We affirmed nevertheless the conviction of another defendant against whom the Government had a stronger case and who had introduced certain gang evidence in his own defense.We revisited the issue of gang evidence in United States v. McMahan , 495 F.3d 410 (7th Cir. 2007), judgment vacated in part on other grounds sub nom. Smith v. United States , 552 U.S. 1091, 128 S.Ct. 917, 169 L.Ed.2d 719 (2008). In McMahan , "[t]wo law enforcement officers were asked what sort of work they did"; the first replied that "he primarily investigated violent street gangs," and the second that he was "a gang crime specialist" who "participated in gang and narcotics investigations."
Because Gomez did not object to this testimony, our review is for plain error only. SeeUnited States v. McMahan , 495 F.3d 410, 418 (7th Cir. 2007), vacated in part on other grounds sub nom. United States v. Smith , 552 U.S. 1091, 128 S.Ct. 917, 169 L.Ed.2d 719 (2008). To prevail under this standard, Gomez "must show (1) error, (2) that is plain, (3) that ‘affects substantial rights,’ and (4) that ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ "
And both of Mitchell's arguments regarding the diminished precedential weight of Renter fail for the same basic reason: we have since relied on Renter in three published opinions. United States v. Pira, 535 F.3d 724, 728 (7th Cir. 2008); United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007); United States v. McMahan, 495 F.3d 410, 424 (7th Cir. 2007) (vacated on other grounds by Smith v. United States, 552 U.S. 1091, 128 S.Ct. 917, 169 L.Ed.2d 719 (2008)). Neither Pira nor McMahan involved evidence that would necessarily have met a clear and convincing evidence standard.
In two cases in which the defense did not object, by contrast, we concluded that the introduction of hearsay was not plain error, because the evidence eventually came in properly, by live testimony and the recordings themselves. See United States v.McMahan, 495 F.3d 410, 416-18 (7th Cir. 2007), vacated on other grounds under the name Smith v. United States, 552 U.S. 1091, 128 S.Ct. 917, 169 L.Ed.2d 719 (2008); United States v. Noel, 581 F.3d 490, 496-99 (7th Cir. 2009). McGee's trial occurred 22 months after our opinion in Cunningham.
See United States v. McMahan, 495 F.3d 410, 416-19 (7th Cir. 2007), vacated on other grounds sub nom. Smith v. United States, ___U.S.___, 128 S.Ct. 917, 169 L.Ed.2d 719 (2008). That is so because of the overwhelming evidence of Blake's guilt: testimony by three participants in the drug deals, video and audio recordings made by two participants in the drug deals and by agents watching the deals, recordings of relevant phone calls, and more.
The Supreme Court has granted DeShun Smith's petition for a writ of certiorari, vacated the judgment, and remanded his case to us for further consideration in light of Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Smith v. United States, ___ U.S. ___, 128 S.Ct. 917, 169 L.Ed.2d 719 (2008). Along with several other defendants, DeShun Smith was convicted of conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846, and of distribution of narcotics, in violation of 21 U.S.C. § 843(b).
It was merely used to describe the name of the task force - Gang Response Investigative Team or GRIT- that some of the officers worked for, and nothing more. See United States v. McMahon, 495 F.3d 410, 422 (7th Cir. 2007), vacated in part by Smith v. United States, 552 U.S. 1091 (2008) (finding it not prejudicial where “the officers said they did gang investigations; they did not say that is all they did” and did not say the defendants were members of a gang, or give damaging testimony about gang membership).
See United States v. McMahan, 495 F.3d 410, 416 (7th Cir. 2007), cert. granted in part, judgment vacated in part sub nom. Smith v. United States, 552 U.S. 1091 (2008). Since that time, Mr. McMahan has moved three times for a reduced sentence.
Additionally, Span argues that counsel should have objected to the case agent's statement that certain taped conversations were criminal in nature as this was a legal conclusion related to the legality of the wiretap. The Seventh Circuit has held that evidence regarding steps taken to secure a wiretap has "the effect of improperly bolstering the credibility of the government's case in the eyes of the jury," United States v. McMahan, 495 F.3d 410, 417 (quoting United States v. Cunningham, 462 F.3d 708, 710 (7th Cir. 2006)), vacated on other grounds by Smith v. United States, 552 U.S. 1091, 128 S. Ct. 917, 169 L. Ed. 2d 719 (2008). Thus, an objection may have been proper.