Mickey Cobras' rules "is just some attempt by the hierarchy to keep some sort of order. Notes [ edit] Which would make his base offense level 32. In order to assist the court in understanding Hankton's role in the drug trade, Agent Darin-based on his training and four years of experience with drug investigations-testified as to his interpretations of the conversations extracted from the FBI's wiretap recordings, which were replete with code language.14 Specifically, Darin provided background for a number of controlled drug purchases (from Hankton) conducted by the FBI15 and described admissions by the co-defendants that they purchased varying amounts of crack cocaine from Hankton. The informant agreed to wear an undercover recording device while interacting with Hankton. As such, the defendant must have exercised some degree of control over others involved in the commission of the offense or he must have been responsible for organizing others for the purpose of carrying out the crime. Id. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 846 and 18 U.S.C. . An FBI-led task force and Chicago police arrested Hankton and 12 of the other suspects Thursday. 3B1.1(a) of the Guidelines.21 The district judge, after hearing and weighing the totality of the evidence, sentenced Hankton to 300 months imprisonment, which fell in the middle of the applicable guidelines range of 262 to 327 months. The Cobras also moved into the cluster of three buildings in the Washington Park neighborhood at 53rd and State, these buildings were: 5326, 5323 1:30. See Salinas, 62 F.3d at 859. Around 1993-94 the various gangs in the Maniac Familia, led by the Manic Latin Disciples (MLD's) began having violent conflicts with . In addition, Hankton was charged with four separate counts of distribution of cocaine base, in violation of 21 U.S.C. On the record before us, we cannot ascertain with any exacting degree of certainty whether the sentencing judge would have imposed identical sentences for Hankton and Davis had he known that the sentencing guidelines were not mandatory at the time. See United States v. Schmeilski, 408 F.3d 917, 920 (7th Cir.2005). Instead, Davis claims only that the introduction of the co-defendants' plea agreements constituted clear error due to the fact that the agreements were inadmissible hearsay. The indictment also alleged that the defendants participated in various other drug-related crimes arising out of their membership in, and affiliation with, the "Mickey Cobras" ("MCs") street gang, which operated on the north-side of Chicago, Illinois during the 1980s and 1990s. Based in Chicago an consistin lairgely o African-American memmership, the gang is considered vera mobile, wear the colour reid, an factions o the gang are bein established throughoot the Mid-wastren Unitit States. A seller must turn over the proceeds from one pack before he can get another to sell, the rules state. Andrew Martin and Tribune Staff Writer. ", And rule No. Heroin laced with fentanyl has been. What's more, Detective Charles testified that he personally witnessed Hankton standing with several other men in the parking lot of Williams' building at 1150-60 North Sedgwick Street, from 8:00-10:00 p.m. the evening of her murder. Hankton's claim of impermissible double counting finds no support in the record, much less the voluminous amount of case law on this subject. In a nine count superseding indictment issued on May 15, 2002, the grand jury charged both Hankton and Davis with participating in a conspiracy to possess with intent to distribute and to distribute in excess of 500 grams of cocaine and in excess of 50 grams of [crack cocaine] (Count I) and using communication devices in committing the conspiracy (Count VII) in violation of 21 U.S.C. A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the phone is released. United States v. New York Tel. Among the co-defendants were Woodrow Green, Jammah Olden, Rasuah Brunner, Ngaya Brunner, Timeka Murdock and Mekeba Gates, many of whom were also members of the MCs and all of whom also entered into plea agreements with the government. As explained infra, the rules of evidence do not apply at sentencing, thus the judge's decision to consider the code language testimony given by Agent Darin was squarely within his discretion. As the King, Hankton was responsible for everything from the direction of the conversion of powder cocaine into crack to the organization of the gang's basketball games. The evidence presented at sentencing did not separate Hankton's activities into two distinct categories of: (1) gang activities; and (2) drug activities. 9. In fact, both Agent Darin and Jammah Olden testified that the gang's sole source of revenues was from the sale of illegal drugs. See supra p. 7-9. Id. 13. Nonetheless, the government insisted that based on [Hankton's] offense conduct and relevant conduct he was actually responsible for distributing more than 500 grams of crack, which would result in an offense level of 36. The National Law Review - National Law Forum LLC 3 Grant Square #141 Hinsdale, IL 60521 Telephone (708) 357-3317 or toll free (877) 357-3317. Staff writer George Papajohn contributed to this article. In addition, Hankton also claims that the district court erroneously double counted by relying on his leadership role in the offense to enhance his sentence under 3B1.1 and 2D1.1. The rules, chock-full of mispellings and street slang, aren't contained in a tidy corporate packet or posted on a store bulletin board. This evidence corroborates both the wiretap phone conversations as well as Agent Darin's testimony as to the substance of those phone calls in which Hankton solicited the purchase of large amounts of crack cocaine, e.g., telling Olden that he could supply him with a half, or a half an ounce of crack. "He's got the props. David Kelley. UNITED STATES of America, Plaintiff-Appellee, v. Clarence HANKTON and Gregory Davis,1 Defendants-Appellants. Specifically, Agent Darin testified as to the meaning and context of a number of intercepted phone conversations Davis had with Hankton and other individuals in which Davis discussed cooking large amounts of powder cocaine in order to produce crack cocaine. Cocaine base, better known as crack cocaine, is produced by cooking or mixing powder cocaine (cocaine hydrochloride) with sodium bicarbonate and boiling the mixture until left with a rocklike formation of pure crack cocaine (cocaine minus the hydrochloride). On appeal, both Hankton and Davis argue that their respective sentences should be vacated as unconstitutional under the Sixth Amendment citing the district judge's belief that application of the guidelines was mandatory as well as the judge's subsequent enhancement of their sentences on facts which were neither proven to a jury beyond a reasonable doubt nor admitted by the appellants. Scott Lassar said the pursuit of street gangs remained a top priority because of their control of narcotics in Chicago and the resulting violence. Hankton and Davis were also charged with the knowing and intentional use of a communication facility (i.e., a telephone) in the commission of a felony (distribution of a controlled substance), and four separate counts of knowing and intentional distribution of cocaine base, in violation of 21 U.S.C. See United States v. Martinez, 289 F.3d 1023, 1028-29 (7th Cir.2002) (holding that reliability may be established by corroborating evidence). In addition, we reject Hankton's claim that the sentencing judge's application of U.S.S.G. At a press conference that included officials from the FBI, Chicago police and the U.S. Bureau of Alcohol, Tobacco and Firearms, U.S. Atty. Hankton responds that [i]t's guaranteed. Agent Darin testified that butter was a common code word for cocaine and that the two were actually discussing the future sale of either crack or powder cocaine. At the conclusion of the hearing, the trial judge concluded that based on the plea agreements and testimony given at sentencing, Hankton could have reasonably foreseen that the amount of [crack cocaine] he was dealing was well in excess of 500 grams, and could reach even beyond 1.5 kilograms. Indeed, the District Judge determined that the recorded [Title III] calls alone take the amount well beyond the 500-gram minimum.20 Moreover, citing the live testimony and the physical evidence confiscated from Hankton's residence (such as correspondence identifying Hankton as King), the court found that [Hankton] [was] one of several organizers and one of several leaders within [the] structured criminal organization and that he exercised control and power over other members of the gang and felt a four level leadership enhancement to Hankton's sentence was warranted pursuant to U.S.S.G. When the amounts of crack cocaine that the co-defendants admitted Hankton distributed to them were tallied, the government estimated that the amount of crack Hankton distributed (as established in the plea agreement documents alone) to be 1166 grams. 30. Darin testified as to a series of taped wiretap colloquies between Hankton and Davis about the proper way to cook or convert powder cocaine to crack cocaine.24 For example, during one of the taped consultations Davis acknowledges that he successfully cooked at least one ounce of cocaine that day and was fittin' [sic] to do more. In the same conversation Davis states that earlier in the day he had procured an additional dry nine or nine ounces of powder cocaine in hopes of perfecting his crack producing skills. United States v. Giordano, 416 U.S. 505, 549 n. 1, 94 S.Ct. However, a case was made, which was more than strong enough to convince the jury, that Vega used terms like chickens, roosters and it as code words for drugs. Nevertheless, as we have stated, the rules of evidence do not apply at sentencing, see Hardamon, 188 F.3d at 849, and the judge was entitled to consider any relevant evidence assuming that evidence included a sufficient indicia of reliability. See Robinson, 164 F.3d at 1070. Only if a defendant shows that the information before the court was inaccurate, and that the court relied on it can the defendant successfully challenge his sentence. United States v. Smith, 3 F.3d 1088, 1099 (quoting United States v. Johnson, 997 F.2d 248, 254 (7th Cir. See United States v. Barnes, 117 F.3d 328, 337 (7th Cir.1997). 3B1.1(a).11. Specifically, he claims that notwithstanding evidence that he held a high rank in the MCs, his role in that organization did not make him a leader or organizer in a drug distribution offense. Hankton stresses that his rank in the MCs alone did not translate into leadership responsibility, much less control over the gang's drug distribution activities. Thus, because witness testimony-the testimony of a witness, Agent Darin, whom the district judge had previously determined to be credible-was introduced to corroborate information contained in the co-defendant's plea agreements and thus infused that evidence with an indicia of reliability. See United States v. Martinez, 289 F.3d at 1028-29; Torres-Ramirez, 213 F.3d at 980. Stay up-to-date with how the law affects your life. The collective name of joined gangs under the five point star banner (V.L.,B.P.S.,L.K., M.C.,4.C.H.,). See supra p. 19-20. The narcotics investigation started in the fall of 1999 when an undisclosed cooperating witness, associated with Mickey Cobras members for about 13 years, agreed to wear a hidden recorder while buying narcotics from Hankton. There, he said, teenage gang members are more interested in their own pocketbook than gang loyalty. Based on his understanding of the inner-workings of the MCs, Charles stated that on April 12, 2004, Williams had been issued a severe beating or violation as the MCs called it, for allegedly stealing approximately $3,000 from the gang. Indeed, the evidence obtained by investigators made clear that Hankton had, over a period of years, progressed through the hierarchy of the MCs and attained the position of King of Kings, or leader of the MCs on the entire north side of Chicago. In the last two decades, authorities said, they have confiscated typewritten gang bylaws and constitutions, rules for drug dealing, charts of gang hierarchy and a how-to guide for drive-by shootings. In the Illinois prison system, they are a part of the People Nation. After their leader, Mickey Cogwell, was gunned down in front of his South Side home in 1977, the gang adopted the name Mickey Cobras in honor of him. In fact, 2D1.1 and 3B1.1(a) are premised on entirely different conduct; for while an individual may be found to have distributed a certain quantity of drugs making him eligible for a sentence enhancement under 2D1.1, he need not be a leader or organizer of a criminal activity, as described by 3B1.1, to do so. In most gangs, Knox said, the street-level security and sellers are rewarded with some money, occasional parties and the hope of moving up the gang ladder. All customers entering the building must be searched. We disagree. Violations of the instructions in the memo "most certainly will not be tolerated," the chairman and his board write in the memo. Gatlin was murdered because he provided information to the police about the murder of Tony Dawson, a previously unsolved homicide in Minneapolis. The gang long has controlled the area of the Hole, though most of the other buildings in Robert Taylor are the turf of their rival, the Gangster Disciples. "They don't want any trouble . 31: "There will be no breaking into apartment or vacant apartment in the building.". Section 3B1.1 of the sentencing guidelines is applicable where the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. U.S.S.G. The collective name of joined gangs under the five point star banner (V.L.,B.P.S.,L.K., M.C.,4.C.H.,). Introduced were the plea agreements of Davis, Woodrow Green, Jammah Olden, Rasuah Brunner, Ngaya Brunner, Timeka Murdock and Mekeba Gates. 15. Improper and impermissible double counting only occurs when a district court imposes two or more upward adjustments within the guideline range, when both are premised on the same conduct. U.S. v. Haines, 32 F.3d 290, 293 (7th Cir.1994) (emphasis in original). It was allot of Cobra Stones but once Mickey died some stayed Stones,some became Mickey Cobras and some were King Cobras. Davis also argues that the sentencing court erred by admitting unreliable hearsay evidence when determining that he possessed with intent to distribute 50 to 150 grams of cocaine under U.S.S.G. 2. "If anyone break these laws or house rules more than three time, the penalty will increase," rule No.