Appeal from the United States District Court for the Southern District of Illinois, Benton Division.
No. 95 CR 40061 J. Phil Gilbert, Chief Judge.
Before POSNER, Chief Judge, and ESCHBACH and EVANS, Circuit Judges.
Defendants Carl Stewart, Kevin Ferguson, and Darryl Wayne Hall were charged in a fourteen count indictment with drug-related crimes involving crack cocaine. A jury convicted Ferguson and Stewart of conspiracy to distribute and possess with the intent to distribute cocaine base, in violation of 21 U.S.C. sec. 846, and distribution of cocaine base, in violation of 21 U.S.C. sec. 841. The jury convicted Hall of distribution of cocaine base, in violation of 21 U.S.C. sec. 841, but acquitted him on the conspiracy charge. All three now appeal a multitude of issues. We affirm.
Law enforcement agents conducted an extensive investigation of the Marion, Illinois area cocaine industry, in which they recruited a large number of informants who made controlled buys from the defendants. The evidence at defendants' joint trial consisted mostly of testimony from these informants and from co-defendants who were not tried with the defendants because they pled guilty. Because of the number of issues raised, we only briefly summarize the facts here. We enter into more detail as necessary when addressing defendants' arguments below.
The evidence at trial revealed that Stewart *fn1 and Ferguson were joint venturers in the business of crack cocaine. Stewart was Ferguson's "right-hand man." The two distributed drugs from three primary locations: Ferguson's residence on Griggs Street, Stewart's residence on Monroe Street, and a neighborhood park. Ferguson was one of the main suppliers in the Marion, Illinois area. Ferguson funneled the majority of his drugs through Stewart and Stewart relied on Ferguson for his supplies. Ferguson also had others distribute for him, including juveniles. Witnesses testified to purchasing directly from both Stewart and Ferguson, as well as from others who obtained the drugs from one of these two. Based on this evidence, Ferguson and Stewart were convicted by a jury of conspiracy to distribute and possess with the intent to distribute cocaine base, as well as several counts of distribution of cocaine base. Ferguson and Stewart were sentenced to 360 and 216 months in prison, respectively.
In contrast, defendant Hall was acquitted of the conspiracy charge and convicted only of one count of distribution. This conviction was based on the following controlled buy. On March 27, 1995, Hall was at Stewart's residence on Monroe Street. There he met Cynthia Baldwin, a government informant who was looking for Stewart so that she could purchase some drugs. Hall told her that Stewart was busy. Instead of retrieving Stewart, Hall took Baldwin's money, obtained the drugs from Stewart himself, and delivered them to Baldwin. In exchange for this service, Hall asked for a bit of the crack cocaine, which Baldwin gave him. Baldwin did not know Hall at the time, but later identified him from a spread of five photographs. After his conviction, Hall was sentenced to 210 months in prison.
All three defendants appeal their convictions and sentences. Because Ferguson and Stewart present each issue jointly, we will address the issues in the same manner. After addressing the joint arguments of Ferguson and Stewart, we address those raised by Hall.
1. Evidence of Gang Affiliation
In response to a question on cross examination by Stewart's counsel, a government witness testified that Ferguson was making gang signs in a photograph. After this statement, Stewart's counsel continued on the subject of gangs in an apparent attempt to show that the witness was not qualified to identify gang signs. *fn2 The photo was later admitted into evidence. As an initial matter, Stewart has no ground for objection to this evidence, since it was his counsel that brought out the gang affiliation testimony. See United States v. Fulford, 980 F.2d 1110, 1116 (7th Cir. 1992) ("It is well-settled that where error is invited, not even plain error permits reversal."). However, for the same reason that this evidence does not merit a new trial for Ferguson, it would not merit a new trial for Stewart even if he could object despite the circumstances.
Defendants first argue that this evidence of gang affiliation violated their First Amendment rights to free association. See Dawson v. Delaware, 112 S. Ct. 1093 (1992). Second, they argue that the judge abused his discretion under Federal Rule of Evidence 403 when he admitted the evidence because it was overly prejudicial. We need not address whether either error actually exists, because we find the admission of this evidence to be harmless. We note that Justice Blackmun, in his concurrence in Dawson, 112 S. Ct. at 1099-1100, questioned whether harmless error analysis was appropriate when gang affiliation evidence violated a defendant's First Amendment rights, given the potential chilling effect use of such evidence could have. However, because any such chilling effect is minimal when the gang affiliation evidence was introduced by the defense, as it was here, we find harmless error analysis to be appropriate. Accord People v. Shatner, 673 N.E.2d 258, 268 (Ill. 1996) (finding that Dawson court held harmless error analysis to be applicable to erroneous introduction of gang affiliation evidence); Dawson v. State, 608 A.2d 1201, 1203 (Del. 1992) (same).
We should allow the conviction to stand despite error "if we are convinced that the error did not have 'a substantial and injurious effect or influence on the jury's verdict.' " United States v. Irvin, 87 F.3d 860, 866 (7th Cir.) (quoting United States v. Hanson, 994 F.2d 403, 407 (7th Cir. 1993)), cert. denied, 117 S. Ct. 259 (1996); see also Fulford, 980 F.2d at 1117 (applying harmless error analysis in this context). The references to gang membership were minimal, occupying no more than two pages of an over 800 page trial transcript. Further, they were made only at the instigation of defense counsel. Defendants do not contest that the government made no argument based on gang affiliation. See Irvin, 87 F.3d at 867 (holding extensive gang evidence and prosecutor's closing argument based on gang membership harmless when defendant himself testified to gang membership and evidence was overwhelming). Given that the government did not use gang affiliation ...