In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BOBBY SUGGS, SEANTAI SUGGS, AARON M. DAVIS,
BOBBY DAVIS, and BENJAMIN JOHNSON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 01 CR 98—James T. Moody, Judge.
____________
ARGUED FEBRUARY 23, 2004—DECIDED JULY 2, 2004
____________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. On July 20, 2001, a federal
grand jury returned a thirty-three count superceding in-
dictment against eighteen defendants, including all five of
the Appellants in this consolidated appeal. Three of the
Appellants—Bobby Suggs, Seantai Suggs, and Aaron
Davis—were convicted by a jury of conspiracy to possess
with intent to distribute more than fifty grams of cocaine
base (“crack”) in violation of 21 U.S.C. § 846, along with a
variety of other drug charges pursuant to 21 U.S.C. §§ 841
2 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
and 843. These Defendants seek reversal of their convic-
tions on the grounds that the district court admitted un-
fairly prejudicial evidence, such as photographs of Bobby
Suggs’s and Seantai Suggs’s tattoos and Aaron Davis’s gold
front tooth, offered to show that they were affiliated with a
street gang. Seantai Suggs and Aaron Davis also challenge
the sufficiency of the evidence presented by the government
on the conspiracy count. For the reasons stated herein, we
affirm the convictions of Bobby Suggs, Seantai Suggs, and
Aaron Davis.
Benjamin Johnson and Bobby Davis each pled guilty
to one count of distributing cocaine base in violation of 21
U.S.C. § 841(a)(1). Both men waived the right to appeal in
their respective plea agreements, but now seek to withdraw
their guilty pleas. We uphold the appeal waivers and
sentences of Johnson and Bobby Davis.
I. History
A. The Trial
At the trial of Bobby Suggs, Seantai Suggs, and Aaron
Davis, the government sought to prove that the three men
were involved in a criminal conspiracy to distribute crack in
the Concord neighborhood of Gary, Indiana. The conspiracy
began in 1994 and ended in 2001; individuals, including the
three Defendants, participated at various times and to
varying degrees during the course of the conspiracy. The
drug trafficking occurred at a government housing complex,
just west of Burr Street and south of 15th Avenue (known
as “the hill” or “the hole”) and on 19th Place, a dead-end
street also known as Court Street. Although not involved at
the beginning, Bobby eventually led the conspiracy, obtain-
ing kilogram quantities of powder cocaine from multiple
sources. He and other co-conspirators converted the powder
into crack cocaine. Bobby then distributed the crack to
trusted associates, including his brother, Seantai, and
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 3
Aaron Davis. They, in turn, sold some crack directly to
customers and distributed the rest to other dealers, such as
Benjamin Johnson and Bobby Davis.
The government’s case was based primarily on testimony,
videotaped drug transactions, recorded phone conversa-
tions, and the presence of drug paraphernalia in Seantai’s
apartment recovered pursuant to search warrants. Testi-
mony came from members of the Gary Police Force and an
FBI-led task force focused on drug and violent crime in
northwest Indiana, confidential informants, and members
of the drug conspiracy who chose to cooperate with the
prosecution.
To help establish the conspiracy, the government also
sought to prove that the members of the drug conspiracy
were members of a street gang, known as Concord Affiliated
(or CCA), that was associated with the Vice Lords, a gang
that originated in Chicago but has branched out across the
Midwest. The Defendants denied involvement with the drug
trade and insisted that CCA was only a rap group, not a
gang.1
Several witnesses established that Bobby received large
amounts of cocaine during the course of the alleged con-
spiracy. Robert Evans, one of Bobby’s suppliers, testified
that he had supplied Bobby with multiple kilograms of
1
CCA was indeed a rap group. One of their compact discs, en-
titled “One Life 2 Live,” was entered into evidence. Furthermore,
the group has appeared on the Billboard list of top-selling albums
and has received high ratings from industry magazines. Aaron
Davis was the most prominent musician in the group. Seantai
Suggs was a guest performer and also participated in a related
rap group that was under the CCA umbrella. Bobby Suggs pro-
moted CCA in Gary and nationally. The government’s expert wit-
ness on gangs testified that he was familiar with gangs using the
proceeds of drug trafficking to start legitimate businesses, in-
cluding rap groups.
4 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
powder cocaine. He personally delivered one kilogram to
Bobby’s Concord apartment on a single occasion in 1997;
both Bobby and Seantai were present when he made the de-
livery. Other drug suppliers, Anthony Evans (Robert
Evans’s brother who succeeded Robert after Robert went to
jail) and Tomas Unzueta, confirmed that Bobby purchased
large amounts of cocaine. Unzueta sold multiple-kilogram
quantities to Anthony Evans, who purchased the drugs
from Unzueta using funds from Bobby. After a dispute
between Anthony Evans and Unzueta, Unzueta dealt
directly with Bobby. Unzueta testified that he delivered
six more kilograms of cocaine to Bobby after the Evans
brothers were no longer used as middlemen.
Bobby converted the powder cocaine to crack at several
residences in the Concord neighborhood, including Seantai’s
residence. Stacey Brookshire, a Gary drug dealer, testified
that he observed Bobby cooking approximately one-half
kilogram or more in Bobby’s apartment. He also helped
Bobby prepare nine ounces at a residence on 19th Place. A
co-conspirator, Previn Starns, testified that he saw Bobby
cooking approximately one-eighth kilogram at a co-conspira-
tor’s residence on 18th Avenue.
Other drug dealers involved in the conspiracy pled guilty
and agreed to cooperate; they linked all three trial
Defendants to the conspiracy. Michael Carter testified that
Bobby Suggs and Aaron Davis supplied him with drugs.
When Carter was arrested, Seantai Suggs told him to lie
about his involvement with the drug conspiracy and to
claim that he was merely a fan of the CCA rap group.
William Carter testified that he had received drugs from all
three men; on at least one occasion, Bobby Suggs provided
him with drugs without immediate payment. Stacey
Brookshire confirmed that Bobby, Seantai, and Aaron sold
crack.
A plethora of evidence was presented to establish that
members of the conspiracy sold crack in Concord. An FBI
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 5
informant moved into the neighborhood in February of 2000
and purchased drugs in nineteen separate transactions
from ten different drug dealers, all of which were video-
taped. Although she did not buy any drugs directly from the
three trial Defendants, she testified that the drug dealers
became much more organized when Bobby was outside
observing their conduct. Using other paid informants from
the neighborhood, the FBI also made controlled buys of
crack from Seantai and Aaron Davis. The agents searched
the informants, supplied them with money, sent them to
complete the transactions, and recovered the purchased
crack.
The FBI also recovered incriminating evidence during
searches conducted at local residences. A search of Seantai
Suggs’s apartment led to the recovery of a large glass Pyrex
beaker, a box of baking soda, a box of sandwich baggies, a
.40-caliber handgun, small quantities of crack cocaine,
United States currency, a digital scale, and a knife with
crack residue on it. DEA Special Agent Eric Lee opined at
trial that these items were consistent with the cooking and
packaging of crack. While in jail, the authorities taped
phone calls made by Seantai to Bobby and others. Seantai
told the men that the “fat rock,” a term commonly used to
refer to a large amount of crack, according to Agent Lee’s
testimony, was at “Ms. Howard’s” house. The FBI later
searched the residence of “Ms. Howard,” and they discov-
ered a drug ledger that accounts for a kilogram of drugs.
The Defendants’ own statements were also used against
them to establish their involvement in drug trafficking.
Arrested shortly after the search of his apartment, Seantai
told FBI agents that he needed a gun because of his
association with CCA and that “CCA don’t take shit from no
one.” Further, the FBI intercepted a number of Bobby’s
telephone communications. On many of the tapes, Bobby is
being informed by other members of the conspiracy of police
presence in the area. On occasion, he would issue the order
6 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
to “lay low.” Lastly, Aaron Davis was one of the performers
in the CCA rap group. The government pointed to the song,
“COKE,” in which Aaron raps about his extensive involve-
ment in the drug trade, and his appearance in a video
entitled “Live or Die in GI,” in which he states that the
subjects about which he raps are real.
As part of proving the conspiracy, the government sub-
mitted evidence of gang affiliation. After an extended period
of gang violence in Gary, Bobby brokered a peace deal with
a rival gang, the Bronx Boys. Other members of CCA,
purportedly acting on orders from Bobby, committed a
violent reprisal against a local citizen who had called the
police about drug activity in the neighborhood. Michael
Carter, one of the conspiracy’s cooperating witnesses, testi-
fied that Aaron Davis was a Vice Lord. A letter to Aaron
Davis, seized at his Indianapolis apartment, addressed
Aaron as “Lord,” a term used to refer to members of the
Vice Lords. Bobby, talking to a federal agent before the
indictment, explained that although gang affiliation was
based on neighborhood in Gary, if he were to go to jail he
would align himself with the Vice Lords. Finally, Vice Lord
literature, including oaths and a constitution, were recov-
ered from the home of Bobby’s and Seantai’s parents.
Other gang evidence consisted of expert testimony and
photographs depicting the Defendants’ physical characteris-
tics and gestures. Bobby has a tattoo on his left arm of
a cross with the word “Insane” written above the cross.
Chicago Police Sergeant Robert Grapenthien testified that
the Almighty Vice Lord Nation has broken into five fac-
tions, one of which is the Insane Vice Lords. Seantai has a
tattoo of a crescent moon and a five-point star on the left
side of his chest. Grapenthien testified that the five-point
star and the crescent are some of the identifying symbols of
the Vice Lords. Aaron Davis does not have any tattoos, but
he does have a five-point star carved into a gold cap on a
front tooth. In addition, several photographs were admitted
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 7
into evidence that depicted numerous members of the
conspiracy using hand signs and wearing jewelry that
indicates Vice Lord affiliation, according to Grapenthien.
All three men were convicted by the jury of the drug
conspiracy count and other counts. The district court
sentenced Bobby Suggs and Seantai Suggs to life in prison;
Aaron Davis received a 405-month sentence. As mentioned
previously, all three men challenge the use of evidence
linking them to the Vice Lords street gang. Seantai Suggs
and Aaron Davis challenge the sufficiency of evidence to
sustain their conspiracy convictions.
B. Plea Bargains
1. Benjamin Johnson
On June 26, 2000, Benjamin Johnson distributed crack to
a confidential informant in Gary. The controlled buy was
videotaped. Johnson was indicted along with the other
members of the alleged CCA conspiracy. After the trial and
conviction of the Suggs brothers and Aaron Davis, Johnson
decided to plead guilty to Count 7 of the superceding in-
dictment, distributing a controlled substance in violation of
21 U.S.C. § 841(a)(1).
The district court, in accordance with Federal Rule of
Criminal Procedure 11, conducted a change of plea hearing
on January 14, 2003. Johnson affirmed at this hearing that
he wished to plead guilty to Count 7. The district judge
subsequently questioned Johnson. The district judge made
all of the required Rule 11 inquiries. Importantly, Johnson
acknowledged that he understood that even though the
other counts against him would be dismissed, those counts
could still be used as relevant conduct under the United
States Sentencing Guidelines. Johnson also agreed that his
right to appeal was a very important right, but he was
nonetheless waiving it with respect to his sentence. The
8 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
district court then accepted Johnson’s guilty plea and
adjudged Johnson guilty of Count 7.
Before Johnson’s sentencing hearing, he filed a pro se
motion to withdraw his guilty plea. Even though everything
at the plea hearing indicated that his plea was voluntary,
Johnson insisted that he had been coerced into pleading
guilty by the government and that he did not understand
that he could be sentenced for relevant conduct under the
other counts of the indictment. On March 28, 2003, before
holding the sentencing hearing, the district judge consid-
ered Rule 11(d)(2)(B), under which a guilty plea may be
withdrawn for just and fair reasons, but found that it was
neither fair nor just to allow Johnson to withdraw his guilty
plea.
The district judge then conducted the sentencing hearing.
He found Johnson to have been involved with over 1.5
kilograms of crack during a span of five years and imposed
a two-level enhancement for the use of weapons. The
district court also refused to grant a reduction for accep-
tance of responsibility. Johnson’s guideline range was 292
to 365 months, but the district judge sentenced Johnson to
240 months, the maximum sentence under his count of
conviction. Johnson appealed, claiming that the district
court should have held an evidentiary hearing on his mo-
tion to withdraw his guilty plea and that the district court
should have allowed him a reduction for acceptance of
responsibility under the Guidelines.
2. Bobby Davis
On September 26, 2000, Bobby Davis distributed crack to
a confidential informant in Gary. The controlled buy was
videotaped. Johnson was indicted along with the other
members of the alleged CCA conspiracy. On May 1, 2002,
Bobby Davis pled guilty to Count 10 of the July 20, 2001
indictment, distribution of crack cocaine in violation of 21
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 9
U.S.C. § 841(a)(1). In exchange for the guilty plea, the gov-
ernment dismissed the other three counts in the indictment
pertaining to Davis.
Prior to accepting Davis’s guilty plea, the district judge,
in accordance with Federal Rule of Criminal Procedure 11,
addressed Davis personally to ensure that Davis’s plea
was knowing and voluntary. Davis affirmed at this hearing
that he wished to plead guilty to Count 10. The district
judge made all of the required Rule 11 inquiries. Like
Johnson, Davis acknowledged that he understood that even
though the other counts against him would be dismissed,
those counts could still be used as relevant conduct under
the United States Sentencing Guidelines. Davis also agreed
that his right to appeal was a very important right, but he
was nonetheless waiving the right to appeal his sentence.
The district court then accepted Davis’s guilty plea and
adjudged him guilty of Count 10.
On February 11, 2003, the district court held a sentencing
hearing. The district judge found Davis to have been
involved with over 1.5 kilograms of crack during a span of
five years and imposed a two-level enhancement for the use
of weapons. The district court also refused to grant a
reduction for acceptance of responsibility. Davis’s sentenc-
ing range was 292 months to 365 months, but the district
judge sentenced Davis to 240 months, the maximum sen-
tence under his count of conviction. Despite his waiver of
appeal, Davis seeks to appeal on the grounds that his plea
agreement was not knowing and voluntary. But his attor-
ney, proceeding under Anders v. California, 386 U.S. 738
(1967), submits that there is no non-frivolous issue for
appeal.
10 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
II. Analysis
A. The Admission of Gang Affiliation Evidence
Bobby Suggs, Seantai Suggs, and Aaron Davis make three
evidentiary claims. First, they assert that it was improper
to admit any evidence of gang affiliation because such
evidence is not directly probative of participation in the
drug distribution conspiracy, and it tends to unfairly
prejudice the jury based on a status—gang membership—
that is not itself a crime. Second, the Defendants contend
that particular exhibits entered into evidence—photographs
of Bobby and Seantai Suggs’s tattoos and Aaron Davis’s
gold tooth—were especially prejudicial and, even assuming
it is proper to admit evidence of street gang affiliation, this
particular evidence lacked probative value in linking the
trio to the Vice Lords street gang. And finally, the Defen-
dants argue that the district judge should have delivered a
limiting instruction to the jury on the use of the gang-
affiliation evidence, despite the fact that such an instruc-
tion was not requested at trial.
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 prob-
able 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 preju-
dice,” 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 evi-
dence must be excluded. Pulido, 69 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
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 11
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 proceed-
ing.’ ” United States v. Hernandez, 330 F.3d 964, 969 (7th
Cir. 2003), cert. denied 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).
1. General Evidence of Gang Affiliation
Despite its highly prejudicial nature, it is well settled in
the Seventh Circuit that “[e]vidence of gang affiliation is
admissible in cases in which it is relevant to demonstrate
the existence of a joint venture or conspiracy and a rela-
tionship among its members.” United States v. Westbrook,
125 F.3d 996, 1007 (7th Cir. 1997). “Gang affiliation is par-
ticularly relevant, and has been held admissible, in cases
where the interrelationship between people is a central
issue[,]” such as in a conspiracy case. United States v.
Thomas, 86 F.3d 647, 652 (7th Cir. 1996) (affirming district
court’s ruling allowing gang evidence because that evidence
“helped demonstrate the existence of the conspiracy and the
connections between members of the conspiracy”); see also
United States v. Sargent, 98 F.3d 325, 328 (7th Cir. 1996)
(“[G]ang membership can be key to establishing criminal
intent or agreement to conspire.”).
Here, the district court correctly admitted evidence of the
Defendants’ gang affiliation “for the [limited] purpose of
demonstrating the existence of a conspiracy to distribute
illegal drugs, and the connections between members of CCA
and the conspiracy.” (Trial Tr. I, 36). The government did
not mislead the jury by improperly substituting evidence of
gang affiliation for evidence of involvement in the drug
12 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
conspiracy. Instead, the government used gang affiliation as
probative circumstantial support for their theory of the
case: that the indicted individuals had engaged in a conspir-
acy to distribute crack. Further, evidence of Vice Lords
affiliation tends to disprove the defense theory that CCA
was merely a rap group. Showing that CCA was a gang with
links to the Vice Lords was not unfairly prejudicial; the
district court was within its discretion in deciding that this
evidence was significant in showing the cohesiveness of the
drug trade in the Concord neighborhood.
2. Tattoo Evidence Used to Establish Gang
Affiliation
The specific exhibits showing Bobby and Seantai Suggs’s
tattoos and Aaron Davis’s gold tooth did not violate Federal
Rule of Evidence 403. As established above, gang member-
ship is relevant evidence in showing a drug distribution
conspiracy. Tattoos that help to establish gang membership
are admissible to support a showing of a joint venture or
conspiracy. See United States v. Lewis, 910 F.2d 1367, 1372
(7th Cir. 1990). Our cases holding tattoo evidence to have
been inappropriately admitted are factually inapposite
because they did not involve criminal conspiracies. See
United States v. Thomas, 321 F.3d 627, 630-33 (7th Cir.
2003) (vacating a conviction, in part because the admission
of a photo of a gun tattoo could only have been intended as
propensity evidence in the defendant’s conviction for
possession of firearms by a felon); United States v. Irvin, 87
F.3d 860, 864-66 (7th Cir. 1996) (balancing the low proba-
tive value of gang-membership tattoo evidence in proving
non-conspiracy drug charges and the high prejudicial value
of tattoos and motorcycle gang affiliation in finding error in
the trial court’s admission of the evidence).
Here, the trial judge was within his discretion in allowing
the jury to view these exhibits. Certainly, the presence of
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 13
tattoos or gold teeth could be used purely as an unfairly
prejudicial emotional appeal to the jury. But in the instant
case, the government presented evidence that linked drug
distribution in the Concord neighborhood to membership in
CCA, a gang with links to the Vice Lords. The jury could
consider common gang affiliation as circumstantial support
for the existence of a conspiracy (as opposed to unconnected
drug transactions). Moreover, the Defendants refused to
stipulate to the fact that they were gang members, instead
insisting they were only connected by their participation in
and promotion of a rap group. In this context, it is uncon-
vincing to argue that the government should have been
limited to only the least prejudicial evidence of gang
affiliation.
3. Limiting Instructions
Finally, with regard to the Appellants’ complaint that the
district court gave no limiting instruction to the jury on the
use of the gang-affiliation evidence, we find no error. The
Defendants did not request any limiting instruction. By not
requesting such instruction, they have forfeited the argu-
ment. See, e.g., United States v. Olano, 507 U.S. 725, 733
(1993). And the district court did not commit plain error in
deciding not to sua sponte provide a limiting instruction—it
is very possible that the Defendants’ lack of a request for
such an instruction was a tactical decision to avoid empha-
sizing gang membership. See United States v. McKinney,
954 F.2d 471, 479 (7th Cir. 1992) (“[Defendant] did not ask
for a limiting instruction at trial so he cannot now complain
about the lack of such an instruction.”).
B. The Sufficiency of the Evidence
At least for the purposes of this appeal, Seantai Suggs
and Aaron Davis do not deny that they were crack dealers.
14 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
They do deny that they were engaged in a conspiracy with
Bobby Suggs and others to distribute crack, arguing, rather,
that the government demonstrated, at most, a buyer-seller
relationship between Bobby and themselves.
The standard of review facing the Defendants on their
claim that the jury had insufficient evidence to convict is a
daunting one. See United States v. Curtis, 324 F.3d 501, 505
(7th Cir. 2003); United States v. Sanchez, 251 F.3d 598, 601
(7th Cir. 2001) (calling a sufficiency of the evidence chal-
lenge an “uphill battle”). Considering the great deference
owed to the jury’s verdict, we will view all the evidence and
draw all reasonable inferences in the light most favorable
to the prosecution 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 the conspiracy charge under 21 U.S.C. § 846
against each Defendant, the government was required to
show an agreement between two or more people to possess
and distribute the crack, and that Seantai and Aaron joined
this agreement knowingly and intentionally. See Gardner,
238 F.3d at 879. 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—explicit or implicit—among co-conspirators
to work together to commit the offense.” Id. If the prosecu-
tion succeeds in establishing a conspiratorial agreement
under the first element of the offense, it must then show
that the Defendants knew about the conspiracy and chose
to associate with the “criminal scheme.” Id. (quotations
omitted).
1. The Conspiratorial Agreement
To distinguish between a buyer-seller relationship and a
conspiratorial agreement, we look for evidence of a pro-
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 15
longed and actively pursued course of sales, coupled with
the defendants’ knowledge of and shared stake in the 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 (or “fronting”), and the quantity of drugs involved.
Sanchez, 251 F.3d at 602; Contreras, 249 F.3d at 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’ relationships had ample indicia of a
“cooperative venture” to support the jury’s verdict. A long-
term pattern of distribution developed in Concord. Only
those sanctioned by the CCA gang were able to distribute in
that area. Testimony established that Bobby Suggs ob-
tained large quantities of cocaine and, with the help of
other members of the conspiracy, converted the powder
cocaine to crack and distributed the crack to street-level
dealers. Members of the conspiracy monitored the presence
of police and engaged in violent activities to continue their
profitable business. The evidence supports the conclusion
that this was a consistent, long-term distribution conspir-
acy.
2. Seantai Suggs and Aaron Davis Joined the
Conspiracy
Ample evidence linked Seantai Suggs to this drug con-
spiracy. Seantai’s residence was used for making crack, as
evidenced by Kenneth Lewis’s testimony and the physical
evidence recovered during the FBI search of the residence.
The Suggs brothers engaged in a telephone conversation
about the location of the “fat rock” when Seantai had been
16 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
arrested. Furthermore, Stacey Brookshire testified that
Bobby gave Seantai crack for resale.
There was also sufficient evidence in the record to link
Aaron Davis to the conspiracy. He supplied numerous
dealers, including William Carter, with drugs. Kenneth
Lewis and Stacey Brookshire testified that Bobby Suggs
supplied Aaron with crack. Both Seantai and Aaron sold
crack to FBI informants in controlled buys. Both also had
links to CCA and the Vice Lords.
The close working relationship among the Suggs brothers
and Aaron Davis shows a level of mutual trust and effort
towards common goals that belies the contention that mere
buyer-seller relationships existed. Based on the abundant
evidence presented at trial, a rational trier of fact could
have found the Defendants guilty beyond a reasonable
doubt of conspiring with intent to distribute crack. We will
not disturb the jury’s verdict.
C. Plea Agreement Appeal Waivers
A defendant may waive his appeal rights as part of a plea
agreement, provided the waiver is clear and unambiguous.
United States v. Mason, 343 F.3d 893, 893-94 (7th Cir.
2003); United States v. Nave, 302 F.3d 719, 720 (7th Cir.
2002); United States v. Woolley, 123 F.3d 627, 631-32 (7th
Cir. 1997). “[T]he right to appeal is a statutory right, and
like other rights—even constitutional rights—which a
defendant may waive, it can be waived in a plea agree-
ment.” United States v. Feichtinger, 105 F.3d 1188, 1190
(7th Cir. 1997). Voluntariness of a guilty plea is ensured by
a court’s compliance with Federal Rule of Criminal Proce-
dure 11. United States v. Schuh, 289 F.3d 968, 975 (7th Cir.
2002).
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 17
1. Benjamin Johnson
On appeal, Johnson challenges the district court’s appli-
cation of the Sentencing Guidelines at the sentencing hear-
ing. He also insists that after he made a Rule 11(d)(2)(B)
motion to withdraw his guilty plea, the district court should
have held an evidentiary hearing to determine whether his
guilty plea was knowing and voluntary.
Johnson, however, waived the right to appeal his sentence
in his plea agreement. There is no indication that Johnson’s
guilty plea was anything but knowing and voluntary. The
trial judge addressed Johnson personally to ensure that his
plea was knowing and voluntary. The judge ascertained
from Johnson that he understood relevant conduct could be
used to enhance the length of his sentence and that the
maximum term of imprisonment he could face for his count
of conviction was twenty years. The trial judge also made
sure that Johnson understood he could plead not guilty and
receive all the constitutional protections of a fair trial.
Thus, Johnson cannot challenge the district court’s applica-
tion of the Sentencing Guidelines.
The government, however, appropriately concedes that
the appellate waiver does not apply to the district court’s
denial of an evidentiary hearing. After entering his guilty
plea but before the sentencing hearing, Johnson attempted
to withdraw his plea. He claimed that he had been coerced
by the government and uninformed about the consequences
of a guilty plea. The district judge, finding his Rule 11
colloquy with Johnson to be determinative of these issues,
denied the request for an evidentiary hearing.
We review the district court’s refusal to allow an eviden-
tiary hearing for an abuse of discretion. See United States
v. Winston, 34 F.3d 574, 578-79 (7th Cir. 1994). “A hearing
on a motion to withdraw a plea is to be routinely granted if
the movant offers any substantial evidence that impugns
18 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
the validity of the plea.” United States v. Redig, 27 F.3d
277, 280 (7th Cir. 1994) (quotations omitted). However, “if
no such evidence is offered, or if the allegations advanced in
support of the motion are mere conclusions or are inher-
ently unreliable, the motion may be denied without a hear-
ing.” Id. (quotation omitted). Furthermore, the defendant
“must overcome the presumption of verity that attaches to
[statements made at the Rule 11 colloquy].” Id. (quotation
omitted).
At his Rule 11 colloquy, Johnson explicitly affirmed that
he understood how relevant conduct could be used to
increase the length of his sentence. He confirmed that he
had discussed this matter with his attorney. He also
unequivocally denied that anyone—not his own lawyer, not
the government attorneys—had attempted to force him to
plead guilty. Johnson’s motion to withdraw his guilty plea
directly contradicts his statements at the change of plea
hearing; his motion lacks any proof for his allegations
besides his own self-serving assertions. See Winston, 34
F.3d at 578-79 (explaining that affidavits containing only
conclusions do not provide a basis for an evidentiary
hearing). The district judge was well within his discretion
in crediting Johnson’s Rule 11 testimony as conclusive. See
United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999).
2. Bobby Davis
Apparently unsatisfied with the result of his plea bargain
(twenty years in prison), Davis appeals and asks us to rule,
contrary to precedent, that an appeal waiver is either
constitutionally invalid or void as against public policy, or,
alternately, that his plea agreement was not knowing and
voluntary. Along with the appeal, Davis’s attorney submit-
ted a request for withdrawal as counsel under Anders v.
California, 386 U.S. 738 (1967), claiming that no non-
frivolous issue was available for appeal.
Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899 19
There is no indication that Davis’s guilty plea was
anything but knowing and voluntary. As with Johnson, the
trial judge addressed Davis personally to ensure that his
plea was knowing and voluntary. The judge’s inquiries
included ascertaining from Davis that he understood that
relevant conduct could be used to enhance the length of his
sentence, and that the maximum term of imprisonment he
could face for his count of conviction was twenty years. The
trial judge also made sure that Davis understood that he
could plead not guilty and receive all the constitutional
protections of a fair trial.
We will not accept Davis’s invitation to reevaluate our
case law. We find that Davis waived his right to appeal and
the only issues presented on appeal are frivolous.
III. Conclusion
We AFFIRM the convictions of Bobby Suggs, Seantai
Suggs, and Aaron Davis. We AFFIRM Benjamin Johnson’s
sentence. The motion to withdraw by counsel for Bobby
Davis is GRANTED, and Davis’s appeal is DISMISSED.
20 Nos. 02-3903, 03-1091, 03-1425, 03-1517 & 03-1899
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-2-04