Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 63--George W. Lindberg, Judge.
Before Bauer, Rovner, and Diane P. Wood, Circuit Judges.
The opinion of the court was delivered by: Rovner, Circuit Judge
As amended October 16, 2002. Petition for rehearing denied.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
BAHMAN MANSOORI, MARK COX, MOHAMMAD MANSOORI, KENNETH CHOICE, AND TERRY YOUNG, DEFENDANTS-APPELLANTS.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 63--George W. Lindberg, Judge.
Before Bauer, Rovner, and Diane P. Wood, Circuit Judges.
The opinion of the court was delivered by: Rovner, Circuit Judge
Appellants Kenneth Choice, Mark Cox, Bahman Mansoori, Mohammad Mansoori, and Terry Young were collectively convicted of conspiracy to possess with intent to distribute cocaine, cocaine base and heroin. Cox and Young were also convicted of possession of cocaine with the intent to distribute; Mohammad Mansoori was convicted of engaging in monetary transactions involving funds derived from criminal activity; and Young was convicted of money laundering. We affirm the appellants' convictions but, based on certain errors at sentencing, vacate their sentences and remand for re-sentencing in conformity with this opinion.
On October 31, 1996, a drug transaction many months in the planning finally came to pass. Several members of the Chicago street gang, Traveling Vice Lords ("TVL"), who were engaged in narcotics trafficking had organized a drug deal that, unbeknownst to them, would be captured on recorded telephone conversations obtained through courtauthorized wiretaps. On that date, TVL leader Terry Young had arranged for TVL member Timothy White to purchase a kilogram of cocaine for resale from Mark Clemons.
Young's right-hand man, Kenneth Choice, was assigned to transfer the cocaine from White to another TVL member, Terry Bronson, who would keep it until Mark Cox came to pick it up for resale on the street. Once Bronson was in possession of the cocaine, the police began to follow his car. A chase ensued that finally ended with Bronson crashing his car into a garage and fleeing the scene of the accident without the cocaine, which the police officers seized. Arrests of the individuals who had participated in the narcotics trafficking ensued.
The evidence at trial revealed that each of the appellants participated in a conspiracy to distribute narcotics in a different capacity. Mohammad Mansoori was not a member of TVL, but along with his brother, Bahman, distributed drugs and guns to Young. Young, Cox, and Choice were all members of TVL. They used the gang to plan highly organized drug transactions that culminated in street-level sales of cocaine and heroin at locations controlled by the gang. Young, a high-ranking TVL member, was in charge of the drug sales. Young obtained drugs and guns from Mohammad and Bahman Mansoori and then distributed both (the drugs for resale, and the firearms for protection) among various members of the gang. He assigned other gang members to certain locations where they carried out their sales. Choice worked directly for Young within the gang, picking up and delivering drugs for various TVL members. Cox also worked directly under Young, managing a large area of drug distribution locations.
Both Mohammad Mansoori and Young purchased property with earnings from the drug enterprise. Mansoori made several large cash payments to contractors for a house he was having built in Highland Park. He had confessed to an accountant and an IRS agent that he did not receive any money from his legitimate enterprises. The police had also stopped Mansoori and seized about $11,000 in cash made from a suspected drug transaction. Young had purchased a house through a nominee purchaser, Lovell Nabors. Although Nabors signed a lease with purchase option for the house, he used Young's money to make the purchase and understood that the house was actually Young's. An IRS agent testified that he did not think that Young could have purchased the property with his legitimate sources of income.
The jury convicted appellants of all charges, and this appeal arises from the convictions and the lengthy sentences that the district court imposed pursuant to those convictions.
On four occasions in late 1996 and early 1997, then-Chief Judge Marvin Aspen of the Northern District of Illinois entered orders authorizing the government to monitor various telephone numbers which, the government believed, the defendants were using to conduct their narcotics business. The orders indicated that the conversations intercepted from these telephone numbers were expected to reveal:
(1) the identities of individuals possessing with intent to distribute and distributing controlled substances;
(2) the locations where the controlled substances were distributed and stored;
(3) the methods by which the controlled substances were distributed and drug proceeds are distributed;
(4) the dates, times and manner of the transportation, receipt, storage, distribution and delivery of the controlled substances and proceeds;
(5) the nature and scope of the conspiracy; and
(6) the identities and roles of unidentified conspirators. Appellants' Joint Appendix ("App.") 228-29, 237-38, 245-46, 254. Each order also compelled the government to minimize (i.e., limit) the interception of conversations that did not relate to the government's investigation.
Monitoring of wire conversations must terminate immediately when it is determined that the conversation is unrelated to communications subject to interception under Chapter 119, Title 18, United States Code. Interception must be suspended immediately when it is determined through voice identification, physical surveillance, or otherwise, that none of the named interceptees or any of their confederates, when identified, are participants in the conversation unless it is determined during the portion of the conversation already overheard that the conversation is criminal in nature. . . . App. 232, 241, 248-49, 257; see 18 U.S.C. § 2518(5).
Conversely, however, the orders also permitted the individual monitoring to spot check any minimized conversation to ensure that the participants had not turned their discussion to illicit matters within the scope of the investigation.
Nos. 99-1492, 99-3533, 99-3569, 99-3570, 99-3623 5 ("If the conversation is minimized, the monitoring individual shall spot check to ensure that the conversation has not turned to criminal matters."). App. 232, 241, 249, 257-58.
Pursuant to these orders, the government intercepted more than 3,500 telephone conversations. In order to determine whether a given conversation fell within the scope of the intercept order or instead concerned matters unrelated to the investigation, the government would initially intercept the conversation for a period of two minutes. If the monitoring individual determined that the conversation was beyond the scope of authorized surveillance, the interception would cease at the end of the two-minute period in compliance with the minimization requirement of the wiretap orders. *fn1 However, if that conversation lasted for more than another minute or so, the monitoring individual would re-intercept the conversation and perform a follow-up spot check to confirm that the conversation had not progressed into the scope of authorized surveillance. In practice, this meant that all telephone calls under two minutes in length were intercepted (whether relevant to the investigation or not) and that one or more two-minute segments of longer conversations were also intercepted, even when those conversations were irrelevant to the investigation. A summary prepared by the government indicates that of all the calls intercepted: 565 conversations were identified as criminal in nature and so were not minimized; 1,791 conversations were not pertinent to the investigation but were not minimized because they lasted no more than two minutes; and another 366 were not pertinent and exceeded two minutes in length, and of these nearly all (362) were minimized. R. 267 at 21. *fn2
In advance of trial, the defendants moved to suppress all of the intercepted conversations, contending that the government had not complied with the minimization requirement and, as a result, had unnecessarily and inappropriately eavesdropped on a number of conversations that were beyond the scope of its investigation. Judge Lindberg denied the motion. Although the judge agreed that the government had intercepted a number of conversations, or portions of conversations, that were beyond the scope of the wiretap orders, he did not believe that the government's agents had listened to more of the conversations than necessary in order to determine that they were irrelevant:
[I]t is understandable that a fair amount of material not pertinent to the investigation wound up being intercepted in this investigation. Many of the conversations were under two minutes in length, and so did not require minimization. The individuals conversing often did so in an ambiguous, guarded, and possibly coded manner so that more of the conversations had to be intercepted to later sort out what in fact they were talking about. The Government had evidence that defendant Terry Young was the head of a major drug ring justifying more extensive interception. And the authorizing judge was supervising the electronic surveillance in an ongoing manner, receiving reports on it at ten day intervals. R. 335 at 2.
At trial, the government introduced approximately 300 of the tape recordings into evidence. Because these recordings captured the defendants discussing narcotics transactions, they proved to be some of the most direct and damning evidence in the prosecution's arsenal.
On appeal, the defendants initially argue that the wiretap orders, by virtue of the provision allowing periodic spot checks of any minimized conversation "to ensure that the conversation has not turned to criminal matters," violated their statutory and constitutional rights. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., includes a mandate that "[e]very [intercept] order and extension thereof shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." 18 U.S.C. § 2518(5). Although the intercept orders in this case included a minimization requirement, the defendants believe that this provision of the orders was rendered virtually meaningless as a result of the orders' additional provision that "the monitoring individual shall spot check to ensure that the conversation has not turned to criminal matters." App. 232, 241, 249, 257-58 (emphasis added). They find the spot-check provision problematic in two respects: (1) the provision imposed no limits on the frequency or duration of spot checks; and (2) because the provision referred broadly to "criminal matters" rather than to the specific criminal activities for which Judge Aspen had authorized interception, the orders permitted the government to check each and every minimized conversation for any discussion of criminal activity, even criminal activity that was unrelated to the government's investigation.
Because the defendants did not make this particular challenge below, our review is for plain error alone, see United States v. Williams, 272 F.3d 845, 854-55 (7th Cir. 2001), cert. denied, 122 S. Ct. 1339 (2002), and we find no such error in the terms of the order. Express limits on the frequency and duration of spot checks may well be impractical, as neither the government nor the authorizing court can know in advance how easy it will be for the monitoring agent to discern whether any given intercepted conversation concerns a subject within the scope of the investigation or not. A conversation may be short and to the point or long and meandering; and a conversation may begin on a nonpertinent topic but switch to a pertinent subject in short order. Use of code language, which as the district judge recognized is common among narcotics traffickers, can make quick assessments of the pertinence of a conversation difficult. So we cannot say that Judge Aspen erred when he refrained from placing a one-size-fits-all limitation on either the frequency or duration of follow-up spot checks or that Judge Lindberg plainly erred when he declined to suppress the results of the surveillance for want of such a limitation.
Nor do we think that the provision's generalized reference to "criminal matters" plainly rendered the spot-check provision overbroad. When read in context with the other terms of the wiretap orders, that language did not give the government license to monitor all minimized conversations for any mention of criminal activity, whether related to the investigation or not. The orders specifically identified the type of evidence that the authorized intercepts were intended to capture. App. 228-29, 237-38, 245-46, 254. Furthermore, the orders required the government to stop monitoring a conversation "immediately" if the conversation turned out not to constitute "communications subject to interception under [Title III.]" App. 232, 241, 248, 257. The orders also acknowledged that Title III allowed for the interception and disclosure only of "those communications relevant to the pending investigation . . . ." App. 232, 241, 248, 257. Indeed, the government's instructions to its monitoring agents noted that "[w]e do not have authorization to overhear evidence concerning the commission or planning of crimes other than those [specified previously in the instructions] as illegal activities." R. 267 Ex. A at 7; see also id. at 3-4 (specifying illegal activities as to which interception permitted). Notwithstanding the language of the spot-check provision, then, the overall terms of the orders made reasonably clear that the government was permitted to check intercepted conversations solely for discussions pertinent to the government's investigation, the nature and scope of which the face of the orders made clear. Any impermissible overbreadth in the spot-check provisions of the orders was not plain.
The defendants' second challenge focuses on the adequacy of the government's efforts to comply with the minimization requirement. What the minimization requirement means, essentially, is that once the monitoring agent has had a reasonable opportunity to assess the nature of an intercepted communication, he or she must stop monitoring that communication if it does not appear relevant to the government's investigation. In this case, the government's instructions to the monitoring agents indicated that they could listen to all calls involving one of the individuals named in the instructions "for a reasonable time, usually not in excess of two minutes, to determine whether the conversation concerns criminal activities." Id. at 5. *fn3 In practice, the agents monitored the entirety of all calls under two minutes in length (some 1,791 calls, 103 of which were in Farsi). Moreover, calls in excess of two minutes that were deemed non-pertinent after the initial two-minute assessment were, per the instructions, periodically reassessed (again for up to two minutes at a time) at intervals of at least one minute. Id. at 5-6. So, theoretically, an agent could listen to the first two minutes of a conversation, decide it was nonpertinent, turn off the listening and recording devices for a minute, then turn them back on and listen to the conversation for another two minutes, and so on--and in this way monitor as much as two-thirds of a non-pertinent conversation. *fn4 The defendants argue that because the government's agents listened to each call for a period of two minutes to determine initially whether or not the conversation fell within the scope of the wiretap orders, and because they performed periodic, two-minute spot-checks on minimized calls, there was no real minimization in practice.
A court assessing the sufficiency of the government's efforts in this regard must ultimately decide whether the steps that agents have taken to minimize the interception of communications unrelated to the investigation were objectively reasonable given the circumstances confronting the agents. See Scott v. United States, 436 U.S. 128, 137, 98 S. Ct. 1717, 1723 (1978). Although the adequacy of the government's minimization efforts necessarily depends on the facts of each case, relevant considerations include the kind and scope of criminal enterprise that the government was investigating, the thoroughness of the government's efforts to ensure that nonpertinent calls will be minimized, the extent to which the government could have foreseen that certain types of conversations would be innocuous and thus subject to minimization, use of code, and the extent to which the authorizing judge oversaw the interception efforts. United States v. Quintana, 508 F.2d 867, 874-75 (7th Cir. 1975); see also United States v. Charles, 213 F.3d 10, 22 (1st Cir.), cert. denied, 531 U.S. 915, 121 S. Ct. 272 (2000); United States v. Bankston, 182 F.3d 296, 307 (5th Cir. 1999), judgment rev'd on other grounds by Cleveland v. United States, 531 U.S. 12, 121 S. Ct. 365 (2000); United States v. Williams, 109 F.3d 502, 507 (8th Cir.), cert. denied, 522 U.S. 917, 118 S. Ct. 303 (1997). "[W]here an investigation involves a drug ring of unknown proportion, as in this case, 'the need to allow latitude to eavesdroppers is close to its zenith.' " Charles, 213 F.3d at 22, quoting United States v. Hoffman, 832 F.2d 1299, 1308 (1st Cir. 1987). We review the district court's minimization assessment for clear error. United States v. Moody, 977 F.2d 1425, 1433 (11th Cir. 1992), cert. denied, 507 U.S. 1052, 113 S. Ct. 1948 (1993); Bankston, 182 F.3d at 306.
We are not inclined to view the government's overall approach to minimization in this case as insufficient. The government was investigating what the district judge described as a "major drug ring." R. 335 at 2. Narcotics traffickers are often aware that their conversations might be overheard or intercepted, and so may choose their words carefully. In this case, Judge Lindberg found that "[t]he individuals conversing often did so in an ambiguous, guarded, and possibly coded manner . . . ." Id. Consequently, the individuals monitoring such conversations cannot be expected to make snap judgments as to whether the subject of the conversation is within the scope of the intercept order. See Quintana, 508 F.2d at 874 ("It is all well and good to say, after the fact, that certain conversations were irrelevant and [monitoring] should have been terminated. However, the monitoring agents are not gifted with prescience and cannot be expected to know in advance what direction the conversation will take.") (internal quotation marks and citations omitted). A number of other courts have found that two to three minutes is a reasonable period of time within which to make an initial judgment as to the pertinence of a conversation. See United States v. Ozar, 50 F.3d 1440, 1448 (8th Cir.), cert. denied, 516 U.S. 871, 116 S. Ct. 193 (1995); United States v. Homick, 964 F.2d 899, 903 (9th Cir. 1992); United States v. Willis, 890 F.2d 1099, 1102 (10th Cir. 1989); United States v. Losing, 560 F.2d 906, 909 n.1 (8th Cir.), cert. denied, 434 U.S. 969, 98 S. Ct. 516 (1977); United States v. Armocida, 515 F.2d 29, 45 (3d Cir.), cert. denied, 423 U.S. 858, 96 S. Ct. 111 (1975); see also Bynum v. United States, 423 U.S. 952, 954, 96 S. Ct. 357, 358 (1975) (Brennan, J., dissenting from denial of certiorari) (noting that brief calls--apparently those of less than three minutes in duration--will generally not be subject to minimization). Moreover, because conversations among traffickers, as among others, may bounce among a variety of topics, periodic spot-checking of minimized conversations is not unreasonable either. See Ozar, 50 F.3d at 1448. Thus, the general parameters under which the government conducted the monitoring here were not inherently suspect. Moreover, we note that the government in the course of its electronic surveillance submitted periodic reports to Judge Aspen, a circumstance that suggests it conducted the surveillance in good faith. See Quintana, 508 F.2d at 875.
But whether, in practice, the government's actual minimization efforts were sufficient is not a point that we need to resolve, ultimately. The adequacy of the government's minimization efforts typically cannot be determined in a generalized fashion. See Scott, 436 U.S. at 140-41, 98 S. Ct. at 1724-25. Yet the defendants have framed their challenge in very broad terms. They appear to suggest, for example, that it was unreasonable for monitoring agents to listen to all calls for an initial two-minute period, apparently on the assumption that a speedier assessment as to the pertinence of the calls was possible in at least some instances. And, indeed, perhaps some of the intercepted conversations did lend themselves to simple and quick categorization as pertinent or non-pertinent, while others required a full two minutes or more to assess. See id. at 140-43, 98 S. Ct. at 1724-26; cf. Quintana, 508 F.2d at 874 (if a pattern of innocent conversations emerges, agents should cease monitoring such conversations; but such patterns will not always be identifiable). The point is, however, that we cannot know whether this is true without examining at least a sampling of the intercepted calls. Likewise, whether the agents performed spot checks at intervals that were too frequent, and whether they listened for too long when they made those checks, is not a question that can be answered responsibly in the abstract. If, after a review of the intercepts, the defendants believed that the government's eavesdropping was too intrusive and that a greater degree of minimization was warranted, then it was incumbent upon them to identify at least a sample of intercepted calls that proves their point. This they have not done. If the defendants were to prevail on their challenge, the appropriate relief likely would be to suppress any conversation or conversations that were inappropriately monitored. See 18 U.S.C. § 2518(10)(a)(iii); Charles, 213 F.3d at 22 (partial suppression of those conversations intercepted improperly is the usual remedy for inadequate minimization efforts; wholesale suppression of all intercepted conversations is reserved for the "particularly horrendous case"), quoting Hoffman, 832 F.2d at 1309; Ozar, 50 F.3d at 1448; see also United States v. Baltas, 236 F.3d 27, 32 (1st Cir.), cert. denied, 532 U.S. 1030, 121 S. Ct. 1982 (2001); United States v. Dorfman, 542 F. Supp. 345, 394-95 (N.D. Ill. 1982), judgment aff'd sub nom. United States v. Williams, 737 F.2d 594 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 1355 (1985). Judge Lindberg pointed out that the defendants had not identified any particular conversation that should have been minimized but was not or that should have been minimized to a greater degree than it was. R. 335 at 2. Even on appeal, the defendants do not identify any such conversation. Nor do the defendants identify any concrete harms resulting from the admission of conversations which, in their view, should have been suppressed for want of appropriate minimization. Consequently, we have been deprived of the requisite basis for assessing the government's minimization efforts. For that reason, we need not, in the end, reach the merits of the minimization argument.
On the government's motion, and over the defendants' objections, the district court decided not to disclose the names or the home and work addresses of prospective and empaneled jurors to the parties, the public, or the media--a step that resulted in an anonymous jury. Judge Lindberg had initially denied the government's request for juror anonymity, remarking that he did not "see any need for it." R. 750, 1/12/98 Transcript ("Tr.") 27. After entertaining further argument on the matter, however, the judge acceded to the request. He cited the following circumstances in support of his ruling: (1) the defendants were involved in organized, violent street crime that had "elements of what is traditionally called organized crime," (2) with access to some 200 firearms, the defendants had the "capacity to harm jurors," (3) allegedly, some of the witnesses and their families had been threatened, (4) the defendants were subject to lengthy terms of incarceration and stiff monetary penalties if convicted, and (5) there would likely be press coverage--"perhaps not extensive, but significant, publicity"--regarding the case. Id. at 116-17. "So it's not the fact that it's a drug case or a firearms case," the judge explained, "but it is the fact that there appears to be organized activity on the part of the defendants and their associates and families that warrants the prophylaxis of juror anonymity." Id. at 117-18. Shortly before jury selection commenced, Judge Lindberg disavowed any reliance upon threats against witnesses and their families, explaining that his principal concerns about the prospect of interference with jurors were based on his experience with another trial involving the Gangster Disciples, a gang unrelated to the Traveling Vice Lords. R. 754-1, 1/20/98 Tr. at 6. This left the organized-crime aspect of the case as the sole basis for the court's decision in favor of juror anonymity. *fn5
In the midst of jury selection, defendant Young's counsel asked the court to give the members of the venire an instruction indicating that their names and addresses were being withheld for reasons other than their own safety, so as to allay any suspicions among prospective jurors that their anonymity might otherwise arouse and to thereby minimize the potential prejudice to the defendants. See United States v. Crockett, 979 F.2d 1204, 1216-17 (7th Cir. 1992), cert. denied, 507 U.S. 998, 113 S. Ct. 1617 (1993). The court agreed to give an instruction to the effect that the jurors' identifying information was being withheld in order to prevent the media from contacting them. R. 754-3, 1/22/98 Tr. 380. However, when the full venire was assembled for final questioning, the judge neglected to give the instruction, and the parties did not remind him to do so.
The defendants argue now, as they did below, that the circumstances confronting the court did not warrant an anonymous jury and that the court therefore abused its discretion in empaneling such a jury. Noting that the district court also failed to deliver an appropriate ameliorative instruction, they contend that the defense was so prejudiced by the anonymity as to necessitate a new trial. Although we agree that the court abused its discretion in empaneling an anonymous jury, see United States v. DiDomenico, 78 F.3d 294, 301 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S. Ct. 507 (1996) (decision to empanel anonymous jury reviewed for abuse of discretion), in view of the district court's careful voir dire of prospective jurors and the overwhelming evidence of the defendants' guilt, we find the error harmless.
Empaneling an anonymous jury is an extreme measure that is warranted only where " 'there is strong reason to believe the jury needs protection.' " Crockett, 979 F.2d at 1215, quoting United States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir. 1991), cert. denied, 505 U.S. 1220, 112 S. Ct. 3029 (1992). "An anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence." United States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994), cert. denied, 515 U.S. 1132, 115 S. Ct. 2558 (1995); see also United States v. Sanchez, 74 F.3d 562, 564 (5th Cir. 1996); United States v. Edmond, 52 F.3d 1080, 1090 (D.C. Cir.) (per curiam), cert. denied, 516 U.S. 998, 116 S. Ct. 539 (1995); United States v. Scarfo, 850 F.2d 1015, 1023-26 (3rd Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263 (1988); United States v. Thomas, 757 F.2d 1359, 1363-65 (2nd Cir. 1985), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 67 (1985), and cert. denied, 479 U.S. 818, 107 S. Ct. 78 (1986). Juror anonymity also deprives the defendant of information that might help him to make appropriate challenges--in particular, peremptory challenges--during jury selection. DiDomenico, 78 F.3d at 301; Edmond, 52 F.3d at 1090.
Yet, neither the right to a presumption of innocence nor the right to exercise peremptory challenges is a constitutional absolute; each, at times, must yield to the legitimate demands of trial administration and courtroom security so long as steps are taken to ensure that the defendant receives a fair trial.Id.
A court weighing the need for an anonymous jury must therefore balance the defendant's interest in preserving the presumption of innocence and in conducting a useful voir dire against the jurors' interest in their own security and the public's interest in having a jury assess the defendant's guilt or innocence impartially. United States v. Amuso, 21 F.3d 1251, 1264 (2nd Cir.), cert. denied, 513 U.S. 932, 115 S. Ct. 326 (1994); accord Edmond, 52 F.3d at 1090. Factors bearing on the propriety of an anonymous jury include the defendant's involvement in organized crime; his participation in a group with the capacity to harm jurors; whether he previously has attempted to interfere with the judicial process; the severity of the punishment that the defendant would face if convicted; and whether publicity regarding the case presents the prospect that the jurors' names could become public and expose them to intimidation or harassment. Sanchez, 74 F.3d at 564, quoting United States v. Krout, 66 F.3d 1420, 1427 (5th Cir. 1995), cert. denied, 516 U.S. 1136, 116 S. Ct. 963 (1996); United States v. Darden, 70 F.3d 1507, 1532-33 (8th Cir. 1995), cert. denied, 517 U.S. 1149, 116 S. Ct. 1449 (1996), and cert. denied, 518 U.S. 1026, 116 S. Ct. 2567 (1996); Edmond, 52 F.3d at 1091; Ross, 33 F.3d at 1520.
We do not believe that the circumstances in this case warranted an anonymous jury. Although the case did involve elements of organized crime, "something more" than the organized-crime label is required in order to justify juror anonymity. As we explained in Crockett:
"[S]omething more" can be a demonstrable history or likelihood of obstruction of justice on the part of the defendant or others acting on his behalf or a showing that trial evidence will depict a pattern of violence by the defendant[ ] and his associates such as would cause a juror to reasonably fear for his own safety. 979 F.2d at 1216, quoting United States v. Vario, 943 F.2d 236, 241 (2nd Cir. 1991), cert. denied, 502 U.S. 1036, 112 S. Ct. 882 (1992).
In this case, the district court made no finding that the defendants had a history of intimidating witnesses or otherwise obstructing justice or that they were likely to do so in connection with this trial. Cf. DiDomenico, 78 F.3d at 301-02 (defendants were connected to organized crime syndicate that had history of bribery and intimidation); Edmond, 52 F.3d at 1091-92 (one of defendants in narcotics conspiracy prosecution was also charged with murder, other defendants were implicated in that murder as well, and there was some evidence of planned and attempted witness intimidation); Crockett, 979 F.2d at 1216 (evidence indicated that one potential witness had been murdered and that attempts had been made to influence or intimidate other witnesses). True, the defendants may have had the ability to intimidate jurors through associates who were not incarcerated, but that is true of many defendants. What demonstrates the need for jury protection is not simply the means of intimidation, but some evidence indicating that intimidation is likely. See, e.g., Darden, 70 F.3d at 1532-33; Ross, 33 F.3d at 1520-21; Vario, 943 F.2d at 240, 241. No such evidence is present here. Nor is there evidence that the defendants had engaged in a pattern of violence unusual enough to cause jurors to fear for their safety. Compare, e.g., Amuso, 21 F.3d at 1264-65 (indictment alleged that defendant was responsible for crimes of extreme violence, including murders of government witnesses). Although the narcotics conspiracy in this case embraced a large-scale, gang-related operation with ready access to firearms, this is regrettably not uncommon in the drug trade. See, e.g., United States v. Jones, 214 F.3d 836, 838 (7th Cir. 2000) ("guns are common in the drug trade"). The government has pointed to no evidence of violence of such a degree as to make this case unusual. The publicity ...