United States v. Irwin

149 F.3d 565 (7th Cir. 1998)

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Nature of the Case

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Facts

D and Gregory Shell were childhood friends, but they took seemingly divergent paths: D became a Chicago police officer, and Shell became the second-in-command of a gang that controlled much of Chicago's street-level drug trade. They formed a romantic relationship as adults. In the late 1960s when Larry Hoover and David Barksdale merged their gangs to form the Black Gangster Disciple Nation, which name was later shortened to Gangster Disciples. Barksdale's reign ended when he was killed soon after the gangs merged. In 1973 Hoover was convicted for ordering a double murder and has been incarcerated ever since, but astonishingly he continued to rule the Gangster Disciples from prison. Under Hoover's leadership, the gang rose to prominence, controlling a large part of the street-level drug trafficking in the Chicago area. At its height in the early 1990s, the gang's drug sales brought in about $100 million per year. In 1990, Hoover appointed Shell to second-in-command, charged with controlling the gang's activities on the outside while Hoover was in prison. About the same time Shell and D, who had been a Chicago police officer since 1987, began living together. The gang had anywhere from 6,000 to 30,000 members selling drugs. Hoover knew that his phone calls in prison could be monitored, so whenever a Director began to discuss business matters on the phone, Hoover cut him off and told him to come to the prison to see Hoover in person. It was a six-hour drive from Chicago. But the Directors regularly made this trip, and Hoover had a stream of visitors. P got a court order permitting it to place a transmitter in the visitor badge given to gang leaders who came to see Hoover. The government was thus able to monitor the conversations of the gang's inner leadership for six weeks until the transmitter was discovered. Shell told Hoover of a plan to buy a restaurant, called June's Shrimp for $ 15,000. Hoover thought this was a good idea. Shell planned to turn the restaurant over to his mother, who was an experienced food service provider. Shell told Hoover that D would do the books for the business and use her status as a police officer to obtain a few guns to keep at the restaurant. It appears Shell planned to have this restaurant operate as a legitimate business, though one initially purchased with drug proceeds. D, not Shell, purchased the restaurant. The purchase price was $13,500, with $8,000 due at the closing. D signed the contract as buyer and signed the promissory note covering the remaining $5,500. She paid the initial $8,000 with a check drawn on her account. P had no direct evidence of that D was a shill for Shell. P recorded phone calls in which D ordered food from suppliers and took orders from customers. Shell also worked in the restaurant. Shell and others often used the restaurant's phone to talk with co-conspirators. A federal grand jury handed down indictments. D was named in one of the indictments with nine co-defendants. D was charged with conspiracy in violation of 21 U.S.C. § 846. The substantive offense was possession with the intent to distribute cocaine, crack cocaine, heroin, and marijuana. P made no effort to show that D had joined the conspiracy, arguing instead that she had aided and abetted it. The jury found D guilty. D appealed. D argues that one cannot be liable for aiding and abetting a conspiracy where one has given aid to conspirators after the conspiratorial agreement is complete and that there was insufficient evidence.