USA v. Lance Dillard
Filing
Filed opinion of the court by Judge Ripple. AFFIRMED. Richard A. Posner, Circuit Judge*; Kenneth F. Ripple, Circuit Judge and Diane S. Sykes, Circuit Judge. (*Circuit Judge Posner retired on September 2, 2017, and did not participate in the decision of this case, which is being resolved by a quorum of the panel under 28 U.S.C. 46(d).) [6909718-1] [6909718] [15-3343]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3343
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LANCE DILLARD, also known as DOUBLE,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13‐cr‐00288‐1 — Gary Feinerman, Judge.
____________________
ARGUED APRIL 7, 2017 — DECIDED MARCH 12, 2018
____________________
Before POSNER, RIPPLE, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. With the assistance of a cooperating
informant, law enforcement surveilled multiple heroin sales
involving Lance Dillard and Gregory Chester. On the basis of
the evidence obtained in that surveillance, Mr. Dillard and
Circuit Judge Posner retired on September 2, 2017, and did not partici‐
pate in the decision of this case, which is being resolved by a quorum of
the panel under 28 U.S.C. § 46(d).
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Chester were arrested and charged in a three‐count indict‐
ment: two counts of distribution of heroin, in violation of 21
U.S.C. § 841(b)(1)(C), and one count of conspiracy to distrib‐
ute heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Both
1
men were convicted on all applicable counts. 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 partic‐
ularly notorious gang. Nevertheless, he argues, the court al‐
lowed 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 Ho‐
bos 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 evi‐
dentiary rulings and that the jury was not exposed to signifi‐
cant 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.
1 Chester was charged only in Counts One and Three and convicted of
both. Mr. Dillard was charged and convicted on all three counts.
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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 confi‐
dential 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
2
the “cooperating source.” On April 9 and 10, 2013, law en‐
forcement arrested Mr. Dillard and Chester, respectively. On
April 14, 2013, while the defendants were both in federal cus‐
tody 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 Dan‐
iels, 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 in‐
cluded: audio recordings of calls and meetings between Dan‐
iels and the defendants to arrange heroin sales; voice identifi‐
cation of the defendants on the calls by law enforcement of‐
ficers; a separate audio recording of Chester in prison in
2 R.1 at 3.
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which he stated that someone had “wor[n] a wire on” him;
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 fur‐
ther 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, specifi‐
cally, before and after transactions; cell phone location data
showing their movements on September 1, 2011, which
matched the locations they described in substance during rec‐
orded calls on that day; and evidence concerning Chester’s
gambling of several thousands of dollars in the days follow‐
ing 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 men‐
tioned.
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, in‐
cluding the Hobos gang. The district court stated that its ten‐
3 R.283 at 237 (Trial Tr. 729).
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dency was “to err, if at all, on the side of not permitting” evi‐
4
dence of gang affiliation. 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 prej‐
udice, when it is there, outweighs what is most frequently a
5
kind of modest probative value.” 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 submis‐
sions 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 day of trial,
4 R.287 at 16.
5 Id.
6 Examples of this testimony include one FBI agent noting that he “typi‐
cally [does] gang, drug investigations,” R.280 at 6; that he uses a particular
technique in investigations “centered on drugs and gangs,” id. at 67; and
that he met with one of the defendants at the Chicago Police Department’s
“gang intelligence unit,” id. at 72. A Chicago Police officer likewise noted
that he worked for “the Organized Crime Division, gang investigations,”
R.281 at 159 (Trial Tr. 249); that “as a gang investigator … I investigated
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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 “al‐
lergic” to “references to gangs” “unless there is something
7
that really hooks it up.” The prosecutor then stated that he
understood the concern, did not anticipate that particular re‐
8
sponse by the witness, and would like to “just move on.” 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
9
they are going to have to stay away from the terminology.”
Again, Mr. Dillard’s attorney stated that this approach was
10
“fine.”
On the fifth day of trial, a lay witness, Dennis Myers, was
called by Mr. Dillard’s attorney. Myers testified that one of
the voices on a particular recorded call with Daniels was not
criminal gangs, investigated gang shootings, gang homicides, gang‐re‐
lated incidents dealing with narcotics as well as weapons,” id.; and, in a
prior position, he had been responsible for “gang activity and the gang
crime” that happened in a particular area, id. at 163 (Trial Tr. 253). Another
Chicago Police officer described being in the “gang investigations unit” as
a “gang task force officer” and being “specially trained … for the gangs,
gang enterprise, the cities, the City gang crime areas.” R.282 at 37–38.
7 R.282 at 38–39 (Trial Tr. 338–39).
8 Id. at 39 (Trial Tr. 339).
9 Id.
10 Id.
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one of the defendants, but was his own son, Patrick Davis. He
also testified that the phone number used on that call was for
Davis’s phone, and that he had used that number in the past.
Finally, he noted that Davis and Daniels were first cousins.
On cross, the Government asked Myers if he recognized any
other voices in the conversation and if he knew his son’s
friends. Myers said that he did because “[t]hey all live to‐
11
gether.” The Government then asked if he knew Chester.
At that point, Chester’s counsel objected that it was be‐
yond the scope of direct. In a sidebar, the court disagreed, and
the Government further clarified that, given the conspiracy
charge, it was possible they were working with “other people
12
like Patrick Davis” to accomplish the sales. Indeed, the Gov‐
ernment continued, out of the earshot of the jury:
[J]ust so I can be clear, Patrick Davis is a Hobo.
He is in the gang. … Gregory Chester is a Hobo.
That is how all of these guys know each affilia‐
tion. … [T]his witness is stepping right into [sic],
and defense counsel is opening that door.
And it is very troubling to us after all the
work—we have stayed out of the gang side of
the thing… . I cannot cross‐examine this person
on how these people all know each other, his
bias against the Government, his bias against—
in favor of certain individuals, and trying to
protect them because of their gang affiliations,
11 R.284 at 44 (Trial Tr. 791).
12 Id. at 46 (Trial Tr. 793).
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your Honor. I have to go there.13
Chester’s attorney objected that it was prejudicial to Chester
and that Myers was not his witness but Mr. Dillard’s. The
court responded that it “didn’t anticipate that we were going
to be getting into this area at all,” but that “[t]he problem gets
14
manufactured by calling this witness.” The court noted that
15
the Government was “always entitled to bring up bias.”
Mr. Dillard’s attorney seemed to accept the conclusion gener‐
ally as “fine,” but objected that “this is … not bias” and caused
16
“extreme prejudice” to his client.
THE COURT: You know, when it comes to
403 balancing, I am as sensitive to that as any‐
body else. But when it has been raised by reason
of calling a witness and there is this kind of con‐
nection—or arguable connection in terms of
bias, I can’t somehow say, well, okay, we will
take a piece of this fella’s evidence into mind
without considering that component. If it is
raised by calling the witness, it has been raised.
And I didn’t do it. You did.
[Mr. Dillard’s counsel]: I understand, your
Honor. This is going to become a RICO trial if
he knows they are Hobos. Is the ruling—I just
want to be clear on how far this is going to go.
13 Id. at 46–47 (Trial Tr. 793–94).
14 Id. at 47 (Trial Tr. 794).
15 Id. at 48 (Trial Tr. 795).
16 Id.
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THE COURT: Is what?
[Mr. Dillard’s counsel]: Is the ruling—what I
am concerned, is this going to basically become
the RICO case? It is going to be limited to, as I
understand, which I still object to—but as I un‐
derstand but that whether he know these guys
are Hobos—
THE COURT: He is not going to enlarge the
scope of this case. We are dealing with this con‐
spiracy. But what you have done, as I under‐
stand, by calling this fella and getting him to
make this identification of his son, is to put into
the case an issue that I had not anticipated was
going to be in the case. That is—I cannot stuff
that omelet back into the eggshell. You did it.
And what the consequences are, I regret to say,
they are going to be. I didn’t make it. You did.17
Following the exchange, the Government attorney continued
to ask about Davis’s acquaintances and about the defendants.
He asked how they knew each other, and Myers again stated
18
that they all “came from the same project.” The prosecutor
19
then asked, “Do you know what they call themselves?” My‐
ers said no, and then the prosecutor asked, “Have you ever
heard the word ‘Hobo’?,” to which Myers responded that he
17 Id. at 48–49 (Trial Tr. 795–96).
18 Id. at 51 (Trial Tr. 798).
19 Id.
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“heard of it in the paper.” Although the prosecutor contin‐
ued to ask about the relationships between the defendants
and others, no other references to gangs or the Hobos specifi‐
cally were made.
C.
On the first day of trial, the Chicago Sun‐Times had pub‐
lished both in print and online an article referencing the trial,
a larger RICO trial against Hobo members, and the murder of
Daniels following the defendants’ arrest. At the start of the
second day of trial, the prosecutor arrived and alerted the
court and the attorneys for the defendants to the article’s pub‐
lication the day before. The court indicated that it would in‐
quire of the jurors whether anyone had seen the article and
agreed with the prosecutor that it would be “appropriate …
to continue to admonish the jury on a daily basis to avoid the
21
media.” The court apparently alerted the court librarian to
concerns about media coverage and asked for updates. On the
fourth day of trial, after receiving an update, the court spoke
with the attorneys about the fact that the Sun‐Times piece had
been picked up and published online by CBS. To guard
against the possibility of influence, the attorneys agreed that
the court would inquire of the jury whether anyone uses the
internet as a news source and then follow up any positive an‐
swers with individual inquiries with jurors about what web‐
sites they read. The court also said that it was not inclined to
repeat its initial admonition about news to the jury because it
20 Id.
21 R.281 at 4 (Trial Tr. 94).
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believed the jury was capable of following the instruction.
The court accordingly questioned the jurors and none of their
answers indicated that they had used the CBS site or had seen
media coverage of the trial.
The following day, a single juror, David Moskowitz, con‐
tacted the court and asked to speak with the judge. The judge
then called the juror during the instruction conference with
the attorneys present. Juror Moskowitz informed the judge
that his wife had seen the Sun‐Times article and out of con‐
cern for his safety had brought it to his attention. The juror
did not believe he could set it aside and wanted to alert the
court. The court excused him from further service and in‐
quired of the juror, at the request of Mr. Dillard’s attorney,
whether he had spoken to anyone about the article. Ju‐
ror Moskowitz indicated that he had not. No party suggested
any further questioning of any of the jurors.
D.
Mr. Dillard moved for a new trial and judgment of acquit‐
tal at the close of the evidence. The court denied his motion,
and the jury returned a verdict of guilty on all counts.
Mr. Dillard was sentenced to the 10‐year mandatory mini‐
mum on Counts One and Two, and 70 months on Count
Three, each to run concurrently.
II
DISCUSSION
Mr. Dillard now claims that the court erred in its handling
of the gang references and of the prejudicial media coverage
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and that the prosecution compounded these errors. The cu‐
mulative effect, he contends, is the denial of his right to a fair
trial before an impartial jury.
A.
We first examine whether the court erred in allowing ref‐
erences to the term “gang” or “Hobos” at trial. We review the
district court’s rulings on evidentiary issues for an abuse of
discretion. See United States v. Ozuna, 674 F.3d 677, 681 (7th
Cir. 2012). A district court considering such evidence applies
Federal Rule of Evidence 403, determining whether the “pro‐
bative value is substantially outweighed by the danger of …
unfair prejudice” to the defendant. Id. at 682.
Our cases have “long recognized the substantial risk of un‐
fair prejudice attached to gang affiliation evidence, noting
such evidence is likely to be damaging to a defendant in the
eyes of the jury and that gangs suffer from poor public rela‐
tions.” United States v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996)
(internal quotation marks omitted). “We therefore require
careful consideration by district courts in determining the ad‐
missibility of gang membership and gang activity evidence.”
Id.; see also United States v. Montgomery, 390 F.3d 1013, 1018
(7th Cir. 2004) (“[I]n our review we examine the care and thor‐
oughness with which a district judge considered the admis‐
sion or exclusion of gang‐involvement evidence.”).
Mr. Dillard claims that our decision in Irvin, 87 F.3d 860,
counsels that reversal is appropriate here. In Irvin, two de‐
fendants were charged with and convicted of possession with
intent to distribute methamphetamine and of a firearm of‐
fense. At trial, over the defendants’ objections, the jury heard
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various pieces of evidence linking the defendants to the Dia‐
blos, a motorcycle gang. The district court had instructed the
Government to use the term “club,” rather than “gang”; the
Government “then asked several questions mocking the use
of the term motorcycle ‘club,’ before resuming the use of the
word ‘gang.’” Id. at 863. On appeal, we determined that the
majority of references should have been excluded under the
familiar balancing test of Federal Rule of Evidence 403.
In Irvin, we acknowledged that “[w]e have consistently
held that, under appropriate circumstances, gang evidence
has probative value warranting its admission over claims of
prejudice.” Id. at 864. We determined, however, that in Irvin,
the probative value of the evidence was minimal. The Gov‐
ernment had argued that the evidence established a “joint
venture,” essentially “that the defendants’ common member‐
ship in the motorcycle gang made it more likely that they
were involved in the drug transaction together, and thus that
they were both in constructive possession of the drugs and
both intended to distribute the drugs.” Id. The trial court, ref‐
erencing a “conspiracy,” had accepted that reasoning. Id. We
noted, however, that there was no conspiracy charge at issue;
the defendants had been charged individually with posses‐
sion with intent to distribute. Therefore, any supposed agree‐
ment was not an element of any charged offense. We
acknowledged that a joint venture was still a legitimate sub‐
ject for the Government to explore, but concluded that the
gang evidence was not probative:
It may be true that common membership in
any group, whether it be a gang or a church
group, makes it more likely that two people are
involved in a given activity together, illegal or
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not. The inference is certainly weak, however, if
the group itself is not somehow connected to the
activity at issue. In other words, the fact that
[the defendants] are members of a motorcycle
club is not especially probative of whether they
jointly ventured to distribute drugs, unless the
motorcycle club is shown to be involved with
drugs. In this case, we are missing that critical
connection linking the motorcycle gang with
drug trafficking, or any criminal activity for that
matter. The government admitted at oral argu‐
ment that it did not present any evidence
demonstrating that the Diablos was a criminal
organization involved in the distribution of
drugs.
Id. In the face of the extremely low probative value of gang
membership on the charged conduct, we noted “substantial”
danger of unfair prejudice. Id. at 865. We reasoned that gangs
evoke “images of criminal activity and deviant behavior” and
that evidence of gang membership therefore risked “[g]uilt by
association.” Id. The risk was heightened by evidence specific
to that case involving “devil’s heads and demonic insignia,”
which was “clearly inflammatory.” Id. at 866. We therefore
concluded that the admission of the evidence was error. With
respect to one of the two defendants for whom the Govern‐
ment’s evidence of guilt “was far from overwhelming,” we
concluded that the error was not harmless. Id. We affirmed
nevertheless the conviction of another defendant against
whom the Government had a stronger case and who had in‐
troduced certain gang evidence in his own defense.
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We revisited the issue of gang evidence in United States v.
McMahan, 495 F.3d 410 (7th Cir. 2007), judgment vacated in part
on other grounds sub nom. Smith v. United States, 552 U.S. 1091
(2008). In McMahan, “[t]wo law enforcement officers were
asked what sort of work they did”; the first replied that “he
primarily investigated violent street gangs,” and the second
that he was “a gang crime specialist” who “participated in
gang and narcotics investigations.” Id. at 421–22. In finding no
reversible error, we stated,
Irvin does not forbid all gang evidence. But,
more importantly, nothing about Irvin is partic‐
ularly relevant in the present case. Irvin dealt, as
it says, with “gang evidence”—that is, the de‐
fendant’s membership in a gang, the Diablos
motorcycle gang. The evidence included testi‐
mony about a large gang tattoo on a defendant’s
back, two rings (one which said Diablos and one
with a devil’s head), a picture of a vest with
gang insignia, a Diablos “greeting card,” a Dia‐
blos wallet, and other gang‐related personal ef‐
fects. One defendant testified that a motorcycle
gang would kill him if he testified. The evidence
in Irvin was found to be prejudicial and not
harmless. The evidence in the present case can‐
not be compared in any meaningful way with
that in Irvin. Here, the officers said they did
gang investigations; they did not say that is all
they did. They did not say that the defendants
were members of a gang. In total, the testimony
lasted a few minutes in a two‐week trial. The ev‐
idence was not unfairly prejudicial, but even
were we somehow to find prejudice, we would
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also find the admission of the evidence harm‐
less.
Id. at 422.
Although each case must be assessed on its own facts, Irvin and
McMahan are helpful in our review of the district court’s ex‐
ercise of discretion. Mr. Dillard notes, correctly, that the num‐
ber of references in his case exceed those in McMahan. In char‐
acter, however, they are virtually identical. The Government
introduced no direct evidence of Mr. Dillard’s alleged gang
affiliation. No extraordinarily prejudicial evidence, such as
the satanic symbolism in Irvin, ever reached the jury. When
its witnesses mentioned gangs generically as part of a discus‐
sion of their law enforcement assignments, the Government
did not belabor the point or introduce any evidence about the
22
Hobo gang itself. Moreover, after an objection by defense
22 The Government also notes that, like United States v. McMahan, 495 F.3d
410 (7th Cir. 2007), judgment vacated in part on other grounds sub nom. Smith
v. United States, 552 U.S. 1091 (2008), and unlike United States v. Irvin, 87
F.3d 860 (7th Cir. 1996), Mr. Dillard was charged with conspiracy, and we
routinely have held that gang evidence may be admitted, as it was in
McMahan, “to demonstrate the existence of a joint venture or conspiracy
and a relationship among its members.” United States v. King, 627 F.3d 641,
649 (7th Cir. 2010) (internal quotation marks omitted); see also United States
v. Santiago, 643 F.3d 1007, 1011 (7th Cir. 2011) (noting that, because the
charges include conspiracy, gang membership could be probative of rele‐
vant issues, including “level of mutual trust between the individuals”).
Although the Government is correct, and indeed we might have approved
of such references in this case had they been evidence essential to the de‐
fendants’ relationship with each other, the references under review were
not offered for that purpose and we will not consider their probative value
on that basis post hoc.
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counsel to repeated use of the term “gang,” the court in‐
structed the prosecutor to inform future witnesses to avoid
the terminology and the issue did not resurface. Although
hindsight counsels that it might have been better to have
placed this restriction on the Government prior to the presen‐
tation of its case, we certainly cannot say that the district
court’s handling of the matter came even close to constituting
an abuse of discretion. The majority of the gang references fall
squarely within McMahan and are not “unfairly prejudicial.”
23
Id. at 422.
Our chief concern is the Government’s questioning of My‐
ers and the Government attorney’s use of the term “Hobo.”
Mr. Dillard called Myers to provide an alternate voice identi‐
fication for one of the recorded calls involving Daniels. He
claimed that it was the voice of his own son, Davis, rather than
Mr. Dillard. The court thereafter ruled that it would allow the
Government to question Myers about the relationship of Da‐
vis and the defendants, including common gang membership.
The Government asked how the men knew each other, and
also asked Myers if he had heard the term “Hobo.” Myers’s
answers did not show common gang membership and said
nothing about the Hobos; he said only that the two had grown
up together and lived together. The court committed no error
in permitting the line of questioning. The testimony the Gov‐
ernment attempted to elicit would have been probative of bias
23 Our determination that the district court committed no error in permit‐
ting these references, in context and without a tie to Mr. Dillard or any
other particular aggravating circumstances, does not suggest that inci‐
dental references to gang membership are always admissible. The test re‐
mains a balance of the probative value against the conceded prejudice at‐
tached to gang affiliation, consistent with Federal Rule of Evidence 403.
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as a general matter and generally admissible. See Ozuna, 674
F.3d at 682. More importantly, as the Government notes, the
defense offered Myers’s testimony in an attempt to exculpate
Mr. Dillard by showing that it was Davis, not Mr. Dillard, on
the phone. The Government’s effort to expose the relationship
between Davis and the other defendants effectively under‐
mined that attempt, by suggesting that Davis could have been
with Mr. Dillard or could have been an additional member of
the Dillard‐Chester conspiracy. Balanced against this proba‐
tive value is a very low possibility of prejudice. The Govern‐
ment was unsuccessful in eliciting testimony from Myers as
to gang membership and, to its credit, despite the court
clearly ruling that the door had been opened to such testi‐
mony, the Government abandoned the line of questioning
quite quickly.
In certain cases, the district courts have taken even more
cautious approaches to gang references, for example by al‐
lowing or instructing counsel to lead witnesses “during the
testimony that might mention gangs.” See, e.g., United States v.
24
Harris, 587 F.3d 861, 868 (7th Cir. 2009). However, even in
24 In United States v. Harris, 587 F.3d 861 (7th Cir. 2009), we considered a
challenge under Rule 403 to testimony by a law enforcement officer that
he had interviewed the defendant regarding “gang and drug activity” and
“gang information.” Id. at 867. We acknowledged that “[e]vidence of gang
membership can be inflammatory” but found that the district court had
taken “several steps … to reduce the prejudicial impact of [the defend‐
ant’s] admitted gang membership.” Id. Among those steps were preclud‐
ing more inflammatory statements, including the defendant’s admission
to gang membership, and allowing the Government to lead its witnesses
during testimony that might mention gangs. We did not require such
measures, but we noted that their use had resulted in “testimony at trial
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those cases, we have stated that our standard simply “ask[s]
district courts to consider carefully whether to admit evidence
of gang membership and gang activity in criminal prosecu‐
tions.” Id. at 867 (emphasis added). As in Harris, here, the
court expressed its desire to err on the side of caution with the
evidence, and after counsel objected to the limited law en‐
forcement testimony using the word “gang,” none of which
was directly tied to the defendants, the court instructed the
prosecutor to inform future witnesses to avoid the terminol‐
ogy. The district court was plainly sensitive to this issue, hav‐
ing discussed it before and during trial on several occasions,
and, as is evident from the transcript, was very dismayed by
its eventual determination that counsel had opened the door
to more gang testimony. We see no abuse of discretion on this
record.
B.
Mr. Dillard also claims that the district court erred in its
handling of the risks of exposure to prejudicial media cover‐
age. We review a district court’s handling of the risk of preju‐
dice posed by trial publicity for an abuse of discretion. United
States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996).
After the jurors had been admonished once by the district
court to avoid any media coverage which might expose them
to extra‐record evidence in the case, the Sun‐Times published
a brief article about the trial, noting its connection to a much
larger RICO trial, identifying the defendants as members of
that was far less inflammatory than it” might have otherwise been. Id. at
868.
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the Hobo gang, and stating that the confidential informant in
this case, Daniels, was shot more than a dozen times in the
face in retaliation for “snitching.”
After the story was republished online by another national
media outlet, the court met with counsel and decided that the
appropriate course would be to question the jury collectively
about whether they receive news from online sources. If some
jurors did receive news from such sources, those jurors would
be questioned individually about what sources they used to
ascertain whether any juror had been exposed to the story. In
the collective questioning of the jury, several jurors admitted
to generally reading online news, but, in individual question‐
ing, none of the jurors indicated that they routinely read the
sources that had published the article. Several indicated that
they had avoided local media during the trial. At that point,
no party indicated that further questioning or action was re‐
quired. Days later, Juror Moskowitz contacted the court to in‐
dicate that the piece had been sent to him, and he also denied
speaking to anyone else about the article. Again, no further
action was requested.
Mr. Dillard now claims that the article posed a danger of
extreme prejudice. In his view, the likelihood of that prejudice
was so great, given one juror’s admitted exposure, that the
25
court’s treatment of the issue was inadequate.
25 The court and the prosecutor brought the issues to the parties’ attention,
and there was no contemporaneous disagreement with the court’s ap‐
proach to it. The Government therefore argues that the issue was waived
or forfeited. We are inclined to agree that the issue was waived by
Mr. Dillard. The question of how to handle publicity was raised and dis‐
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A district court’s obligation in cases involving prejudicial
publicity is longstanding and straightforward:
[T]he procedure required by this Circuit where
prejudicial publicity is brought to the court’s at‐
tention during a trial is that the court must as‐
certain if any jurors who had been exposed to
such publicity had read or heard the same. Such
jurors who respond affirmatively must then be
examined, individually and outside the pres‐
ence of the other jurors, to determine the effect
of the publicity. However, if no juror indicates,
upon inquiry made to the jury collectively, that
he has read or heard any of the publicity in
question, the judge is not required to proceed
further.
Margoles v. United States, 407 F.2d 727, 735 (7th Cir. 1969).
There is no general presumption of unfairness caused by me‐
dia exposure; instead the danger turns on “the severity of the
threat” posed by the particular publicity, specifically, “the na‐
ture of the information so publicized and the degree of juror
exposure to it.” United States v. Thomas, 463 F.2d 1061, 1063
(7th Cir. 1972).
cussed on multiple occasions in the trial court. At defense counsel’s re‐
quest, the court asked Juror Moskowitz whether he had spoken to anyone
else. Mr. Dillard’s attorney never suggested a more aggressive response
in the course of trial. Even if we were to consider the issue not waived by
counsel’s apparent assent to the district court’s approach because no ob‐
jection was made, we would review for plain error. See United States v.
Olano, 507 U.S. 725, 731–32 (1993).
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In assessing the severity of the threat, it is noteworthy that
this was not a case involving the kind of widespread prejudi‐
cial publicity that has concerned our court in other cases. See,
e.g., United States v. Malsom, 779 F.2d 1228, 1240 (7th Cir. 1985)
(admonishing the jurors to disregard general publicity re‐
garding Libya in a trial involving unlawful exports of imple‐
ments of war); United States v. Solomon, 422 F.2d 1110, 1119
(7th Cir. 1970) (“We cannot say the * * * publicity was so inten‐
sive and extensive or the examination of the entire panel re‐
vealed such prejudice that a court could not believe the an‐
swers of the jurors and would be compelled to find bias or
preformed opinion as a matter of law.” (emphasis added)
(quoting Beck v. Washington, 369 U.S. 541, 557 (1962)). The only
issue in this case was a single article in a print media source,
also available online. Although the damaging nature of the
article is beyond dispute, its reach was not wide.
Mr. Dillard presents two concrete objections to the district
court’s handling of the publicity issue: the court failed to
strongly and repeatedly admonish the jury to avoid media cov‐
erage and failed to individually question the jurors again after
Juror Moskowitz called to report his own exposure and was
excused.
With respect to frequency, the court instructed the jurors
a total of three times to avoid the media or extra‐record mate‐
rial. Certainly, there are cases in which courts have gone fur‐
ther. Mr. Dillard points to United States v. Daddano, 432 F.2d
1119, 1127 (7th Cir. 1970). In that case, the court instructed the
jury forty‐six times in fifteen days. We have never required
such a high level of precaution, and the facts of Daddano, in‐
volving more than fifty published newspaper articles, some
from the front page, are not comparable. Moreover, the trial
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in Daddano occurred before our decision in Margoles, which
provided trial courts with a clear framework for addressing
potentially prejudicial publicity.
The court in this case declined to repeat the admonition
after excusing Juror Moskowitz and specifically stated that it
believed the jury capable of following the first instruction.
This approach is consistent with our general presumption
that jurors follow the court’s instructions. See, e.g., United
States v. Rodriguez, 929 F.2d 1224, 1228 (7th Cir. 1991) (noting
that a court’s striking of testimony and issuing a curative in‐
struction was presumed effective because, “[g]enerally, we
assume the jury followed the court’s instruction”). Moreover,
the court directed its own library staff to monitor the press,
and, through that monitoring, the online publication came to
the attention of defense counsel. When the issue of the online
article arose, it questioned the jurors, consistent with Margo‐
les. In its final instructions, moreover, the court reminded the
jury to consider only the record evidence. Importantly, there
was consensus among counsel that this course of proceeding
was sufficient, and we have no rule that would suggest other‐
wise.
The district court made careful fact‐specific determina‐
tions grounded in prevailing standards. Its understanding of
the law was correct; its factual assessment was reasonable;
there was no abuse of discretion.
Conclusion
The district court did not err either in its treatment of the
incidental references to gangs at trial or in its ruling that the
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defense questioning of Myers opened the door to the Govern‐
ment’s further inquiries about gangs. There was no abuse of
discretion in the court’s balancing, under Rule 403, of the dan‐
ger of unfair prejudice of the statements against their proba‐
tive value. Furthermore, the court followed the procedures set
forth in our cases to assure that Mr. Dillard faced a fair and
impartial jury. Accordingly, the judgment of the district court
is affirmed.
AFFIRMED
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