United States of America v. Streets

Filing 38

MEMORANDUM Opinion. Signed by the Honorable Charles R. Norgle, Sr on 8/28/2019.Mailed notice(smm, )

EA
IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS EASTERN DIVISION
UNITED STATES OF AMERICA,

Case Nos. I : 16-cv-553

TYRONE FRANCIES,
BAXTER STREETS, and
GERALD MEACHUM

l; l6-cv-7 459:' t6-

Judge Charles R. Norgle

ORDER
Petitioner Francies' amended motion for post-conviction relief [23] is denied. Petitioner Streets'
amended motion for post-conviction relief [23] is denied. Petitioner Meachum's amended motion
for post-conviction relief [23] is denied.

MEMORANDUM OPINION
Just over twenty years ago, three then-Chicago police officers-Tyrone Francies, Baxter

Streets, and Gerald Meachum (collectively, "Petitioners"Fwere tried and convicted for
conspiring with a drug dealer (and each other) to rob other purported drug dealers. Unbeknownst
to Petitioners at the time, the victims of their plot on two occasions were not other criminals but
rather undercover federal agents and a confidential informant. Overwhelming evidence against
Petitioners was submitted to

a

jury at a joint trial, including days of relevant testimony and video

and audio recording of a November 15, 1996 attempted robbery, which underlies the crucial

conviction for purposes of this motion, as

will be discussed at length below. During that

November attempted robbery, the video shows Petitioners approaching the federal agent and
confidential informant and, at gunpoint, ordering them out of their car before robbing them of
$11,000, which they later divvied up among the conspirators. Petitioners carried out a similar

robbery on December

4,

1996, which netted the conspirators another $12,000 of FBl-planted

money.

Following the trial, which spanned more than a month, Petitioners were each convicted of
five felony counts: two counts of attempted robbery, in violation of 18 U.S.C. $ 1951 (Hobbs Act)
(Counts 3 and 4); conspiracy to injure, oppress, threaten, and intimidate persons in the exercise
and enjoyment of their constitutional right to be free from deprivation of property without due
process of law, in violation

of l8 U.S.C. $ 241 (Count 5); and two counts of using

and carrying a

firearm during and in relation to the commission of a crime of violence, in violation of l8 U.S.C.
$ 92a(c) (Counts 6 andT).

As noted, two of the convictions were for violations of 18 U.S.C. 924(c), an enhancing
statute that criminalizes the use of a firearm in the commission of certain qualifying, or predicate,

crimes and requires additional and consecutive punishment in the event of conviction. Section
924(c) convictions necessarily operate with a predicate-that is, the 92a@) conviction must be
based on the conviction of some other qualifuing crime plus the

finding of the use and carrying of

a firearm in the course of the predicate offense. Put simply, Section 924(c) is violated when the

individual is convicted of the qualifying crime and the jury also finds that a firearm was used in
the course of that qualifying offense.
For Petitioners, the jury was instructed that the Count 6 Section 924(c) violation could be
predicated on Count 3 (attempted Hobbs Act robbery) or Count 5 (civil rights conspiracy). The

jury was instructed that the Count 7 Section 924(c) violation could be predicated on Count

4

(attempted Hobbs Act robbery). The jury convicted Petitioners on both Section 92a@) counts.
On June 9,1998, the Court sentenced Francies to concurrent terms of 108 months on Counts

4

and 5; a consecutive term

l,

3,

of 60 months on the $ 92a(c) charge in Count 6; and a consecutive

term of 240 months on the $ 92a(c) charge in Count

7.

On June 11, 1998, the Court sentenced

Streets to concurrent terms

of I 08 months on Counts

| , 3 , 4 and

5

; a consecutive term of 60 months

on the $ 92a(c) charge in Count 6; and a consecutive term of 240 months on the $ 92a(c) charge

in Count

7

.

On June 9, 1998, the Court sentenced Meachum to concurrent terms of 188 months'

imprisonment on Counts

l,

3 and

4 and 120 months' imprisonment on Count 5; a consecutive term

of 60 months' imprisonment on the $ 924(c) charge in Count 6; and a consecutive term of 240
months' imprisonment on the $ 924(c) charge in Count 7.
Petitioners now bring their second or successive motions to vacate, set aside, or correct

their sentences under 28 U.S.C. g 2255. Petitioners argue that because the residual clause in
Section 92a@) has been invalidated by the Supreme Court's recent ruling in United States v. Davis,

139 S.Ct.2319 (June 24,201g),each of the two Section 924(c) convictions are invalid and
Petitioners are entitled to immediate release. Petitioners make alternative arguments. First, that
attempted Hobbs Act robbery is not a proper predicate offense now that the residual clause
Section 92a@) has been invalidated. Second, Petitioners argue that, even

of

if attempted Hobbs Act

robbery is a proper predicate offense, Count 6 must still be invalidated because the jury instruction
at

trial stated that the Count 6 92a@) predicate could be either the attempted Hobbs Act robbery

or the

civil rights conspiracy. Petitioners argue that because civil rights conspiracy is not a crime

of violence, it is possible that the Count 6 Section 92a@) conviction was invalidly based on the
use

of a firearm during the commission of the civil rights conspiracy (as opposed to during the

attempted Hobbs Act robbery on November 15, 1996).

The Government's chief counterpunches are (1) that attempted Hobbs Act robbery is a
crime of violence under established Seventh Circuit precedent (a point that Petitioners concede),
and (2) that any effor as to the Count 6 jury instruction is subject to a harmless error analysis,

which here shows that Petitioners were properly convicted of Count 6 for using their guns (their
service guns nonetheless) during the commission of the violent attempted Hobbs Act robbery, and

any potential confusion arising from the alternative nature of the jury instruction was harmless.
The Court agrees with the Government on both points and thus Petitioners' motions are denied.

I. BACKGROUND
The facts at issue in this matter are well known to the Court. In the summer of 1996, a

Confidential Informant ("CI") working with the FBI reported that he had become aware that
Robert Meeks, a civilian drug dealer, was working with Chicago police officers to set up other

drug dealers to rob them of their money and drugs. Subsequent investigation revealed that
Petitioners were the officers to whom the CI referred.

In November 1996, the CI purchased heroin from Meeks-heroin Meeks had told the CI
was from an earlier robbery committed by Meeks and Petitioner Meachum (a Chicago police

officer). In the following weeks, Meeks encouraged the CI to help

set up a robbery

of other drug

dealers. On November 14, 1996, the CI met with Meeks and Meachum to plan such a robbery.
Pursuant to that plan, the next day, November 15,1996, the CI and an undercover federal agent
posing as a drug dealer went to a Jewel parking

lot. The undercover officer brought $l1,000 with

him, purportedly for purchasing drugs. Shortly after their arrival, two police cars approached, one

containing Petitioner Meachum and another officer and the other containing the other two
Petitioners, Francies and Streets. Francies and Streets approached the vehicle, with guns drawn,
and ordered the CI and agent out of the

At that point,

car. Streets then searched the car and located the money.

as had been planned the day

earlier, Streets "arrested" the CI, claiming there was an

outstanding warrant on him. Petitioners allowed the undercover agent to leave freely.
On December 3, 1996, following several other recorded phone conversations, the CI met

with Meachum and Meeks again to plan another robbery. The CI explained that the next day he
would be meeting with another drug dealer who was going to be purchasing a half kilogram of
cocaine for $12,000. Much like the first robbery, on December 4,1996, Petitioners approached

the CI and a second undercover agent with guns drawn and ordered them out of the vehicle. Streets
then recovered the money from within the car and acted as if he had also recovered a large bundle

of cocaine. The undercover agent was allowed to leave the scene again, with Streets saying "I
advise you to get the f--- out of here." Upon re-entering their police car, with the CI "under arrest"

in the back seat, Streets stated, to the CI, 'oWe're so f---in' smooth, ridiculous."

After each robbery, the proceeds were split amongst the defendants (including Meeks) and
the CI retumed his cut to authorities. Petitioners never reported the incidents or catalogued the
money in evidence.

On March 12, 1997, a grand jury returned an indictment for Petitioners and Meeks, and
bench warrants were issued the following day. A superseding indictment was filed on June 11,

1997. The charges in the superseding indictment were as follows:

o

Count 1: Beginning in or about the summer of 1996 and continuing throughout on
or about March 18, 1997, while employed as Chicago Police Offlrcers, Defendants
Meachum, Francies, Streets and Meeks did conspire to commit robbery; in
violation of Title 18, U.S.C. $$ l95l and2;

Count 2; On or about September 28, 1996, Defendant Meeks knowingly and
intentionally distributed approximately nine grams of heroin; in violation of Title
21, U.S.C. $ 842(aXl);
Count 3: On or about November 15,1996, Defendants Meachum, Francies, Streets
and Meeks attempted to commit robbery; in violation of l8 U.S.C. $$ 1951 and2;

Count 4: On or about December 4,lgg6,Defendants Meachum, Francies, Streets
and Meeks attempted to commit robbery; in violation of l8 U.S.C. $$ 1951 and2;

Count 5: From at least November 1996 through in or about December 1996,
Defendants Meachum, Francies, Streets and Meeks, while acting under color of the
laws of the State of Illinois and City of Chicago, did willfully conspire to injure,
oppress, threaten and intimidate persons in the free exercise and enjoyment of a
right secured to them by the Constitution and laws of the United States, that is to
be free from the deprivation of property without due process of law; in violation of
Title 18, U.S.C. $$ 241 and2;

Count 6: On or about November 15,1996, Defendants Meachum, Francies, Streets
and Meeks did knowingly use and carry a firearm during and in relation to the
commission of a crime of violence, namely, the attempted robbery charged in
Count 3;

o

Count 7: On or about December 4,1996, Defendants Meachum, Francies, Streets
and Meeks did knowingly use and carry a firearm during and in relation to the
commission of a crime of violence, namely, the attempted robbery charged in
Count 4;

o

Counts8&9omitted.

On November 18, 1997, a jury trial of all defendants began. At the conclusion of the trial,
as relevant to Count 6 and the challenge presently at issue, the jury (which was also sent back with
a copy

of the superseding indictment) was instructed as follows:

To sustain the charge in Count 6 of using or carrying a firearm in
relation to a violent crime, the government must prove the following
propositions:

First, the defendant is guilty of the offense committed in either
Counts 3 or 5 of the indictment.

And second, on or about November l5th 1996, his co-conspirator
used or carried a firearm during and in relation to the offense
charged in Counts 3 or 5 in furtherance of or as a natural and
foreseeable consequence of a conspiracy to commit the offense
charged in Counts 3 or 5 at a time when the defendant was a member
of the conspiracy to commit the offense charged in Count l.

lf you find from your consideration of all the evidence that both the
alternatives of the second
proposition have been proved beyond a reasonable doubt with

first proposition and one of the

particular defendant, then you should find that defendant
guilty of Count 6 of the indictment.

respect to

a

On December 22, 1997, guilty verdicts were returned, and Petitioners were sentenced on
their respective convictions as follows:

o

On June 9, 1998, Francies was sentenced to concurrent terms of 108 months on
Counts 1,3,4 and 5; a consecutive term of 60 months on the $ 92a(c) charge in
Count 6, and a consecutive term of 240 months on the $ 92a(c) charge in Count 7.

o

On June 11, 1998, Streets was sentenced to concurrent terms of 108 months on
Counts 1,3,4 and 5; a consecutive term of 60 months on the $ 92a(c) charge in
Count 6, and a consecutive term of 240 months on the $ 92a(c) charge in Count 7.

o

On June 9, 1998, Meachum was sentenced to concurrent terms of 188 months'
imprisonment on Counts l, 3 and 4 and 120 months' imprisonment on Count 5; a
consecutive term of 60 months' imprisonment on the $ 92a(c) charge in Count 6;
and a consecutive term of 240 months' imprisonment on the $ 924(c) charge in
Count 7.

Petitioners appealed, and their convictions and sentences were affirmed. United States v.

Meachum, 182 F.3d 923 (7th Cir. 1999). On April 25,2001, the Court entered an order denying
Streets' S 2255 petition, finding that he raised the same issues in the petition that he raised on
direct appeal and thus was not entitled to $ 2255 relief. On July 21, 2016, the Seventh Circuit
authorized Petitioners to file a second or successive $ 2255 petition, in which they argued that the
$ 92a(c) convictions ran afoul of the Supreme Court's decision in Johnson v. United States, 135

S.Ct. 2551 (2015) (invalidating the residual clause in the Armed Career Criminal

Act).

Pursuant

to a government motion, Streets' case was stayed during the pendency of Sessions v. Dimaya, -U.S. --, 138 S.Ct. 1204 (2018). After the Supreme Court issued its April 17,2018 decision, this
Court vacated the stay and ordered that briefing proceed. Petitioners filed a second amended
motion for post-conviction relief on June 12, 2018.

Following the Supreme Court's decision in Davis, Petitioners moved for emergency bail,
which this Court denied in an oral ruling on July 26, 2019. At the time of that oral ruling, the
Court granted each side leave to file pleadings outlining arry additional supplemental authority,
noting that this area of the law appeared to be rapidly evolving. Neither party submitted additional

authority. The Court thus now turns to

a discussion

of the issues.

II. DISCUSSION
A. Procedural Default and Waiver

As an initial matter, the Government argues that Petitioners have waived their right to
challenge the Section 92a@) convictions at this juncture because they failed to argue, at the time

of trial, that the 924(c) convictions could not be predicated on attempted Hobbs Act robbery or
criminal civil rights conspiracy. At that time, however, the law was clear that those crimes could
serve as predicates under 924(c). It was only after the Supreme Court's Johnson decision in 2015,

which ovemrled previous authority related to the residual clause, that opened the door for the
challenge that Petitioners now

bring. Petitioners argue that this previously

erected

"wall of

precedent" supplies cause for Petitioners' failure to raise this defense at trial. The Court agrees
and

will thus address the merits of Petitioners'

arguments.

B. The residual clause in Section 92a(cX3XB) has been invalidated
Petitioners are correct to note that United States v. Davis, has invalidated the residual
clause in Section 924(c). 139 S. Ct. 2319,2336 (2019) ("We agree with the court of appeals'

conclusion that

$ 92a(c)(3)(B) is unconstitutionally vague."). Given this development,

the

question is thus whether the alternative statutory basis for applying the enhancement, the so-called

"force clause" can support the relevant convictions. The "force clause" is laid out at 18 U.S.C.
e2a(cX3XA):

(3)

For purposes of this subsection the term "crime of violence"
means an offense that is a felony and-

(A)
use

has as an element the use, attempted use, or threatened

of physical force

against the person or property

of

another[.]
The analysis for Count 7, which is predicated solely on attempted Hobbs Act robbery, is

simple-if

attempted Hobbs Act robbery is a crime of violence under the force clause, then the

conviction is valid. The analysis for Count 6 is slightly more complex given the alternative nature

of the instruction that was given to the

jury. Assuming

that attempted Hobbs Act robbery is a

crime of violence and the civil rights conspiracy is not a crime of violence, the issue then becomes
whether such an error requires reversal. This reversal analysis would take the form of a plain error

analysis centered on harmlessness. One of our sister District Courts has also adopted this approach

to a markedly similar issue. See Johnson v. United States, No. CR-05-920-RSWL-1, 2019 WL
1790218 (C.D. Cal. Apr. 23, 2019).

C. Attempted Hobbs Act robbery is a crime of violence
Petitioners argue that attempted Hobbs Act robbery, which served as the sole predicate for
the Count 7 Section 92a@) conviction and as an alternative basis for the Count 6 Section 92a@)

conviction does not qualify as a crime of violence. If true, both of the 92a@) convictions would

fail.
a

Petitioners build this contention by first arguing that Hobbs Act robbery does not constitute

crime of violence and that, as a corollary, attempted Hobbs Act robbery is not a crime ofviolence.

Petitioners point out that these propositions are contrary to established Seventh Circuit precedent

which binds this Court, and note that "[o]nly by making this argument can [Petitioners] preserve
[these] claims for further review." See Reply Briefing, 6.
The Court agrees with Petitioners' assessment of the current state of Seventh Circuit law.

Recently, the Seventh Circuit addressed this question in United States v. Anelin,846F.3d954
(7th Cir.), cert. granted, judgment vacated, 138 S. Ct. 126, 199 L.Ed.2d T (2017). The judgment
was vacated related to a different issue in Anglin, and the reasoning with respect to Hobbs Act

robbery is consistent with the current status of the law. Specifically, the Court noted that "[t]he
Hobbs Act defines robbery, in relevant part, as the taking of personal property 'by means of actual
or threatened force, or violence, or fear of injury, immediate or future, to his person or property.'
18 U.S.C. $ 1951(bX1). Committing such an act necessarily requires using or threatening force."

Anelin,846 F.3d at965. The Seventh Circuit noted that it joined "the unbroken consensus of
other circuits to have resolved the question" of whether Hobbs Act robbery was a crime of violence

within the meaning of Section 923(c)(3)(A)-holding that it is. Id. (citing United States v. Hill,

832 F.3d

135,14044 (2dCir.2016); In re St. Fleur, 824 F.3d 1337,1340 (l lth Cir. 2016); United

States v. Howard, 650 Fed.

App'x 466,468 (9th Cir. 2016)).

Moreover, the Seventh Circuit has held that an attempt to commit a violent felony is itself
a

crime of violence. Hill v. United States,877 F.3d717,719 (7th Cir. 2017), cert. denied, 139

S.

Ct. 352,202 L. Ed. 2d 249 (2018) ("When a substantive offense would be a violent felony under
$ 92a(e) and similar statutes, an attempt to commit that offense also is a violent
present case, then, the convictions for attempts to commit Hobbs Act

felony."). In the

robbery-a violent crime-

is itself a crime of violence and thus a proper predicate for a Section924(c) conviction.

As noted, Petitioners have presented arguments that

(l)

Hobbs Act robbery itself is not a

crime of violence and(2) that an attempt should not be treated categorically as a crime of violence

when the object is a violent offense. The Court does not pass on these arguments because the

controlling law is resolved on these issues and as such the Court is bound to the aforementioned
findings.

D. The alternative jury instruction for Count

6 was harmless

error

Petitioners argue that civil rights conspiracy is not a crime of violence. The Government
does not address this issue and instead argues that even assuming the
a crime of violence, the conviction should stand because the faulty

civil rights conspiracy is not

jury instruction is subject to a

harmless error analysis. For purposes of deciding the present matter, the Court need not address
whether the civil rights conspiracy is a crime of violence within the meaning of Section 924(c)
because, even assuming

it is not, any error in the altemative instruction on Count 6 was harmless.

Put simply, if Petitioners (defendants at the time) had objected and the conspiracy count had been
removed from the Count 6 instruction, the outcome would have been the same. In the Court's

view, this is the only logical conclusion from the actual evidence presented in this case years ago.

As the Seventh Circuit noted during the direct appeal in this matter, "the evidence of guilt
. . . is

overwhelming, based on eyewitness testimony, recorded conversations (including recordings

of robberies being committed and the immediate aftermath), and physical evidence, such as crack
cocaine found in the officers'lockers)." United States v. Meachum, 182 F.3d 923 (7th Cir. 1999).
The

jury witnessed a video recording of Petitioners using firearms in the course of committing the

November 15,1996 attempted Hobbs Act robbery, which was the basis for the Count 3 conviction.
When an instruction is given which contains alternative theories of guilt, "one of which is

invalid," and for which the jury returns a general verdict, "a plain error occurs." YafesllJgiled
States, 354 U.S. 298,318-327,77 S.Ct.1064,1 L.Ed.2d 1356 (1957), overruled on other grounds

by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141,57 L.Ed.2d 1 (1978). A plain error will not
result in reversal, however, unless "there is a reasonable probability that but for the error the
outcome of the trial would have been
98 (7th Cir. 2016) ("But even

a

different." United

States v.

Cardena,842F.3d959,997-

jury-instruction error of constitutional dimension is subject to the

familiar requirement that the error have harmed the defendant. . . . The analysis 'requires the same

kind of inquiry' as harmless-error review, except that the burden is on the defendant to show
prejudice. United States v. Olano, 507 U.S. 725,734,1l3 S.Ct. 1770,123 L.Ed.2d 508 (1993).")
(several intemal citations omitted).
Petitioners argue the pivotal question as to harmless error is "whether a jury finding that
the defendants used or carried a gun in relation to the

civil rights conspiracy would necessarily

be

premised on a finding that they used or carried a gun in relation to an attempted robbery." Pet.

Reply Mot. for Bail, 3 (citing Sorich v. United States, 709 F.3d 670,675 (7th Cir. 2013)). The

civil rights conspiracy could be based on the finding of theft rather than a robbery, Petitioners
continue, citing to the statutory definition, and

"[i]f

the jury found that the defendants used or

carried a gun in connection with a conspiracy to deny civil rights by stealing under color of law,

its finding would not be premised on a finding that they attempted to rob."

Id.

Therefore, they

conclude, because the jury could have potentially viewed the civil rights conspiracy as one with

theft, rather than robbery, as its objective, "[a]jury finding that the defendants used or carried a
gun in relation to a civil rights conspiracy involving theft did not need to rest on a finding that they
used or carried a gun in relation to an attempted robbery." Id. at 4.
On the other hand, the Government argues the issue of harmlessness should be resolved

in

line with how a sister district court resolved the issue in Johnson v. United States, No. CR-O5-920-

RSWL-I, 2019 WL 1790218 (C.D. Cal. Apr. 23,2019) (appeal pending). There, the court
similarly addressed a$2255 motion where the petitioner claimed the invalidity of a Section 92a@)
conviction because it had been based on an alternative instruction as to the potential predicates.
There, the

jury had been instructed that the 924(c) conviction could

be predicated on either Hobbs

Act robbery or a conspiracy to commit Hobbs Act robbery. Id. at *6. Taking for granted that the
conspiracy count could not be considered a crime of violence, the court conducted a harmless error
analysis in which it considered the actual evidence that supported each predicate conviction and
analyzed whether the jury rationally could have convicted under 92a@) with the conspiracy charge
as a

predicate. Id. at

*7. After

discussing the record, the Court concluded that the only rational

explanation for the 924(c) conviction was that the jury believed the robbery itself, which was
committed at gunpoint, was the predicate-not the conspiracy. Id.
The alternative instruction in this case was harmless error under either approach, and in

any event the Petitioners have failed to carry the heavy burden on this harmlessness issue.
Petitioners' theory that
as opposed

a

jury could have viewed their activity

as a conspiracy to commit a theft,

to a conspiracy to commit a robbery, is unsupported by the record. The facts that

Petitioners do cite to are simply a watered-down retelling of the very actions that led to the
conviction on the Count 3 attempted robbery charge. See Pet. Reply Mot. for Bail, 3-4. Notably,
t2

Petitioners omit any reference to their committing the crimes, as the Seventh Circuit put it, "at the
points of their service revolvers." Meachum, 182 F.3d at
to think that

a

*3. It stretches the bounds of rationality

jury would convict Petitioners of an attempted robbery that took place at gun point

in Count 3 and yet at the same time convict Petitioners of a civil rights conspiracy (predicated on
the agreement to commit those gun-point hold-ups) to commit theft rather than the very robberies

that the jury watched and heard about over the course of a month.

Moreover, the overwhelming, dramatic, and vivid evidence at trial was such that there is

no doubt that the jury predicated its 92a@) Count 6 conviction on the November 15, 1996
attempted robbery. Petitioners have not carried their burden to show that they were prejudiced by
this error in the instructions, nor could they given the facts of the case. Returning one last time to

the Seventh Circuit's language,

"If

[Petitioners] did not want to risk the severe punishment for

people who use weapons in multiple armed robberies, they should not have committed the crimes."

Meachum, 182 F.3d at*2.
Petitioners make one final convoluted legal argument as to harmlessness revolving around
the fact that they could have been convicted under either of two conspiracy charges for Count 3:

"Since conspiracy is not a crime of violence, an attempt to rob, when based on a robbery
conspiracy or a civil rights conspiracy, is not a crime of violence." See Pet. Reply Mot. for Bail,

5. The finds this argument has no merit for the same

reasons discussed above. The only rational

interpretation of the evidence at trial is that the jury based its conviction for the 924(c) count on
the actual attempted robbery that was committed at gunpoint.

The Court denies Petitioners' request for a certificate
IT IS SO ORDERED.

of

CHARLES RONALD NOR
United States District Court
August 28,2019