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United States v. Francies

United States District Court, N.D. Illinois, Eastern Division

August 28, 2019

UNITED STATES OF AMERICA,
v.
TYRONE FRANCIES, BAXTER STREETS, and GERALD MEACHUM

          ORDER

          CHARLES RONALD NORGLE, JUDGE.

         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")-were 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 FBI-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 18 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 18 U.S.C. § 924(c) (Counts 6 and 7).

         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 924(c) conviction must be based on the conviction of some other qualifying 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 924(c) counts. On June 9, 1998, the Court sentenced Francies to concurrent terms of 108 months on Counts 1, 3, 4 and 5; a consecutive term of 60 months on the § 924(c) charge in Count 6; and a consecutive term of 240 months on the § 924(c) charge in Count 7. On June 11, 1998, the Court sentenced Streets to concurrent terms of 108 months on Counts 1, 3, 4 and 5; a consecutive term of 60 months on the § 924(c) charge in Count 6; and a consecutive term of 240 months on the § 924(c) charge in Count 7. On June 9, 1998, the Court sentenced Meachum to concurrent terms of 188 months' imprisonment on Counts 1, 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. § 2255. Petitioners argue that because the residual clause in Section 924(c) has been invalidated by the Supreme Court's recent ruling in United States v. Davis, 139 S.Ct. 2319 (June 24, 2019), 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 of Section 924(c) has been invalidated. Second, Petitioners argue that, even 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 6 924(c) 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 924(c) 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 error 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 $11, 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 car. Streets then searched the car and located the money. At that point, 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, "We're so f-in' smooth, ridiculous."

         After each robbery, the proceeds were split amongst the defendants (including Meeks) and the CI returned 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:

• Count 1: Beginning in or about the summer of 1996 and continuing throughout on or about March 18, 1997, while employed as Chicago Police Officers, Defendants Meachum, Francies, Streets and Meeks did conspire to commit robbery; in violation of Title 18, U.S.C. §§ 1951 and 2;
• Count 2: On or about September 28, 1996, Defendant Meeks knowingly and intentionally distributed approximately nine grams of heroin; in violation of ...

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