In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1838, 03-1849 & 03-1878
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERMAN HICKS, RADAR TYLER,
and DRIEFUS HARBIN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 98 CR 78—Rudy Lozano, Judge.
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ARGUED JANUARY 5, 2004—DECIDED MAY 21, 2004
____________
Before CUDAHY, POSNER, and KANNE, Circuit Judges.
KANNE, Circuit Judge. A jury convicted Herman Hicks,
Radar Tyler, and Driefus Harbin of, among other offenses,
conspiring to possess with intent to distribute and conspir-
ing to distribute more than fifty grams of crack cocaine in
violation of 21 U.S.C. §§ 846 and 841(a)(1). In this consoli-
dated appeal, all three defendants contest the sufficiency of
the conspiracy evidence against them and the district
court’s decision to allow various acts of violence, including
murders, into evidence as support for the government’s
conspiracy theory. Harbin also challenges his sentence, al-
2 Nos. 03-1838, 03-1849 & 03-1878
leging that the district judge erred in refusing to grant him
the two-level downward adjustment for acceptance of re-
sponsibility under U.S.S.G. § 3E1.1. We affirm in all
respects.
I. History
This is the second time the defendants have been con-
victed of a drug conspiracy charge. We overturned the first
conviction because of the government’s mid-trial use of a
peremptory challenge with respect to a particular juror. See
United States v. Harbin, 250 F.3d 532 (7th Cir. 2001). Upon
retrial, the government again sought to prove that Hicks,
Tyler, and Harbin were part of an informal gang called the
“22nd Avenue Boys,” named for the street in Gary, Indiana
where most of the members lived, gathered, and, unfortu-
nately, distributed crack to the many addicts in Gary’s
midtown area. The gang considered itself affiliated with an
organized street gang called the Vice Lords. Over objection,
evidence admitted at trial demonstrated that the 22nd
Avenue Boys engaged in violent territorial disputes with
other Gary street gangs and sometimes with each other.
The obvious inference to be drawn from such activity was
that what the 22nd Avenue Boys sought to protect was the
right to sell crack in midtown Gary.
The majority of the evidence presented against the de-
fendants during the two-week trial came from co-conspira-
tors—other 22nd Avenue Boys—who agreed to cooperate in
exchange for leniency. Included among them was the leader
of the conspiracy, Tajuan Allen. Allen and others testified
that during the period covered by the indictment, which
included the summer of 1995 to July of 1998, Allen ran
more than a dozen crack houses in succession and supplied
at least some of the crack that was sold out of them. Allen
either charged those dealing out of his houses up front for
the drugs he supplied or “fronted” the drugs, meaning he
Nos. 03-1838, 03-1849 & 03-1878 3
provided the crack without payment, expecting to be paid
once the crack was sold. If he was short on drugs or if
others obtained their own, perhaps at a better price, he let
them sell out of his houses anyway, but only with his
permission, and, at least in some instances, if the dealers
paid him a “consult,” or a fee, for access to the house and its
stream of customers. On a good day, his house would serve
100 customers or more, bringing in $2000 to $3000. To meet
customers’ needs, the houses operated twenty-four hours a
day, seven days a week, with sometimes between ten to
fifteen people dealing out of a house at one time. Generally,
not all the dealers would be present around the clock; they
would come and go throughout the day and night. The
houses were “organized up” so that the dealers took turns
serving the customers, ensuring that no one dominated the
customer flow.
Allen and others placed the defendants at particular crack
houses, although not in every one run by Allen. Numerous
witnesses testified that they either purchased crack from
the defendants or saw the defendants sell crack at those
houses. The defendants were also seen in Allen’s “chill
house,” a house away from 22nd Avenue where Allen cooked
crack, stored drugs and weapons, and where he and his
dealers could relax and get high without fear of raids by law
enforcement.
II. Analysis
A. Sufficiency of the Evidence
The defendants do not deny that they were crack dealers.
They do deny that they were engaged in a conspiracy
with Allen to distribute crack, arguing that the government
demonstrated, at most, a buyer-seller relationship between
Allen and the defendants.
The standard of review facing the defendants on their
claim that the jury had insufficient evidence to convict is a
4 Nos. 03-1838, 03-1849 & 03-1878
daunting one. See United States v. Curtis, 324 F.3d 501, 505
(7th Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 505 (2003);
United States v. Sanchez, 251 F.3d 598, 601 (7th Cir. 2001)
(calling a sufficiency of the evidence challenge an “uphill
battle”). Considering the great deference owed to the jury’s
verdict, we will view all the evidence and draw all reason-
able inferences in the light most favorable to the prosecu-
tion and uphold the verdict if “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Gardner, 238 F.3d
878, 879 (7th Cir. 2001); see also Sanchez, 251 F.3d at 601.
To prove a conspiracy under 21 U.S.C. § 846, the govern-
ment had to show that “(1) two or more people agreed to
commit an unlawful act and (2) the defendant[s] knowingly
and intentionally joined in the agreement.” Gardner, 238
F.3d at 879. In the case of a drug distribution conspiracy,
the agreement must amount to more than just the sale of
the drugs themselves. Curtis, 324 F.3d at 505. Rather, the
government needs to demonstrate “an understanding—ex-
plicit or implicit—among co-conspirators to work together
to commit the offense.” Id. If the prosecution succeeds in
establishing a conspiratorial agreement under the first
element of the offense, it must then show that the defen-
dants knew about the conspiracy and chose to associate
with the “criminal scheme.” Id.
To distinguish between a buyer-seller relationship and a
conspiratorial agreement, we look for evidence of a pro-
longed and actively pursued course of sales, coupled with
the defendants’ knowledge of and shared stake in Allen’s
illegal venture. United States v. Contreras, 249 F.3d 595,
599 (7th Cir. 2001). Factors considered in determining
whether the association at issue amounts to a conspiracy
include whether there was prolonged cooperation between
the parties, a level of mutual trust, standardized dealings,
sales on credit (“fronting”), and the quantity of drugs
involved. Sanchez, 251 F.3d at 602; Contreras, 249 F.3d at
Nos. 03-1838, 03-1849 & 03-1878 5
599. “Although none of these factors is dispositive, if enough
are present and point to a concrete, interlocking interest
beyond individual buy-sell transactions, we will not disturb
the factfinder’s inference that at some point, the buyer-
seller relationship developed into a cooperative venture.”
Contreras, 249 F.3d at 599.
The defendants’ relationship with Allen had ample indicia
of a “cooperative venture” to support the jury’s verdict. All
three defendants had extended relationships with Allen.
Both Hicks and Tyler sold crack out of Allen’s houses
beginning in 1995. Hicks sold on and off at Allen’s various
houses throughout the duration of the three-year conspir-
acy. While Tyler’s involvement with Allen tapered off
toward the end of the conspiracy, ostensibly because of
increased law enforcement focus on Allen’s enterprise, he
continued to sell for brief periods in Allen’s houses. He also
visited Allen’s last crack house the day after Dontrell
Hamilton’s murder to report that the police were looking for
Allen to question him about a homicide. Both Hicks and
Tyler were involved in various shoot-outs with rival gangs
in an apparent effort to protect the 22nd Avenue territory.
Harbin, who had no involvement in the turf warfare,
started selling out of Allen’s houses the last six months of
the conspiracy, but did so consistently up until the day of
his arrest during the raid on Allen’s final crack house. All
three defendants had access at one time or another to the
“chill house” stocked with drugs and weapons, demonstrat-
ing, along with their long affiliation with Allen, a modicum
of trust between them and Allen.
Allen established rules for selling at his houses, standar-
dizing and controlling his relationships with his dealers,
including the defendants. If they weren’t selling his crack,
the dealers had to have his permission to sell at the house
and sometimes pay a “consult” fee. The dealers had to take
turns selling to the customers who came to the doors and
windows of the house so that the profits were evenly dis-
6 Nos. 03-1838, 03-1849 & 03-1878
tributed among those present. In at least one circumstance,
when trouble arose among the dealers because of some
missing drugs, Allen was called to settle the argument. He
did so by authorizing the death of Dontrell Hamilton, the
dealer suspected of stealing. Once, when Tyler decided to
sell on the street opposite Allen’s crack house, Allen pistol-
whipped him for bleeding customers from the house and
ordered him back inside.
The evidence showed that Allen supplied all three
defendants with drugs. The government also presented
testimony that Allen fronted crack to both Tyler and Hicks
on occasion. Due to the length of the conspiracy, the number
of customers visiting the houses, the amount of money
pulled in on a daily basis, and the quantity of drugs pur-
chased by Allen from his suppliers, the jury could reason-
ably infer that the amount of drugs passing through the
conspiracy was considerable.
In sum, a finder of fact could easily conclude that the
government proved the first element of the conspiracy
offense—that a conspiratorial agreement existed. The
government also supplied ample evidence to support the
second element of the offense. Considering, at a minimum,
that the defendants all sold in multiple houses with the
requirement that they sell Allen’s crack or get his permis-
sion to supply their own, the jury could easily infer that the
defendants knew about the conspiracy and chose to join
with the “criminal scheme.”
We note that the quantum of evidence in this case far
exceeds what we determined was sufficient for finding a
conspiracy in United States v. Gardner, 238 F.3d 878 (7th
Cir. 2001). There, Gardner sold his own crack out of a crack
house five times by asking the owner, when customers came
by, whether he could “get that one.” Id. at 880. Gardner was
charged, among other offenses, with conspiracy to maintain
a crack house under 21 U.S.C. § 846. We upheld Gardner’s
Nos. 03-1838, 03-1849 & 03-1878 7
conviction, finding that he knew about the conspiracy
because he actually sold crack from the house on five
occasions and specifically asked permission to sell crack to
customers who came to the house. Id. We also determined
that, like the defendants and Allen here, Gardner and the
owner had a mutual interest—Gardner needed the crack
house to succeed so he had a place to sell his drugs, and the
owner needed Gardner’s help to ensure a steady supply of
crack to the customers. Id.
Based on the abundant evidence presented at trial, any
rational trier of fact could have found the defendants guilty
beyond a reasonable doubt of conspiring with intent to
distribute and conspiring to distribute crack. This was not
a close case, and we will not disturb the jury’s verdict.
B. Acts of Violence
The defendants next argue that the district judge abused
his discretion in allowing the government to present evi-
dence related to the murder of 22nd Avenue Boy Dontrell
Hamilton and other acts of violence committed by or against
the gang. The defendants claim that the evidence was
either irrelevant under Federal Rule of Evidence 401 or
prejudicial and cumulative under Rule 403.
Relevant evidence is that which has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.
Yet, where the probative value of relevant evidence is
“substantially outweighed by the danger of unfair prejudice”
or where presentation of relevant evidence would be
needlessly cumulative, it may be excluded. Fed. R. Evid.
403; see also United States v. Pulido, 69 F.3d 192, 201
(7th Cir. 1995). Because we have acknowledged that most
relevant evidence, by its very nature, is prejudicial, only
unfairly prejudicial evidence must be excluded. Pulido, 69
8 Nos. 03-1838, 03-1849 & 03-1878
F.3d at 201. “Evidence is unfairly prejudicial only if it will
induce the jury to decide the case on an improper basis,
commonly an emotional one, rather than on the evidence
presented.” Id. (quotations omitted).
“We give special deference to a trial judge’s evidentiary
rulings ‘because of the trial judge’s first-hand exposure to
the witnesses and the evidence as a whole, and because of
the judge’s familiarity with the case and ability to gauge the
impact of the evidence in the context of the entire pro-
ceeding.’ ” United States v. Hernandez, 330 F.3d 964, 969
(7th Cir. 2003), cert. denied, ___ U.S. ___, 124 S. Ct. 1599
(2004) (quoting United States v. Van Dreel, 155 F.3d 902,
905 (7th Cir. 1998)). Only where the district court has
clearly abused its discretion, meaning that “no reasonable
person could take the view adopted by the trial court,” will
we reverse an evidentiary ruling. Id. (quotation omitted).
The district court allowed evidence of Hamilton’s murder,
executed with Allen’s permission because he believed
Hamilton stole another dealer’s drugs, as it tended to show
Allen’s control over the crack houses and the dealers, mak-
ing the murder “inextricably intertwined” with the crack
distribution conspiracy. The government offered other acts
of gang violence to support its theory that the 22nd Avenue
Boys, of which the three defendants were members, worked
together to protect its midtown Gary drug distribution
enterprise.
Our case law supports the district judge’s conclusion that
the Hamilton murder and other violent acts were relevant
to the government’s conspiracy theory. For example, in
United States v. Thompson, we found no error in the trial
judge’s admission of several non-fatal shootings and a
kidnaping committed by drug distribution co-conspirators,
noting that “[t]his kind of evidence is intricately related to
the drug conspiracy charge because it shows how the con-
spiracy conducted its ‘business.’ ” 286 F.3d 950, 969 (7th
Nos. 03-1838, 03-1849 & 03-1878 9
Cir. 2002), cert. denied, 537 U.S. 1134 (2003) (collecting
cases); see also United States v. Neeley, 189 F.3d 670, 682
(7th Cir. 1999) (finding that admission of evidence related
to the shooting and assault of members of a drug conspiracy
was relevant to demonstrate the nature of the conspiracy).
Here, Hamilton’s murder and the other acts of violence
supported the government’s theory that Allen and the
defendants were engaged in a cooperative enterprise— not
just a buyer-seller relationship as alleged by defen-
dants—which they defended through violence and which
Allen controlled through violence.
The prejudice, if any existed, did not outweigh the pro-
bative value of the evidence under Rule 403 because the
testimony regarding Hamilton’s murder and other acts was
brief and devoid of gruesome details, primarily limited to a
recitation of who shot at whom, on which side of town, and
why. See Pulido, 69 F.3d at 202 (testimony concerning
murders “was brief and non-inflammatory in nature, re-
ducing any risk that the jury’s emotion would be stirred by
such evidence and . . . be compelled toward irrationality”);
Hernandez, 330 F.3d at 971 (brief references to gang
violence found not to have a substantial influence on the
jury’s decision); Neeley, 189 F.3d at 682 (evidence of violent
acts admissible, in part because the testimony was ex-
tremely brief in comparison to the total amount of evidence
introduced by the government). Further, defense counsel
had ample opportunity to cross-examine the witnesses and
establish that the defendants had no involvement in Hamil-
ton’s murder and certain other acts of violence.
We also find that the evidence was not cumulative, again
considering its importance to the government’s conspiracy
theory, the summary way in which the majority of the in-
cidents were related, and the comparatively small amount
of time devoted to their recitation during the two-week
trial. See, e.g., Hernandez, 330 F.3d at 971 (upholding the
10 Nos. 03-1838, 03-1849 & 03-1878
admission of gang violence evidence where it was compara-
tively slight in light of the length of trial); Neeley, 189 F.3d
at 682 (same).
C. Harbin’s Acceptance of Responsibility
After his first conviction was overturned on appeal,
Harbin entered a plea agreement with the government
rather than face retrial. The government made the agree-
ment contingent on Hicks and Tyler also entering into plea
agreements. When they refused to do so, the government
moved to withdraw Harbin’s agreement. Harbin objected,
but the court upheld the terms of the agreement and
granted the government’s motion because the Hicks/Tyler
contingency had not been met. Harbin then proceeded to
trial alongside his co-defendants Hicks and Tyler.
At sentencing, Harbin argued that he was entitled to a
two-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 because of his demonstrated intent prior
to trial to enter into a plea agreement with the government.
The district court disagreed and refused to give the re-
quested adjustment.
We review the district court’s fact-based decision not to
grant an acceptance of responsibility reduction for clear
error. United States v. Williams, 202 F.3d 959, 961 (7th Cir.
2000). “We give great deference to the district court’s
conclusion in this matter as that court is in a unique posi-
tion to assess the defendant’s motives and genuineness in
professing to accept responsibility for his crime.” Id.
The district court decided not to give Harbin the accep-
tance of responsibility adjustment because he put the gov-
ernment to its burden of proof at trial. The Sentencing
Guidelines commentary specifically supports this conclu-
sion. See U.S.S.G. § 3E1.1 cmt., n.2 (“[The acceptance of
responsibility] adjustment is not intended to apply to a
Nos. 03-1838, 03-1849 & 03-1878 11
defendant who puts the government to its burden of proof
at trial by denying the essential factual elements of
guilt . . . .”); see also Williams, 202 F.3d at 962 (“Ordinar-
ily a defendant who chooses to go to trial and force the
government to prove his guilt is not eligible to receive a
sentence reduction for acceptance of responsibility.”).
Harbin, though, alleges that at trial he sought only to chal-
lenge the amount of crack attributable to him, not his
underlying guilt of the conspiracy charge. He reasons that
under this view of his defense, his conduct at trial falls
under a Guideline exception for those who proceed to trial
solely to challenge issues other than factual guilt. See
U.S.S.G. § 3E1.1 cmt., n.2.
While we have recognized those who go to trial to chal-
lenge, for instance, the constitutionality of a statute as
eligible for the acceptance of responsibility adjustment un-
der the Guideline exception, “[i]f a defendant challenges
factual evidence of guilt as well as legal principles, however,
he typically will be ineligible to receive the acceptance of
responsibility reduction.” Williams, 202 F.3d at 962. Here,
it’s clear from the trial transcript that Harbin not only
challenged the amount of crack attributable to him, he also
challenged his involvement in the conspiracy as a whole.
See Hernandez, 330 F.3d at 984-85 (denying acceptance of
responsibility adjustment where defendant’s plea negotia-
tions on drug distribution conspiracy count fell apart before
trial and where he later denied any involvement in the
conspiracy at trial).
Further, while we do not decide whether challenging the
amount of crack attributable to him can be considered a
“legal principle,” rather than factual evidence of guilt, to the
extent Harbin wished to limit his appearance at trial to
that challenge only, he was obligated to make that known
ahead of time. That way, the government would not waste
resources preparing to prosecute him for the crimes alleged
in the indictment but could tailor its case to Harbin’s
12 Nos. 03-1838, 03-1849 & 03-1878
specific challenge. Williams, 202 F.3d at 962 (noting that
under U.S.S.G. § 3E1.1 cmt., n.2, a determination that a
defendant has accepted responsibility should be based
primarily upon pretrial statements and conduct and
refusing to grant the adjustment where the defendant failed
to notify the court either before or during trial that he
planned to only challenge the legal standard under which
he was being prosecuted). Harbin did not do so, putting the
government to its burden of proof and making him ineligi-
ble for the acceptance of responsibility adjustment.
III. Conclusion
For all of the above reasons, the determinations of the
trial court are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-21-04