In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-3574, 06-4038, 06-4067, 06-4171 & 07-2086

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DERRICK WHITE, MELVIN HERBERT, JAMES STEWART,

COREY EVANS, and MARVEL THOMPSON,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 464—Elaine E. Bucklo, Judge.

ARGUED SEPTEMBER 26, 2008—DECIDED SEPTEMBER 29, 2009

No. 09-1285

MARVEL THOMPSON,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.
2 Nos. 06-3574, 06-4038, 06-4067, et al.

 After examining the briefs and the record, we have concluded 

that oral argument in No. 09-1285 is unnecessary. That appeal—involving Thompson’s challenge to the district court’s

order denying his motion under Rule 41(g) of the Federal Rules

of Criminal Procedure—is consolidated with Thompson’s merits

appeal and submitted on the briefs and the record. See FED. R.

APP. P. 34(a)(2).

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 1294—Elaine E. Bucklo, Judge.

SUBMITTED APRIL 28, 2009 —DECIDED SEPTEMBER 29, 2009 

Before RIPPLE, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. The five defendants in these consolidated appeals participated in a long-running conspiracy involving the distribution of vast amounts of

cocaine, heroin, and marijuana by the Black Disciples

street gang in Chicago. Derrick White was convicted

following a jury trial, and on appeal he challenges

various aspects of his trial. The other four defendants—Melvin Herbert, James Stewart, Corey Evans, and

Marvel Thompson—pleaded guilty, and they each (with

the exception of Evans, whose attorney has filed an

Anders brief) challenge their sentences. We conclude

that Stewart is entitled to a remand for resentencing in
Nos. 06-3574, 06-4038, 06-4067, et al. 3

light of Kimbrough v. United States, 128 S. Ct. 558 (2007). As

to the other defendants, we affirm.

We delayed issuing our decision in these appeals

because while they were pending, Thompson filed a

motion under Rule 41(g) of the Federal Rules of Criminal

Procedure asking the district court to order the government to return more than $300,000 in property it seized

when it raided Thompson’s residence and business.

The district judge denied the motion without prejudice,

indicating that after Thompson’s merits appeal was

decided, she would “promptly decide” a renewed motion.

Thompson appealed this order, claiming that the

district court should not have denied his Rule 41(g)

motion and asking us to order that it be reassigned to a

new judge on remand. We dismiss this appeal for lack

of jurisdiction because the district court’s order was not

final. To the extent Thompson seeks reassignment of his

Rule 41(g) motion to another judge, we construe his

appeal as a petition for mandamus and deny it.

I. Background

The Black Disciples street gang operated a massive drugtrafficking organization in Chicago between 1989 and

2004. One of the largest gangs in the city, the Black Disciples financed most of their activities by selling enormous

quantities of cocaine, heroin, and marijuana in housing

projects and elsewhere on Chicago’s South and West

Sides. The Black Disciples prevented nongang members

from selling drugs in areas the gang controlled unless those
4 Nos. 06-3574, 06-4038, 06-4067, et al.

outsiders paid “street taxes.” Money obtained from drug

sales and street taxes was laundered through real

estate, jewelry, businesses, and vehicles obtained by gang

members as part of the conspiracy. Most of the gang’s

drug-distribution activities occurred in the Englewood

neighborhood on Chicago’s South Side and publichousing projects on Chicago’s South and West Sides.

The Black Disciples embraced a rigid hierarchical

leadership structure. A “king” served as the leader of the

Black Disciples and was responsible for developing

gang policy and directing the gang’s drug-trafficking

operations. Marvel Thompson served as king of the

Black Disciples from the early 1990s until 2003, at which

point the gang shifted to a three-king leadership structure. “Board members” ranked just below the “kings” in

the Black Disciples’ hierarchy. The king assigned each

board member to a specific geographic area, and board

members oversaw the gang’s narcotics operations in

their areas of authority. Lower-ranking gang members

paid board members street taxes in exchange for the

right to sell drugs within the board member’s area of

control.

The Black Disciples protected their drug-trafficking

activities by using younger gang members to provide

security. The Black Disciples frequently posted gang

members at housing projects that served as headquarters

for the gang’s drug-dealing activities. These gang

members carried guns distributed by the gang and were

assigned to protect the Black Disciples’ activities from

interference by the police or other rival gangs. The gang
Nos. 06-3574, 06-4038, 06-4067, et al. 5

also protected its drug operation by intimidating witnesses, shooting at police officers, and collecting debts

through violent means.

As part of the gang’s narcotics-trafficking operation,

Black Disciples held frequent meetings to discuss the

gang’s drug-distribution network and fashion rules, and

to decide how to provide security for important gang

members and their drug activities. One gang rule

called “Aid and Assistance” required all Black Disciples

members to automatically and immediately assist any

other member when asked for any purpose. Another rule

called “Code of Silence” prohibited Black Disciples members from discussing gang business with nongang members. At the meetings gang members decided how to

discipline members for violations of these and other

rules. For example, if a gang member stole drugs or drug

proceeds, cooperated with law enforcement, or failed to

follow orders, he could be fined, beaten, shot, or killed.

On February 8, 2005, a grand jury sitting in the

Northern District of Illinois returned a 49-count indictment against 46 defendants stemming from their involvement in the Black Disciples’ drug-distribution network.

Count 1, the centerpiece of the indictment, accused 45 of

the defendants of conspiring to possess and distribute

more than 50 grams of crack cocaine, more than 5 kilograms of powder cocaine, and more than 1 kilogram of

heroin. Forty-five of the defendants pleaded guilty to

various charges in the indictment; the forty-sixth

defendant—Derrick White—was convicted after a jury

trial of four offenses. Given the sprawling scope of this
6 Nos. 06-3574, 06-4038, 06-4067, et al.

Thompson also argues that the district court violated the 1

Due Process Clause because it did not require the government

(continued...)

case, the number of defendants, and the variety of

issues each defendant raises on appeal, we save our

description of each defendant’s individual involvement

with the Black Disciples’ drug conspiracy for our

analysis below.

II. Analysis

A. Marvel Thompson

Marvel Thompson was the king of the Black Disciples

from the early 1990s until 2003, when the gang embraced

a three-king leadership structure that left Thompson in

charge of the gang’s South Side operation. As a king

Thompson directed the Black Disciples’ vast drug-trafficking operations and controlled other gang members’

activities. Thompson pleaded guilty to the conspiracy

charge in the indictment. His presentence report (“PSR”)

placed him in Criminal History Category I, and his adjusted offense level was 46 under the sentencing guidelines (the sentencing table tops out at 43); this yielded an

advisory guidelines sentence of life imprisonment. He

was sentenced to 540 months in prison.

On appeal Thompson argues that the district court

committed several errors in the application of guidelines

enhancements and that his sentence is otherwise unreasonable. He first argues that the district court erred

1
Nos. 06-3574, 06-4038, 06-4067, et al. 7

(...continued) 1

to prove beyond a reasonable doubt the sentencing facts it

relied on to increase his sentence. We have rejected this argument many times. See, e.g., United States v. Santiago, 495 F.3d

820, 824 (7th Cir. 2007).

when it applied a four-level enhancement for being an

“organizer or leader” of the conspiracy. U.S.S.G. § 3B1.1(a).

The gist of Thompson’s argument is that the government only established that he was a leader of the Black

Disciples gang, not a leader of the drug conspiracy. To the

contrary, the government presented substantial evidence

that as king of the Black Disciples, Thompson coordinated

the drug-distribution conspiracy. Thompson’s sentencing

hearing spanned two days, and nine different coconspirators testified that Thompson was the king of the

Black Disciples and was extensively involved in directing

the gang’s narcotics operation. They testified that Thompson controlled the entire Black Disciples organization,

provided drugs to gang members to sell, controlled

more than 15 drug-selling locations, made thousands of

dollars a day from drug sales, collected payments from

street-level drug dealers, laundered drug money through

real estate he owned, resolved disputes among gang

members, and disciplined Black Disciples members who

broke gang rules. The government also introduced evidence seized from Thompson’s apartment, which

included several handguns, gang literature, more than

$300,000 in small bills, and letters from other Black Disciples members who acknowledged his leadership role

and asked for money or assistance.
8 Nos. 06-3574, 06-4038, 06-4067, et al.

Against this mountain of evidence establishing his

role as a leader of the Black Disciples’ drug conspiracy,

Thompson offers two additional arguments, both weak.

First, he claims that because much of the evidence

was drawn from grand-jury proceedings, the trial of

coconspirator Derrick White, plea agreements, and plea

colloquies, he did not have the opportunity to challenge

it. But the government gave Thompson this evidence well

in advance of his sentencing hearing, and he had ample

opportunity to contest it during the two-day hearing.

Second, Thompson argues that some of the evidence is

unreliable. This argument amounts to little more than an

invitation to second-guess the district court’s factual

findings, which are clearly supported by the evidence.

The district judge presided over this 46-defendant case

for nearly three years and demonstrated intimate familiarity with the substantial evidence that overwhelmingly

identified Thompson as a leader of the drug conspiracy.

We will “not second guess the determinations made by

a judicial officer who has observed the testimony and

made careful judgments about the witness’ veracity.”

United States v. Hollins, 498 F.3d 622, 631 (7th Cir. 2007).

The district court did not clearly err in applying the fourlevel “organizer or leader” enhancement under § 3B1.1(a).

Thompson next argues that the district court clearly

erred in applying a two-level enhancement for possession

of a dangerous weapon in connection with a drug-trafficking offense. U.S.S.G. § 2D1.1(b)(1). For purposes of the

§ 2D1.1(b)(1) enhancement, a defendant “is considered to

have ‘possessed’ a firearm if coconspirators possessed

firearms in furtherance of the conspiracy and [the defen-
Nos. 06-3574, 06-4038, 06-4067, et al. 9

dant] could have reasonably foreseen the coconspirators’

possession.” United States v. Acosta, 534 F.3d 574, 588

(7th Cir. 2008).

There is ample support for the district court’s application of the dangerous-weapon enhancement. Lawenforcement officers recovered two loaded guns—along

with more than $300,000 in $10 and $20 bills—when

they searched Thompson’s apartment. One of these guns

had its serial number obliterated, which coconspirator

Varney Voker explained was a common Black Disciples

tactic to prevent the gang’s weapons from being traced.

Contrary to what Thompson suggests, the government

need not always establish the presence of drugs at the

same place where the firearm is found to support the

dangerous-weapon enhancement; such a showing is a

sufficient, but not a necessary, condition. See, e.g., United

States v. Womack, 496 F.3d 791, 798 (7th Cir. 2007).

Even without the guns recovered from his apartment,

however, application of the enhancement was justified

based on Thompson’s leadership role in the Black Disciples. In this regard, Thompson’s case is indistinguishable

from United States v. Souffront, 338 F.3d 809 (7th Cir.

2003), a case in which we affirmed the application of the

§ 2D1.1(b)(1) enhancement to a drug kingpin when

trial testimony revealed that members of the drug conspiracy carried guns and used them for disciplinary and

security purposes. Similarly here, the government introduced substantial evidence that the Black Disciples’ drug

operation relied heavily on gun-carrying gang members

to provide security and to discipline out-of-line gang
10 Nos. 06-3574, 06-4038, 06-4067, et al.

members. Additionally, the Black Disciples controlled

the housing project where coconspirator Derrick White

shot a police officer; White used a gang-provided

firearm while providing security for the drug-trafficking

organization Thompson directed. As if more were

needed, the evidence also established that Thompson

ordered one gang member killed whom he suspected of

cooperating with law enforcement and another gang

member shot for violating gang rules. The dangerousweapon enhancement was properly applied.

Thompson also challenges the district court’s application of a two-level enhancement for obstruction of justice

under U.S.S.G. § 3C1.1. An obstruction-of-justice enhancement is proper if the defendant commits perjury—that

is, if he willfully gives false testimony under oath about

a material matter. United States v. Price, 516 F.3d 597, 607

(7th Cir. 2008). A defendant can obstruct justice by lying

about relevant conduct that would enhance his sentence,

see United States v. Kroledge, 201 F.3d 900, 905 (7th Cir.

2000), and that is precisely what the district court concluded occurred in this case. During his plea colloquy,

Thompson refused to admit to the government’s assertion

that he was a king in the Black Disciples organization,

saying, “As far as the kings and all that, that’s, that’s—

I told them a thousand times, that’s not me.” The government then introduced substantial evidence establishing

Thompson’s role as a king, and the district court concluded Thompson “absolutely lied” about his role in the

Black Disciples.

Thompson raises two challenges to the application of

this enhancement: that his statement to the district
Nos. 06-3574, 06-4038, 06-4067, et al. 11

court during the plea colloquy was not a lie and that it

was not material. Regarding the first of these claims,

Thompson contends that his statement about his role in

the Black Disciples was just his effort to explain to the

court that he only led part of the gang’s operations. He

argues that he was only trying to correct the government’s erroneous assertion that he was responsible for

the coconspirators’ activities even though he did not

control their geographic area. To the contrary, however,

Thompson’s statement denying his status as king was

in response to a lengthy description by the government of

his ascension through the Black Disciples’ ranks and its

explanation of the Black Disciples’ leadership structure.

The statement was in the form of a flat denial—“it’s not

me.” The record also reflects that Thompson repeatedly

minimized his role with the Black Disciples. We find no

fault with the district court’s finding that Thompson lied.

Nor are we convinced that Thompson’s lie was immaterial. Numerous courts have held that when a defendant

lies during a plea hearing by attempting to minimize

his role in an offense, that lie is material for purposes of

§ 3C1.1. See, e.g., United States v. Sanders, 162 F.3d 396, 402-

03 (6th Cir. 1998); United States v. Hernandez Coplin,

24 F.3d 312, 317-18 (1st Cir. 1994). And we have

specifically held that an obstruction-of-justice enhancement is warranted when the defendant minimizes his role

in a conspiracy during a sentencing hearing. See United

States v. Sharp, 436 F.3d 730, 738 (7th Cir. 2006). Sentencing

courts must consider a defendant’s role in a conspiracy

when determining whether a § 3B1.1 enhancement or a

§ 3B1.2 reduction is applicable. Thompson’s attempt to
12 Nos. 06-3574, 06-4038, 06-4067, et al.

mislead the district court about his role within the

Black Disciples “[made] it more difficult for the court to

give him the sentence that is his just [dessert].” United

States v. Sapoznik, 161 F.3d 1117, 1121 (7th Cir. 1998).

Accordingly, the district court did not clearly err in

applying the obstruction-of-justice enhancement.

Thompson next claims he is entitled to a reduction

under U.S.S.G. § 3E1.1(a) for acceptance of responsibility.

When a defendant’s offense level is properly enhanced

for obstruction of justice under § 3C1.1, he is generally

not entitled to a reduction for acceptance of responsibility

absent “exceptional circumstances.” United States v.

Davis, 442 F.3d 1003, 1009-10 (7th Cir. 2006). We have

previously affirmed the denial of a § 3E1.1(a) reduction

where the defendant minimizes his role in the offense.

United States v. Linnear, 40 F.3d 215, 222 (7th Cir. 1994).

The district court properly withheld the acceptance-ofresponsibility reduction. Thompson lied about his role as

king of the Black Disciples and disputed the degree to

which he engineered the gang’s drug-trafficking operations. Furthermore, although the evidence overwhelming

revealed that he directed a massive drug organization

for approximately 15 years, the only drug transactions

Thompson actually admitted were a 2004 purchase of

150 grams of heroin and a 2004 sale of 1 kilogram of

heroin and 28 kilograms of cocaine. Even more incredulously, Thompson initially testified that he had no idea

what his coconspirators were going to do with the drugs

he sold them on those occasions and revised his statement only after the district court expressed understandable

skepticism.
Nos. 06-3574, 06-4038, 06-4067, et al. 13

Skeletal admissions and minimization generally undermine a defendant’s argument for a § 3E1.1(a) acceptanceof-responsibility reduction; when combined with the

obstructive conduct that led to the application of a

§ 3C1.1 enhancement for obstruction of justice, Thompson’s

argument for an acceptance-of-responsibility enhancement evaporates. To the extent Thompson contends that

the government agreed to a § 3E1.1(a) reduction, he

severely distorts the record. Although the government said

it would recommend an acceptance-of-responsibility

reduction if Thompson pleaded guilty by a certain date

(and he did), prosecutors were not bound by this agreement after Thompson lied about his role in the Black

Disciples’ drug conspiracy at his change-of-plea and

sentencing hearings. Accordingly, the district court

properly denied Thompson a § 3E1.1(a) reduction for

acceptance of responsibility.

Finally, Thompson challenges his 540-month sentence

as unreasonable. He argues that the district court gave

too little weight to his lack of a criminal record, his personal characteristics, and his family responsibilities.

Thompson also believes that the district court did not

adequately explain why it imposed a 45-year sentence

on a 37-year-old with no criminal history. When a defendant presents “stock arguments that sentencing courts

see routinely,” we have said that “a sentencing court is

certainly free to reject [them] without discussion.” United

States v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2008). Moreover,

“arguments clearly without merit can, and for the sake

of judicial economy should, be passed over in silence.”

United States v. Cunningham, 429 F.3d 673, 678 (7th Cir.

2005).
14 Nos. 06-3574, 06-4038, 06-4067, et al.

Here, the district court considered, among other

things: (1) the nature and circumstances of the offense,

which the court said “could hardly be worse” because

it was “a crime against the south side” and “the kind of

crime that keeps people from having a chance”;

(2) Thompson’s role as kingpin of the Black Disciples

organization; (3) certain positive aspects of Thompson’s

character as shown by his leadership qualities, his occasional good deeds, and the fact that his children loved

him; (4) the cynical message Thompson sent to children

by appearing as a leader of a gang; (5) the need to deter

others from selling drugs and joining street gangs; and

(6) the likelihood that Thompson would return to selling

drugs upon his release from prison. After commenting

on these factors, the court rejected the recommended life

sentence, concluding that there was at least a possibility

of rehabilitation. In short, after an exhaustive two-day

sentencing hearing, the district court thoughtfully considered Thompson’s individual circumstances before

imposing a below-guidelines sentence of 540 months.

This was not an abuse of discretion.

B. Melvin Herbert

Melvin Herbert pleaded guilty to the conspiracy count

charged in the indictment, admitting that he held a leadership position in the Black Disciples’ drug-trafficking

operation. The district court found that the total amount

of drugs involved in the conspiracy included more than

1.5 kilograms of crack cocaine, 30 kilograms of heroin,

and 150 kilograms of powder cocaine. Herbert received
Nos. 06-3574, 06-4038, 06-4067, et al. 15

guidelines enhancements for possessing a weapon in

connection with a drug-trafficking offense and for being

a manager or supervisor of criminal activity, and a guidelines reduction for acceptance of responsibility. This

brought his advisory guidelines range to 360 months to

life imprisonment. The district court imposed a belowguidelines sentence of 310 months.

The sole issue Herbert raises on appeal is whether he

is entitled to a remand for resentencing under either

Kimbrough v. United States, 128 S. Ct. 558, or 18 U.S.C.

§ 3582(c). Because Herbert did not object to the

crack/powder disparity before the district court, we

review these forfeited issues for plain error. See United

States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008).

In Kimbrough the Supreme Court held that district

courts may consider the disparity between the guidelines’

treatment of crack cocaine and powder cocaine when

fashioning a defendant’s sentence. In United States v.

Taylor, 520 F.3d 746, we adopted a limited-remand procedure for forfeited Kimbrough-type arguments to permit

the district court to advise us of its inclination to impose

a different sentence in light of Kimbrough. Taylor

remands are premised on the notion that we cannot

determine from the record whether the district court

would have sentenced a defendant differently had it

been aware of its discretion to consider the guidelines’

disparate treatment of crack and powder cocaine. If the

district court tells us it would impose a different sentence,

then a Kimbrough error occurred; if the sentence would

remain the same, then no Kimbrough error occurred and

a remand for resentencing is not necessary.
16 Nos. 06-3574, 06-4038, 06-4067, et al.

Here, unlike in Taylor, we need not ask for the district

court’s view because even if the district court had ignored

the crack cocaine attributable to Herbert, his guidelines

range would remain unchanged. Based on the amount of

powder cocaine and heroin involved in this conspiracy,

Herbert’s base offense level would be the same. At the

time of Herbert’s sentencing, the 1.5 kilograms of crack

cocaine, 30 kilograms of heroin, and 150 kilograms of

powder cocaine attributed to him each resulted in a

base offense level of 38. If the district court focused exclusively on the powder cocaine and heroin it attributed

to Herbert, it would still start with a base offense level

of 38. Accordingly, any Kimbrough error that occurred in

this case was harmless.

Nor do the retroactive amendments to the crack-cocaine

guidelines require a remand in Herbert’s case. Under

18 U.S.C. § 3582(c)(2), a defendant who “has been sentenced to a term of imprisonment based on a sentencing

range that has been subsequently lowered” by the Sentencing Commission may move the district court for a

reduction in his sentence based on the lowered range. A

§ 3582(c)(2) motion is addressed to the district court in

the first instance, not to the court of appeals. In any

event, as we have noted, the powder cocaine and heroin

attributable to Herbert independently support a base

offense level of 38. After applying the appropriate enhancements and reductions, Herbert’s guidelines range

remains 360 months to life imprisonment.
Nos. 06-3574, 06-4038, 06-4067, et al. 17

C. James Stewart

James Stewart pleaded guilty to the conspiracy count

charged in the indictment and was sentenced to 292

months’ imprisonment. Stewart admitted he sold drugs

and worked security for the Black Disciples’ narcotics

operation. On appeal Stewart challenges the crack-cocaine

sentencing ratio the Supreme Court declared advisory in

Kimbrough. Unlike Herbert, Stewart preserved this argument in the district court, so our review is plenary, for

abuse of discretion. See United States v. Clanton, 538

F.3d 652, 659 (7th Cir. 2008). We have said that a district

court abuses its discretion under Kimbrough when it

treats the crack/powder disparity as mandatory. Id. The

district court did so here.

Because a Kimbrough error occurred, the government

must show that the error was harmless. The government

concedes it cannot meet this burden, and we agree. Stewart’s PSR attributed 1.5 kilograms of crack cocaine to

him. However, neither the plea agreement, the PSR, nor

the district court calculated the specific quantity of

powder cocaine or heroin attributable to him. Unlike in

Herbert’s case, we therefore cannot determine whether

Stewart’s advisory guidelines range would remain the

same even if the district court ignored the amount of

crack cocaine for which it found him responsible. Accordingly, we vacate Stewart’s sentence and remand to the

district court for resentencing in light of Kimbrough.
18 Nos. 06-3574, 06-4038, 06-4067, et al.

D. Derrick White

Derrick White was the only defendant charged in the

indictment who exercised his right to a jury trial. He

was convicted of four counts: (1) the conspiracy charge;

(2) shooting and attempting to murder a Chicago police

officer for the purpose of maintaining and increasing

his position in an enterprise engaged in racketeering

activity; (3) carrying and using a gun during a violent

crime; and (4) possession of a firearm by a felon. The

district court sentenced White to 372 months’ imprisonment, and he does not challenge his sentence.

White served as a soldier in the Black Disciples’ narcotics

enterprise, in which capacity he acted as a lookout at the

gang’s drug-dealing locations to warn about possible

interference by the police or rival gang members. In 2001

White was working security at one of the high-rise

housing projects the Black Disciples used as a drugdistribution site. On the night of May 8, 2001, undercover

officers from the Chicago Police Department approached

the building where White was stationed to conduct a

“reverse sting,” meaning they would arrest drug dealers

when they arrived, then pose as the dealers and arrest

anyone who tried to purchase narcotics from them.

Dressed as a construction worker, Officer Deon Hughes

drove a U-Haul truck toward the building and got out of

the vehicle. As he did so, White approached, frisked him,

felt Hughes’s bulletproof vest, and yelled, “5-0” (gang

code for the police). Hughes then identified himself as

a police officer, and White reached into his waistband for

a gun. Hughes punched White in the face and tried to
Nos. 06-3574, 06-4038, 06-4067, et al. 19

run to the front of the U-Haul for cover, but White got

off three shots. Two of the bullets hit Hughes, one in

his lower back and one in his spine. Had Hughes not

worn a bulletproof vest, the shot to his spine would

have killed him. White fled the scene, but based on a

description Hughes provided other officers as he lay

injured, police later apprehended him.

White first argues that prosecutors impermissibly used

a peremptory challenge to strike an African-American

juror on the basis of her race contrary to Batson v. Kentucky,

476 U.S. 79 (1986). During jury selection, the district court

informed potential jurors that the trial might last a week

and a half and asked whether this schedule posed problems for any of them. Two women raised their hands and

said they had child-care difficulties. Marcy DeVries, a

white woman, said she had three children and she

might have trouble finding someone to care for her children for an extended period of time. Vicki Jackson, an

African-American woman, said she had nine children

and that two were “sickly” so she needed to be available

in case they had to go to the doctor. Jackson acknowledged, however, that her mother could take care of her

children if necessary. When the district court entertained

challenges for cause, White’s attorney asked that DeVries

be struck for cause because of her child-care problem.

Noting that both Jackson and DeVries had child-care

issues, the prosecutor responded that they should either

both be retained or both be dismissed for cause.

The district court ultimately concluded that Jackson

and DeVries should not be dismissed for cause. The
20 Nos. 06-3574, 06-4038, 06-4067, et al.

The government’s dismissal of the other two African-Ameri- 2

cans is not at issue in this case.

resulting jury pool at this stage included five AfricanAmericans. Exercising peremptory challenges, prosecutors

struck five whites (including DeVries) and three AfricanAmericans (including Jackson). The resulting jury in- 2

cluded one African-American as a regular juror (Juanita

Bradley) and one African-American as an alternate

juror (Tammi Sherina Pierre-Pierre).

White’s counsel then raised a Batson challenge to the

government’s use of a peremptory challenge against

Jackson. The prosecutor responded that he struck both

DeVries and Jackson because of child-care concerns. The

government also proposed that the court promote alternative juror Pierre-Pierre to the regular jury so that

there would be two African-Americans on the jury

rather than one. White agreed to this suggestion. In light

of the government’s willingness to substitute an AfricanAmerican alternate for a white juror, the district court

concluded no Batson violation occurred. Following trial,

the district court briefly revisited the Batson issue and

reaffirmed its early decision.

On appeal, the government initially argues that White

waived his Batson challenge. Because White’s attorney

agreed to the suggestion that alternate juror PierrePierre be promoted to the regular jury, the government

argues that White’s attorney made a strategic waiver of

White’s Batson challenge. See United States v. Jaimes-Jaimes,

406 F.3d 845, 848 (7th Cir. 2005) (“There may be sound
Nos. 06-3574, 06-4038, 06-4067, et al. 21

strategic reasons why a criminal defendant will elect to

pursue one . . . argument while also choosing to forego

another, and when the defendant selects as a matter of

strategy, he also waives those arguments he decided not

to present.”); see also United States v. Wesley, 422 F.3d 509,

520-21 (7th Cir. 2005) (finding waiver occurred when a

defense attorney agreed with the judge’s proposed

remedy to correct an allegation of juror bias).

We disagree. Both before and after the seating of the

alternate juror, White’s attorney said that he objected to

the dismissal of Jackson. Although White’s attorney

agreed to the government’s proposal regarding the alternate, there is no indication this was a knowing and intentional decision to set aside White’s Batson challenge.

We have said that “[w]aiver principles should be

construed liberally in favor of the defendant.” JaimesJaimes, 406 F.3d at 848. White’s acceptance of the government’s proposal to substitute the African-American

alternate for a white juror did not amount to a waiver

of his Batson challenge.

Though not waived, the Batson challenge was

properly rejected. Under Batson when the government

offers a race-neutral reason for dismissing a juror, the

defendant must establish that proffered reasons are

pretext for a discriminatory strike. See United States v.

Hendrix, 509 F.3d 362, 370 (7th Cir. 2007). Although the

defendant is usually required to establish a prima facie

case that the government excluded a juror because of

her race, when the district court rules on whether the

government’s race-neutral justification was pretextual,
22 Nos. 06-3574, 06-4038, 06-4067, et al.

as it did here, we treat the prima facie requirement as

moot. See United States v. White, 416 F.3d 634, 640 (7th Cir.

2005). We review the district court’s findings for clear

error. United States v. Taylor, 509 F.3d 839, 843 (7th Cir.

2007).

We first note that prosecutors advanced a race-neutral

reason for dismissing Jackson: her child-care concerns.

Race-neutral reasons can include a concern that certain

jurors “would not be able to give their full attention to

a week-long trial.” United States v. Williams, 934 F.2d 847,

849 (7th Cir. 1991). A juror who worries that her

children are not adequately being cared for may not be

able to give her full attention to a trial that lasts for

more than a few days. This is a plausible race-neutral

concern even if the juror can arrange for others to take

care of her children; here, Jackson raised an issue about

the unique medical needs of two of her children.

Because the government advanced a race-neutral justification, Batson’s burden-shifting approach proceeds to

the determination of whether the asserted race-neutral

reason was simply pretext for an impermissible racial

motive. During a Batson pretext inquiry, the court looks

to “whether a strike was racially motivated” and

examines the “honesty—not the accuracy—of a proffered

race-neutral explanation.” Lamon v. Boatwright, 467

F.3d 1097, 1101 (7th Cir. 2006); see also United States v.

George, 363 F.3d 666, 674 (7th Cir. 2004) (explaining that

under Batson, “the government’s proffered reason for

the strike need not be particularly persuasive, or even

based on quantifiable data, so long as it is not pretextual”).
Nos. 06-3574, 06-4038, 06-4067, et al. 23

White argues that the government’s decision to defend

its use of a peremptory strike against Jackson on the

same grounds—child-care concerns—that it opposed her

for-cause dismissal suggests that the government acted

with an impermissible racial motive. But the government opposed the for-cause dismissal of both DeVries

and Jackson on these grounds, arguing that they should

either both remain in the jury pool or both be removed.

The court kept them both in the pool, and prosecutors

then used two peremptory challenges to remove them

both. At all stages of the jury-selection process, then, the

prosecution treated Jackson and DeVries equally based

on their expressed concerns about their child-care obligations. This is the converse of the situation the Supreme

Court found problematic in Miller-El v. Dretke, where

“a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar

nonblack who is permitted to serve.” 545 U.S. 231, 241

(2005). Prosecutors here struck both jurors who raised

child-care issues—one white and one African-American—based on a concern that their attention might be

diverted from their responsibilities as jurors.

Other factors confirm the prosecutors’ nondiscriminatory

intent. We have previously noted that prosecutors

likely harbor no discriminatory intent when minority

jurors are empaneled even though prosecutors still had

peremptory challenges remaining. See United States v.

Nichols, 937 F.2d 1257, 1264 (7th Cir. 1991). Although the

prosecutors used all of their peremptory challenges here,

the resulting jury had one African-American, and the

government proposed substituting an African-American
24 Nos. 06-3574, 06-4038, 06-4067, et al.

alternate for a white juror to increase the presence of

minorities on the jury. Under these circumstances, the

district court did not clearly err in rejecting White’s

claim of pretext under Batson. See also United States v.

Griffin, 194 F.3d 808, 826 (7th Cir. 1999) (declaring that

when the government advances a race-neutral justification, “we have ‘no basis for reversal on appeal unless the

reason given is completely outlandish or there is other

evidence which demonstrated its falsity’ ” (quoting Morse

v. Hanks, 172 F.3d 983, 985 (7th Cir. 1999))).

White next challenges the sufficiency of the evidence

that he was a member of the Black Disciples’ drug conspiracy or knowingly committed any acts in furtherance

of the conspiracy. On a sufficiency-of-the-evidence challenge, we view the evidence in the light most favorable

to the prosecution and will not reverse a conviction

unless “ ‘[no] rational trier of fact could have found the

essential elements of the crime beyond a reasonable

doubt.’ ” United States v. Carrillo, 435 F.3d 767, 775 (7th Cir.

2006) (quoting United States v. Curtis, 324 F.3d 501, 505

(7th Cir. 2003) (alteration in original)). White does not

challenge the evidence that he shot Officer Hughes;

rather, he claims that the evidence was insufficient to

connect him to the drug-trafficking conspiracy.

To the contrary, the evidence of White’s knowing

participation in the conspiracy—and the connection

between the conspiracy and the shooting—was overwhelming. White admitted in his postarrest statements

to police that he was providing security for the Black

Disciples’ drug activities on the night of the shooting.
Nos. 06-3574, 06-4038, 06-4067, et al. 25

He told Officer Sheppard, who arrested him, that he was

“security,” which Sheppard testified generally meant

that White was protecting the gang’s drug-trafficking

operations. In addition, after White was Mirandized, he

told police he was “working security for the Black

Disciple dope operation that evening” but that he

didn’t know the “names of the people that were out

there dealing drugs, any of the Black Disciples.” A

coconspirator need not know everyone involved in a

conspiracy to be a member of it. United States v. Duran,

407 F.3d 828, 835-36 (7th Cir. 2005). That White disclaimed knowledge of the names of the coconspirators at

the scene on the night of the shooting is irrelevant. His

own statements undermine his sufficiency-of-theevidence argument.

And there was much more than White’s own statements. Two police officers and one Black Disciples

member testified that the housing project where White

shot Officer Hughes was known to be controlled by

Black Disciples gang members, who distributed drugs

there under cover of “security” provided by the gang.

Officer Hughes testified that White frisked him when

he got out of the U-Haul, shouted “5-0” (meaning “police”)

after discovering his bulletproof vest, and fired on him

when Hughes announced himself as a police officer.

Other witnesses testified that White’s behavior in this

regard was consistent with the security practices of a

Black Disciples gang member. Finally, there was

evidence that the guns used by Black Disciples members

working “security” for the gang’s drug-distribution

network were provided by the gang and often had
26 Nos. 06-3574, 06-4038, 06-4067, et al.

their serial numbers obliterated; White used such a

firearm to shoot Hughes. This evidence amply supports

the jury’s verdict on the conspiracy count.

White also challenges the sufficiency of the evidence

on his racketeering conviction. Specifically, White claims

the government failed to prove the Black Disciples were

engaged in interstate commerce or that the gang’s

activities affected interstate commerce. We have said

that to prove the interstate-commerce element of a racketeering offense, the government need only show

“[a] minor or minimal influence on interstate commerce,”

such as a drug-dealing organization obtaining drugs

from outside the state. United States v. Farmer, 924 F.2d

647, 651 (7th Cir. 1991). Here, the government called a

Drug Enforcement Administration (“DEA”) agent to

testify that all illegal cocaine and heroin, and the

drugs seized from street-level drug dealers operating in

areas controlled by the Black Disciples, is produced

outside Illinois and imported into the state. That testimony is sufficient to establish the requisite link to interstate commerce needed to sustain White’s racketeering

conviction; the DEA agent need not specify that the

drugs seized in this case traveled in interstate commerce.

White’s final sufficiency-of-the-evidence challenge

relates to his conviction for possessing a firearm as a

convicted felon in violation of 18 U.S.C. § 922(g)(1). Like

his challenge to his racketeering conviction, White

claims that the government failed to prove that the

weapon he used to shoot Officer Hughes traveled in or

affected interstate commerce. At trial an Alcohol, Tobacco,
Nos. 06-3574, 06-4038, 06-4067, et al. 27

and Firearms (“ATF”) agent testified that the Lorcin

semiautomatic pistol White possessed and used to shoot

Officer Hughes was probably manufactured in either

Nevada or California. However, because the firearm’s

serial number was unreadable, the agent could not determine exactly where it was manufactured or when it

entered Illinois.

White tries to compare his case to United States v.

Groves, 470 F.3d 311 (7th Cir. 2006), but the comparison

is inapt. In Groves an ATF agent testified that in Indiana

there were no “major manufacturers” of shotguns—the

type of weapon the defendant in that case possessed. Id.

at 324. We reversed the conviction, holding that the

agent’s testimony was “too vague to support proof of

this element beyond a reasonable doubt” because it was

not clear what the agent meant by “major” shotgun

manufacturers and he was never asked about the likelihood that the gun was made in Indiana. Id. at 324-28.

This case is far different; the ATF agent’s testimony

here was much more specific than the agent’s testimony

in Groves. The agent testified that the markings on the

pistol were consistent with the firearm having been

manufactured in California or Nevada. We have never

required prosecutors to prove the precise state of origin

to prove the interstate-commerce element of a § 922(g)(1)

charge. The dispositive inquiry is whether the gun

crossed state lines at some point. Although the

markings on the pistol White used to shoot Hughes

do not conclusively establish the state where the pistol

was manufactured, they do establish that the pistol
28 Nos. 06-3574, 06-4038, 06-4067, et al.

was manufactured outside of Illinois. Accordingly, the

evidence is sufficient to support the jury’s verdict on

the felon-in-possession count.

Finally, White raises two evidentiary errors that he

claims warrant reversal. The first relates to testimony

given by Robert Berk, a trace-evidence expert the government called to testify about gunshot-residue evidence.

Because White had particles consistent with gunshot

residue on his hands, the government called Berk to

testify that White could only have acquired the trace

elements associated with gunshot residue by firing a

weapon. During his direct examination, Berk briefly

referred to a “hand blank” study supporting this conclusion. Later, after cross-examination revealed that

the particles associated with gunshot residue could

come from environmental conditions or some fields of

employment, Berk testified on redirect that it was

unlikely that the gunshot-residue particles on White’s

hands came from these sources.

White argues that this testimony violated Rule

16(a)(1)(G) of the Federal Rules of Criminal Procedure,

which requires pretrial disclosure of an expert witness’s

“opinions, the bases and reasons for those opinions,

and the witness’s qualifications.” However, White is

required to establish that any Rule 16 violation hampered

his opportunity to prepare a defense or that the violation

substantially influenced the jury. See United States v.

Stevens, 380 F.3d 1021, 1026 (7th Cir. 2004). He can

do neither. He had an opportunity to examine Berk

outside of the presence of the jury for more than an hour
Nos. 06-3574, 06-4038, 06-4067, et al. 29

before trial. His counsel vigorously cross-examined the

government’s expert, and the testimony he objects to

was offered in rebuttal, as a part of Berk’s redirect testimony. Moreover, White had his own expert available

on this subject whom he chose not to call. White also

makes a conclusory argument that Berk’s reference to

an FBI-authored study in the Journal of Forensic Science

violated Rules 702 and 703 of the Federal Rules of Evidence

because the studies were unreliable. There is no

support for this assertion. Accordingly, we reject

White’s claims of evidentiary error.

White next complains that the district court erroneously

refused the jury’s request for a transcript of the trial

testimony of Officer Hughes, a decision we review for

abuse of discretion. United States v. Guy, 924 F.2d 702,

708 (7th Cir. 1991). There was no abuse of discretion

here. The district court had previously rejected a jury

request to see the handwritten statement of another

witness that helped establish White’s connection to the

Black Disciples. Later during deliberations the jury

asked for a transcript of Officer Hughes’s testimony.

Again the judge declined the jury’s request and

instructed jurors to rely on their collective memory of the

evidence. This approach to jury questions of this sort is

well within the trial court’s discretion. Id.

Finally, White claims he is entitled to a new trial

based on cumulative error. See United States v. Allen,

269 F.3d 842, 847 (7th Cir. 2001). That doctrine has no

application here; we have identified no trial-court errors.

Id. (“If there are no errors or a single error, there can be

no cumulative error.”).
30 Nos. 06-3574, 06-4038, 06-4067, et al.

E. Corey Evans

Corey Evans pleaded guilty to the conspiracy count

and to one count of using a communications facility to

distribute narcotics. He admitted he served as a board

member in the Black Disciples’ narcotics operation, in

which capacity he sold drugs and oversaw the gang’s

drug-selling operation. The district court imposed a

sentence of 325 months. His attorney filed an Anders

brief, and Evans filed a response. Our review is confined

to the issues presented in those briefs.

The only potential nonfrivolous basis for appeal was

raised in a separate letter submitted by Evans’s attorney.

In it she notes that the Supreme Court decided

Kimbrough after she filed her Anders brief and therefore

Evans may argue he is entitled to a remand for

resentencing. Although Evans preserved this argument

in the district court, Evans’s circumstances are identical

to Herbert’s. The district court found Evans responsible

for more than 1.5 kilograms of crack cocaine and

30 kilograms of heroin, which supported a guidelines

range of 360 months to life. Even if the district court

ignored the crack cocaine it attributed to him, the

amount of heroin for which the court held Evans responsible results in the same base offense level of 38. After

applying the appropriate weapon and leadership enhancements and the acceptance-of-responsibility

reduction, Evans’s advisory guidelines range remains

360 months to life. As such, any Kimbrough argument

would be frivolous.
Nos. 06-3574, 06-4038, 06-4067, et al. 31

We have reviewed the other arguments Evans and

his attorney advance and conclude there are no

nonfrivolous issues for appeal. The government was not

required to prove sentencing facts beyond a reasonable

doubt; the district court properly calculated the quantity

of drugs attributable to Evans and made appropriate

credibility determinations; and the court properly

applied a dangerous-weapon enhancement to Evans’s

offense level. Also, Evans’s argument that the district

court improperly applied a four-level enhancement for

serving as a leader of the conspiracy is frivolous; the

argument was not raised in the district court, and on plainerror review Evans cannot prevail because the government introduced substantial evidence describing the

supervisory power Evans wielded in the conspiracy.

Finally, the district court imposed a reasonable sentence

after giving due consideration to the § 3553(a) factors.

Accordingly, we grant Evans’s counsel’s motion to withdraw.

F. Thompson’s Rule 41(g) Motion

When Thompson was arrested in May 2004, the government seized cash and personal property from Thompson’s residence and business. The seized property

included computer equipment, financial documents,

electronic equipment, a 2001 Ford Excursion (which is

no longer in the government’s possession), and approximately $320,000 in cash. Although the indictment

included a count seeking forfeiture of this property as

proceeds of Thompson’s drug-trafficking activities, to
32 Nos. 06-3574, 06-4038, 06-4067, et al.

The district court had jurisdiction to consider Thompson’s 3

Rule 41(g) motion while his criminal appeal was pending

because a Rule 41(g) motion initiates a new civil equitable

proceeding. United States v. Howell, 354 F.3d 693, 695 (7th

Cir. 2004).

our knowledge the government has not pursued forfeiture. Furthermore, apparently because of an oversight, no

reference to the seized property was included in the PSR;

it was not considered when the district court calculated

Thompson’s guidelines range and imposed his sentence.

While this appeal was pending, Thompson filed a pro se

motion under Rule 41(g) of the Federal Rules of Criminal

Procedure seeking the return of the property. Rule 41(g) 3

provides:

A person aggrieved . . . by the deprivation of property may move for the property’s return. . . . The court

must receive evidence on any factual issue necessary

to decide the motion. If it grants the motion, the

court must return the property to the movant, but

may impose reasonable conditions to protect access

to the property and its use in later proceedings.

Thompson argued (among other things) that he wanted

the money returned in order to settle a pending tax

dispute with the IRS and to support his wife and his

19 children.

The district court held a status hearing on the motion

and noted that because Thompson’s PSR did not include

the seized funds as assets potentially available to Thomp-
Nos. 06-3574, 06-4038, 06-4067, et al. 33

son, the true size of Thompson’s assets was not fully

known at sentencing. The court suggested that this information might have warranted a larger fine beyond the

$100,000 it imposed when it sentenced Thompson.

Because Thompson’s appeal of his sentence was pending

in this court and the district court lacked jurisdiction to

revisit Thompson’s sentence unless we vacated it, the

court decided to hold Thompson’s Rule 41(g) motion

in abeyance until we resolved Thompson’s appeal. Thompson objected, and the district court shifted course and

simply denied the motion as premature, saying that if

Thompson’s sentence was affirmed, it would “promptly

decide” a new Rule 41(g) motion.

Thompson appealed this order, challenging several

aspects of the district court’s handling of his motion. First,

he argues that the district court should have entered a

default judgment against the government. Second, he

claims the district court erred by not deciding the merits

of his Rule 41(g) motion. Third, he contends that the

district court should not have held hearings on the

Rule 41(g) motion outside of his presence. We

conclude, however, that we lack jurisdiction to consider

any of these arguments because the district court’s order

was not final under 28 U.S.C. § 1291. The district court

made it clear that the denial of Thompson’s Rule 41(g)

motion was without prejudice and he was free to refile

it; “[a] dismissal without prejudice is normally nonfinal

because the plaintiff remains free to refile his case.” Mostly

Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093,

1097 (7th Cir. 2008). While “[i]n some instances . . . a

dismissal without prejudice may effectively end the
34 Nos. 06-3574, 06-4038, 06-4067, et al.

litigation and thus constitute a final order for purposes

of appellate review,” id., this is not one of those cases. The

district judge indicated that the Rule 41(g) motion was

premature and she wanted to wait until Thompson’s

merits appeal was resolved before addressing the substance of the motion. The judge said she would “promptly

decide” a new motion after Thompson’s merits appeal

was decided. Accordingly, the court’s order was nonfinal

and we lack jurisdiction over Thompson’s appeal.

Thompson also maintains, however, that the district

judge should have recused herself based on an appearance of bias. It is somewhat unclear from the record

whether Thompson ever made this request in the

district court; Thompson’s filings suggest that he raised

the issue of bias and the court’s decision briefly

addressed the issue. In denying Thompson’s Rule 41(g)

motion as premature, the judge commented: “There is no

basis for recusal and if [Thompson’s] suggestion [of bias]

is intended as a motion, it is denied.”

A challenge to a district court’s refusal to recuse may

only be made by a petition for a writ of mandamus. Tezak

v. United States, 256 F.3d 702, 717 n.16 (7th Cir. 2001).

Although Thompson did not style his appeal as one

seeking mandamus relief, we have previously said that

an appeal of a denial of recusal should be construed as a

petition for mandamus relief. United States v. City of Chicago, 870 F.2d 1256, 1259 (7th Cir. 1989). Therefore, we

will treat Thompson’s appeal as a petition for mandamus.

Under 28 U.S.C. § 455(b)(1), a judge must recuse herself

when she “has a personal bias or prejudice concerning
Nos. 06-3574, 06-4038, 06-4067, et al. 35

a party, or personal knowledge of disputed evidentiary

facts concerning the proceeding.” As the Supreme

Court has explained, neither judicial rulings nor

opinions formed by the judge as a result of current or

prior proceedings constitute a basis for recusal “unless

they display a deep-seated favoritism or antagonism

that would make fair judgment impossible.” Liteky v.

United States, 510 U.S. 540, 555 (1994). Furthermore, “expressions of impatience, dissatisfaction, annoyance, and even anger” do not justify requiring recusal.

Id. at 555-56.

Thompson objects to some comments made by the

district judge but none indicate bias. The district judge

expressed some doubt that Thompson prepared his

relatively sophisticated briefs himself and also

remarked that his briefs were rude and impolite and “not

very nice.” These comments do not reflect impatience,

dissatisfaction, annoyance, or anger. Id. Thompson also

complains that the judge referred to him as a “kingpin,”

but this observation was entirely appropriate in light of

the evidence introduced about Thompson’s role in this

conspiracy. See United States v. Troxell, 886 F.2d 830, 834

(7th Cir. 1989) (referring to defendant as “Madame Cocaine” and calling the defendant “not a nice person” did

not support a finding of bias regarding subsequent proceedings). Thompson is not entitled to mandamus relief.

III. Conclusion

For the foregoing reasons, we VACATE James Stewart’s

sentence and REMAND to the district court for resen-
36 Nos. 06-3574, 06-4038, 06-4067, et al.

tencing in light of Kimbrough. We GRANT the motion to

withdraw filed by Corey Evans’s counsel and DISMISS

Evans’s appeal. We AFFIRM Derrick White’s conviction.

We AFFIRM Melvin Herbert’s sentence. We AFFIRM Marvel

Thompson’s sentence. We DISMISS Thompson’s appeal of

the district court’s order denying his Rule 41(g) motion

for lack of jurisdiction. To the extent that appeal constitutes a petition for mandamus, it is DENIED.

9-29-09