In the
United States Court of Appeals
For the Seventh Circuit
Nos. 23-2434, 23-2450, 23-2479, & 23-2652
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SEAN CLEMON, DOMINQUE MAXWELL, WARREN G. GRIFFIN,
and FRANK SMITH,
Defendants-Appellants.
Appeals from the United States District Court for
the Southern District of Illinois.
No. 3:21-cr-30003-DWD — David W. Dugan, Judge.
ARGUED DECEMBER 11, 2025 — DECIDED AUGUST 4, 2026
Before RIPPLE, SCUDDER, and KIRSCH, Circuit Judges.
SCUDDER, Circuit Judge. Frank Smith, Warren Griffin,
Dominque Maxwell, and Sean Clemon received life sentences
after a jury found them guilty of multiple federal crimes, including under the federal racketeering statute. The convictions stem from acts, including murder, committed in furtherance of their roles in the Gangster Disciples. On appeal the
defendants challenge multiple aspects of their trial. One issue
2 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
gives us substantial pause. The district court admitted scores
of coconspirator statements without taking sufficient steps,
especially before trial, to ensure compliance with the requirements of Federal Rule of Evidence 801(d)(2)(E).
The government bears its share of responsibility. It opposed a pretrial measure through which it could have both
identified the coconspirator statements it intended to offer
and provided accompanying explanations of how each statement would meet the admissibility requirements of Rule
801(d)(2)(E). Santiago proffers, as we call them in our circuit,
give the defense opportunities to object before trial and enable
the district court to make informed determinations about how
best to handle a particular statement.
Rejecting the defendants’ motions, the district court required no Santiago proffer, instead choosing to conditionally
and wholesale admit the coconspirator testimony at trial. This
approach left the defendants to show error after the fact. What
resulted is a record presenting an extraordinary challenge for
everyone—foremost for the defendants, but also for the government and us as a court of review—to untangle.
In the end, having invested substantial time reviewing
what transpired at trial, we affirm. Troubled though we are
by the district court’s decision not to require a Santiago proffer, we are unable to identify any ultimate error in admitting
coconspirator statements. Along the way we offer what we
hope is helpful guidance to avoid this circumstance in future
cases of like complexity requiring applications of Rule
801(d)(2)(E).
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 3
I
A
The evidence at trial showed that the Gangster Disciples is
a nationwide criminal gang that originated in Chicago and
operates in and out of prisons. Like many sophisticated organizations, the Gangster Disciples has a governance hierarchy. The gang’s founder and chairman, Larry Hoover, despite
his lengthy incarceration, is still the recognized leader. Board
members serve under Hoover and manage the gang’s affairs.
Below the board are “governors of governors” who manage
regionally. One step further down are governors who run the
Gangster Disciples within states or other specified areas.
Leadership disputes arose about ten years ago. And, for
our purposes, an important development occurred in the
wake of board member Shauntay Craig’s indictment on federal charges in Georgia in 2016. Some Gangster Disciples remained loyal to Craig and his faction, while others aligned
with defendant Frank Smith and his cohort, which included
Anthony Dobbins and defendant Warren Griffin. These internal tensions over the gang’s governance eventually erupted
into the violence leading to the prosecution in this case.
We begin with Anthony Dobbins—a Gangster Disciple
and former defendant in this case who pleaded guilty. He
spent several years up until 2017 incarcerated with Larry
Hoover within the federal maximum security prison in Florence, Colorado. Dobbins and Hoover grew close and in time
Dobbins received a promise of a board appointment. Dobbins
also assured Warren Griffin of a seat on the board.
Dobbins and Griffin communicated often by letter and
phone, and their discussions, loads of which the jury heard
4 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
during the trial, showed that they planned to enhance their
power in the gang after Dobbins’ release from Florence Supermax—all in response to Hoover’s reported displeasure
with the direction of the Gangster Disciples in certain regions.
Griffin took action to install loyal subordinates in early
2018. After months of expressing frustration with the Gangster Disciples’ governor of Missouri, Dushawn Wharton, Griffin directed that Christopher Blount assume that role, at least
temporarily. To publicize this change, Blount planned an
event for April 28, 2018 at Matthews Park in Bridgeton, Missouri. But Wharton crashed the gathering and refused to recognize a successor. Defendants Sean Clemon and Dominque
Maxwell reacted by calling defendant Frank Smith on the
phone, who ordered them to attack Wharton. A firefight ensued that wounded Wharton and killed his associate Leroy
Allen.
Griffin’s next move was to eliminate dissent within the
Gangster Disciples. He and Dobbins had regularly expressed
discontent with older Gangster Disciples who they believed
did not support their and Hoover’s vision. One such member
was Ernest Wilson. On May 18, 2018, just one month after the
shootout in Matthews Park, Griffin and Dobbins traveled to
Chicago and murdered Wilson.
B
These two murders triggered a federal investigation that
resulted in the prosecution of seven members of the Gangster
Disciples—Frank Smith, Warren Griffin, Anthony Dobbins,
Sean Clemon, Dominque Maxwell, Perry Harris, and Barry
Boyce. The initial indictment alleged RICO violations, murder
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 5
and attempted murder in aid of racketeering, and various
firearm offenses.
Following extensive pretrial proceedings, during which
several defendants pleaded guilty, a 23-day jury trial proceeded against defendants Griffin, Smith, Clemon, and Maxwell on charges in a superseding indictment. The jury heard
testimony from law enforcement, former Gangster Disciples,
eyewitnesses, and a variety of experts, and in the end returned guilty verdicts on all counts. The district court later
sentenced each defendant to life.
As we proceed to the issues before us on appeal, it becomes important to keep track of the charges against each defendant, the conduct at issue, and the jury’s verdict. The chart
on the following page aids in that effort.
6 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
Superseding Indictment
Defendant/Appellant
Count Charge and Statute Event Warren Frank Sean Dominque
Griffin Smith Clemon Maxwell
Racketeering Conspiracy Murders, drug dealing,
1 witness tampering, Guilty Guilty Guilty Guilty
18 U.S.C. § 1962(d)
and other crimes
Murder in Aid of
2 Racketeering N/A Guilty Guilty Guilty
18 U.S.C. § 1959(a)(1) Murder of
Firearm Use During a Crime of Leroy Allen
3 Violence at Matthews Park N/A Guilty Guilty Guilty
18 U.S.C. § 924(c)(1)(A) in Missouri
Firearm Use During a Crime of April 28, 2018
4 Violence N/A Guilty Guilty Guilty
Causing Death
18 U.S.C. § 924(j)(1)
Attempted Murder in
5 Aid of Racketeering N/A Guilty Guilty Guilty
Attempted
18 U.S.C. § 1959(a)(5)
Murder of
Dushawn Wharton
at Matthews Park
Firearm Use During a Crime of in Missouri
6 Violence N/A Guilty Guilty Guilty
18 U.S.C. § 924(c)(1)(A) April 28, 2018
Counts 7-10 Dismissed
Murder in Aid of
11 Racketeering Guilty N/A N/A N/A
18 U.S.C. § 1959(a)(1)
Firearm Use During a Crime of Murder of
12 Violence Ernest Wilson Guilty N/A N/A N/A
18 U.S.C. § 924(c)(1)(A) in Chicago
Firearm Use During a Crime of May 18, 2018
Violence
13 Guilty N/A N/A N/A
Causing Death
18 U.S.C. § 924(j)(1)
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 7
II
A
Nearly six months before trial, defendant Sean Clemon
submitted a motion alerting the district court that, based on
the discovery to date, the government was sure at trial to introduce many statements from coconspirators pursuant to
Federal Rule of Evidence 801(d)(2)(E). This Rule permits the
admission of coconspirator statements that are made during
and in furtherance of a conspiracy without violating the general prohibition on hearsay. Much of the ultimate evidence
here took the form of statements within telephone calls, letters, and the like between and among members of the Gangster Disciples, including some of the defendants. Knowing the
weight jurors could afford this kind of evidence, Clemon requested an order directing the government to make a preliminary showing of its conditional admissibility by proffering
what coconspirator statements it would offer at trial. Smith
and Griffin did too.
But the government resisted, not by disputing that it intended to offer a substantial number of coconspirator statements, but instead by insisting both that the law did not compel a pretrial proffer and that the district court could handle
admissibility questions contemporaneously during trial.
The district court denied the defendants’ motions, thinking the better course was to conditionally admit the evidence.
It left it to the defendants to object at trial to any statements
they believed inadmissible under Rule 801(d)(2)(E).
And object the defendants did, over and over. During the
opening days of trial, for example, Warren Griffin objected to
the admission of Government Exhibit 3, a letter he received
8 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
from Anthony Dobbins while Dobbins was serving time in
the Florence Supermax prison with Larry Hoover. In the letter, Dobbins discussed his relationship with Hoover and appointment to the Gangster Disciples’ board while also encouraging Griffin to keep faith in the organization.
In explaining the objection, Griffin’s counsel underscored
a broader concern about the trial evidence. Counsel explained
that the defendants anticipated that Exhibit 3 was just the tip
of the iceberg, as the government was sure to introduce scores
of similar letters and recorded phone calls containing statements of coconspirators throughout trial. So too, of course,
did counsel know, likely from experience in similar cases, that
the government was certain to elicit similar statements from
its cooperating witnesses—current and former members of
the Gangster Disciples.
Counsel’s concern was both substantive and practical: not
only did the defendants want to hold the government to the
requirements of Rule 801(d)(2)(E), they also presumably
knew that the conditional admissibility of stockpiles of coconspirator statements brought with it a risk of prejudice, as it
would be hard for jurors to disregard those statements even
if the court later found them inadmissible and gave a limiting
instruction. Defense counsel must have also worried about
the risk of guilt by association—with the government relying
on statements of coconspirators to show that the defendants
were guilty of committing very serious crimes, including
murder, because they knew and worked with the declarants
as part of their common membership in the Gangster Disciples.
For its part, the government responded to Griffin’s objection by saying little more than that the statements in Exhibit 3
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 9
were admissible because Dobbins made them at a time when
he and Griffin were undeniably close associates within the
Gangster Disciples and that the communications related to
the gang.
The district court seemed to sidestep Griffin’s objection to
Exhibit 3, as well as his broader concerns, by focusing not on
the requirements of Rule 801(d)(2)(E), but instead on considerations of authenticity. As best we can tell, the district court
concentrated on whether Dobbins wrote the letter and, similarly, whether Griffin received it. Because the letter was authentic, the district court observed, “I’m not even sure it’s
hearsay.” So the court overruled the objection to Exhibit 3 and
admitted the letter without addressing the larger concern
about coconspirator statements raised by Griffin’s counsel.
By way of a second example, consider what transpired
with the admission of Government Exhibit 4, a letter from Anthony Dobbins to another Gangster Disciple named Ramone
Williams. Griffin objected, invoking the same basis as his previous objection. The government responded with only,
“801(d)(2)(E).” The district court asked, “Is it linked up then?”
and the government responded, “It will be.” The district court
overruled the objection.
Similar offers of evidence, objections, and rulings on admissibility happened numerous times throughout trial. It got
to the point where the district court was merely confirming
with the government that Rule 801(d)(2)(E) was the basis of
admissibility. And at one point, the district court rejected an
offer by Griffin’s counsel to go line by line through an exhibit
to explain why it contained inadmissible hearsay. Despite the
complexity of this case and the overwhelming number of exhibits, the district court chose to admit the evidence
10 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
contingent on the government proving all necessary factors
for admissibility at some point as the trial moved forward.
On February 7, the eighth day of trial, the district court issued an order directing the defendants to submit written objections, “specifically identifying the statement(s) for which
the Defendant claims that the Government did not meet its
burden under Rule 801(d)(2)(E)” no later than the close of the
government’s case. The order sought to position the district
court to close the loop on its pretrial conditional admissibility
ruling—to allow the court to make a final admissibility determination in light of the full trial evidence and whether it satisfied the requirements of Rule 801(d)(2)(E).
In response, the defendants who objected pretrial renewed
their objections in motions near the end of trial. The district
court announced on March 1, 2023, the day closing arguments
began, that it was overruling the Rule 801(d)(2)(E) objections
and followed up with a written order just over a week later.
It was understandably frustrated, as Frank Smith was the
only defendant whose counsel even “attempted to identify
specific statements that it claimed to be hearsay and not subject to the co-conspirator exception.” The others objected only
by challenging the admissibility of entire documents and records—an approach that likely perplexed the court given how
much pretrial emphasis defense counsel put on the need for a
detailed, statement-by-statement Santiago proffer.
The district court offered these reasons for denying the
motions. First, the court found that many of the exhibits did
not contain hearsay at all, as many statements within those
exhibits were not offered for their truth and more reflected
idle, harmless “chatter.” Second, the district court determined
that one or more expansive conspiracies existed among the
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 11
Gangster Disciples, including among the defendants. Any
statements, therefore, were admissible under Rule
801(d)(2)(E) because they were made in furtherance of a conspiracy, or, if not, under some other hearsay exception. Third,
the district court concluded, without accompanying explanation, that any erroneous admission under Rule 801(d)(2)(E)
“did not prejudice any substantial right of a Defendant.”
B
Warren Griffin, joined by other defendants, now challenges the district court’s admission of scores of exhibits,
many filled with numerous statements by coconspirators. We
begin with important legal framing.
The Federal Rules of Evidence define hearsay as an out-ofcourt statement offered for the truth of the matter asserted.
See Fed. R. Evid. 801(c). And it is generally not admissible. See
Fed. R. Evid. 802. Because hearsay statements are not subject
to cross-examination or given under oath, they can lack
reliability. See John Henry Wigmore, Wigmore on Evidence:
Evidence in Trials at Common Law § 1362 (2026 ed.) (“The
theory of the hearsay rule is that the many possible
deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested
assertion of a witness, may be best brought to light and
exposed by the test of cross-examination.”); see also Ronald J.
Allen et al., An Analytical Approach to Evidence: Text, Problems,
and Cases 447 (6th ed. 2016) (same).
But Rule 801 also tells us that some out-of-court statements are not hearsay. One category includes statements by
an opposing party, which in a criminal case is generally the
defendant if the government offers the statements. See Fed. R.
12 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
Evid. 801(d)(2)(A). Another closely related category, and the
one at issue here, covers statements made by a “coconspirator
during and in furtherance of the conspiracy.” Fed. R. Evid.
801(d)(2)(E). To admit a coconspirator’s out-of-court statements under Rule 801(d)(2)(E), the district court must find
“by a preponderance of the evidence that (1) a conspiracy existed, (2) the defendant and the declarant were involved in the
conspiracy, and (3) the statements were made during and in
furtherance of the conspiracy.” United States v. Davis, 845 F.3d
282, 286 (7th Cir. 2016).
Various rationales justify the admissibility of coconspirator statements. Perhaps the most common reason is that, by
virtue of being part of a conspiracy, coconspirators authorize,
directly or implicitly, the statements of other members of the
conspiracy. See 30B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 6777 (2026 ed.) (“Statements
are admitted because ‘each member of a conspiracy is the
agent of each of the other conspirators whenever he is acting—including speaking—to promote the conspiracy.’”
(quoting United States v. Pallais, 921 F.2d 684, 687 (7th Cir.
1990))). But, as some commentators have observed, “a more
practical rationale” underpinning Rule 801(d)(2)(E) may be
“necessity,” as conspiracies tend to be “secret enterprises” yet
“[s]ome of the best evidence—and perhaps essential evidence
if a prosecutor is to prove a defendant’s guilt beyond a reasonable doubt—will be statements about the conduct of other
co-conspirators.” Allen, An Analytical Approach to Evidence at
518. As a policy matter, then, it is “arguably appropriate to
burden a person who chooses to engage in a conspiracy or an
ongoing criminal enterprise (particularly, as an organizer or
leader) with the risk that false or inaccurate co-conspirators’
statements will be used against him or her.” Id.
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 13
Describing Rule 801(d)(2)(E) is easier than applying it. Indeed, cases where parties seek to introduce statements of coconspirators can entail substantial complexity and related
risks of uncertainty and prejudice. For at least the last 45
years, district courts have often addressed those considerations by making conditional rulings pursuant to Rule 104 on
the admissibility of coconspirator statements. We provided
this guidance in United States v. Santiago, 582 F.2d 1128, 1131
(7th Cir. 1978), overruled in part on other grounds by Bourjaily v.
United States, 483 U.S. 171 (1987). Hence, the term “Santiago
proffer.”
These proffers can take different forms. In many instances,
a district court may prefer the submission of Santiago proffers
in writing, with the proponent (often the government in a
criminal case) itemizing (often in chart or table format) the
statements of coconspirators and the reasons those statements
satisfy the foundational requirements of Rule 801(d)(2)(E).
See United States v. Rodriguez, 975 F.2d 404, 409 (7th Cir. 1992).
In other instances, a more summary form of a proffer, written
or oral, may be appropriate and sufficient. See United States v.
Alviar, 573 F.3d 526, 540 (7th Cir. 2009). In still other circumstances, and perhaps following written submissions from the
parties, a district court may order “a ‘full blown’ preliminary
hearing to consider all evidence concerning the statements.”
United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991) (citing
United States v. Andrus, 775 F.2d 825, 836–37 (7th Cir. 1985)).
On the other hand, and perhaps after receiving a written
Santiago proffer and getting a sense of the scope and content
of coconspirator statements, a district court may prefer to reserve ruling until trial. See United States v. Shoffner, 826 F.2d
619, 629 (7th Cir. 1987).
14 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
No matter what approach the district court adopts, the
watchword is diligence. Rule 801(d)(2)(E) imposes requirements, and the proponent of the statement in question bears
the burden of proving those conditions by a preponderance.
See Davis, 845 F.3d at 286. Rare should be the case when Santiago proffers do not occur pretrial. Peril abounds on that path.
C
No better example than this case. It is complex as a factual
and legal matter and replete with pretrial indications that the
government sought to introduce a substantial volume of
statements by coconspirators. The case cried out for a pretrial
assessment of coconspirator statements—a detailed and complete Santiago proffer. And remember that the defendants
asked for one, only for the district court, at the government’s
urging, to deny it.
What resulted is a record with dozens of exhibits presented to the jury and loaded with coconspirator statements
that the district court did not evaluate prior to trial and instead chose to conditionally admit in their entirety. And before us are defendants who received life sentences and who
tried to avoid this precise predicament pretrial by moving for
a Santiago proffer. They feel jammed and upended—now, after the fact, having to comb the haystack of coconspirator
statements admitted at trial to identify specific statements
that not only failed to meet the requirements of Rule
801(d)(2)(E), but also likely affected the trial outcome.
As we see it, fault lies across the board. The government
should have embraced—not resisted—the defense’s request
for a Santiago proffer. The district court should have ordered
one and positioned itself to get a more informed sense of the
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 15
forthcoming coconspirator statements and the basis for conditional admissibility or exclusion. And defense counsel
needed after trial to move beyond frustration and identify
specific coconspirator statements they believe should not
have been admitted at trial. See United States v. Adamo, 882
F.2d 1218, 1230 (7th Cir. 1989) (“[W]e refuse to comb and
search the record in search of ‘the statements’ of Adamo’s coconspirators, if any, which may arguably be inadmissible under Rule 801(d)(2)(E).”).
The defendants have fallen short in meeting their obligation. Indeed, they largely seem to resist the requirement, telling us many times over in oral argument that what transpired
in the district court was entirely unfair. While we share the
broad concern, we see no basis to determine that the district
court’s failure to require a Santiago proffer resulted in some
sort of structural error automatically warranting a new trial.
See United States v. Beasley, 163 F.4th 403, 406 (7th Cir. 2025)
(“A preserved trial error is subject to harmless error analysis
unless it is a structural error necessitating automatic reversal.”). We know of no case law supporting that view. So the
task before us is to ascertain whether, in the final analysis, the
district court committed reversible error in admitting particular statements of coconspirators. See United States v. Harris,
585 F.3d 394, 398 (7th Cir. 2009); see also United States v. Stephenson, 53 F.3d 836, 842 (7th Cir. 1995).
We do not see any error. Take, for instance, Warren Griffin’s objection to the admission of statements made by Anthony Dobbins in recorded calls and written letters, especially
while Dobbins was serving time in Colorado with Larry Hoover. Abundant evidence demonstrated that Griffin and Dobbins were close associates within the Gangster Disciples who
16 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
shared a desire not only to further the gang’s mission, but also
to implement Hoover’s vision for new leadership. They discussed these topics in detail in several communications. We
have held that “[c]onversations identifying actors within the
conspiracy help to ‘confirm the lines of command in the organization,’ and in that way do, in fact, further the conspiracy.” United States v. Hernandez-Rivas, 348 F.3d 595, 600 (7th
Cir. 2003) (quoting Pallais, 921 F.2d at 688); see also United
States v. Musaibli, 42 F.4th 603, 619 (6th Cir. 2022)
(“[S]tatements which identify the participants and their roles
in the conspiracy are made in furtherance of the conspiracy.”
(cleaned up)). At the time in question, Griffin and Dobbins
were jockeying for positions of increased authority in the
Gangster Disciples. Many of Dobbins’ statements discuss
how they will achieve that end and were therefore admissible
against Griffin. We have no concerns with these statements.
Griffin contests other admitted evidence too, pointing us
to a handful of specific out-of-court statements made by other
alleged coconspirators. But we are unable to say the district
court abused its discretion in admitting any of them. Take, for
example, a challenge Griffin brings to statements made during a November 2018 phone call among various unindicted
Gangster Disciples. The discussion focused on the status of
leadership positions within the gang and the view that Griffin, who was locked up, “was gonna get, uh, Missouri” and
that he was “solidified by dad.” GX 122T. By its terms, this
statement satisfies the requirements of Rule 801(d)(2)(E), as it
could have informed the jury’s assessment of facts pertinent
to the leadership shakeups within the Gangster Disciples during the relevant period.
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 17
Consider another example. Griffin challenges a statement
made during a 2019 phone call by Barry Boyce, a former defendant who pleaded guilty before trial, in which Boyce states
that Griffin had placed “little dude” in charge of Illinois. Griffin tells us that the district court should never have allowed
Boyce’s statement to reach the jury because he and Boyce
were at cross purposes within the Gangster Disciples, thereby
preventing any finding that were part of the same conspiracy.
See United States v. Coe, 718 F.2d 830, 840 (7th Cir. 1983). But
we see no error here, as Boyce’s challenged statement was
about leadership roles and decisions generally within the
gang. Even accepting that the two members (Griffin and
Boyce) may have harbored different perspectives on leadership matters, the two could still be part of a conspiracy with
shared criminal objectives. They both seek to continue the
overall success of the larger organization. See Hernandez-Rivas, 348 F.3d at 600; see also Musaibli, 43 F.4th at 619.
Finally, we owe a word to the district court’s finding that
many of the challenged out-of-court statements were not
hearsay implicating Rule 801(d)(2)(E), but instead idle chatter.
We agree that it can be difficult to redact all chatter from recorded discussions. Nor is it necessary to do so, as chatter often
adds important context to the true statements of interest.
While the district court may have filtered out more idle chatter, see Pallais, 921 F.2d at 684, and would have been aided in
doing so by a Santiago proffer, the defendants have fallen well
short of persuading us that the district court committed error
on this front.
***
We have spilled a lot of ink on what transpired here because it concerns us and was entirely avoidable. The pathway
18 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
was a pretrial Santiago proffer. These should happen in all but
the rarest of cases where a party seeks to introduce statements
of coconspirators under Rule 801(d)(2)(E).
No doubt there will be special circumstances where extra
precaution needs to be taken with a Santiago proffer to protect
a witness’s identity, ensure safety, and the like. But a ready
solution in those instances is to request an in camera review of
the evidence. See United States v. Abuhamra, 389 F.3d 309, 327
(2d Cir. 2004). In still other instances, it may be that the volume and significance of coconspirator statements is so lacking
that all parties are comfortable with the district court resolving admissibility questions during trial. No one solution fits
all cases. But the norm should be a broad embrace of Santiago
proffers.
III
A
All four defendants also contend the government’s evidence was insufficient to support their convictions. On this
front they face a heavy burden, as our review, though independent of the district court’s assessment of the evidence,
must evaluate “the evidence in the light most favorable to the
government” and ask whether “‘any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.’” United States v. Elizondo, 21 F.4th 453,
470 (7th Cir. 2021) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). We have described a defendant’s burden of prevailing on a sufficiency-of-evidence challenge as “nearly insurmountable.” United States v. Warren, 593 F.3d 540, 546 (7th
Cir. 2010).
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 19
Recall from our summary chart that the jury convicted all
defendants on the Count 1 charge of conspiracy to commit a
pattern of racketeering activity, in violation of 18 U.S.C.
§ 1962(d). This offense required proof that (1) “the defendant
knowingly conspired to conduct or participate in the conduct
of the affairs of [the Gangster Disciples], an enterprise,
through a pattern of racketeering activity”; (2) that the Gangster Disciples was “an enterprise”; and (3) that “the activities
of [the Gangster Disciples] would affect interstate commerce.” The William J. Bauer Pattern Criminal Jury Instructions
of the Seventh Circuit 852 (2025).
When it came to Count 1, the jury also made express findings that each defendant participated in a murder specified in
the superseding indictment as a special sentencing factor. For
Smith, Clemon, and Maxwell, the indictment specified the
April 28, 2018 murder of Leroy Allen, and for Griffin the May
18, 2018 murder of Ernest Wilson. The jury’s special findings
had the consequence under 18 U.S.C. § 1963(a) of subjecting
each defendant to a possible term of imprisonment for life.
Beyond Count 1, the jury convicted all defendants of aiding and abetting murder in aid of racketeering in violation of
18 U.S.C. § 1959(a)(1) (Count 2 for Smith, Clemon, and Maxwell, and Count 11 for Griffin). Section 1959(a)(1) criminalizes, among other things, a defendant’s participation in a
murder for the purpose of maintaining or increasing the defendant’s position in the enterprise. The jury found Smith,
Clemon, and Maxwell guilty on an additional count (Count 5)
under § 1959 for attempted murder. The defendants challenge
the sufficiency of evidence on each of these convictions too.
Finally, the remaining convictions on Counts 3, 4, 6, 12,
and 13 involve the use of a firearm in the underlying offenses,
20 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(j)(1). As the
defendants seem only to contest their participation in the underlying substantive offenses—not that a firearm was used or
caused a particular death—we will not address these counts
further.
B
We begin with Warren Griffin. No defendant seems to
challenge that he was a member of the Gangster Disciples,
that the gang was an enterprise within the meaning of 18
U.S.C. § 1961(4), and that it affected interstate commerce. Our
focus, then, for the Count 1 conspiracy charge is on whether
sufficient evidence supported the jury’s finding that Griffin
agreed to engage in a pattern of racketeering activity—defined in § 1961(5) to mean at least two predicate acts of racketeering within ten years. The superseding indictment alleged, among other various plausible acts under § 1961(1),
that Griffin aided and abetted the first-degree murder of Ernest Wilson on May 18, 2018 (in violation of 720 ILCS 5/9-1) and
trafficking in controlled substances (in violation of 21 U.S.C.
§ 841(a)).
As for the May 2018 murder, the jury heard ample evidence that Griffin had a motive to kill Wilson. He and Anthony Dobbins regularly discussed older gang members “up
north,” which would have included Wilson, not embracing
their new leadership. About a week before Wilson’s murder,
Griffin texted Dobbins about Wilson’s whereabouts. And on
May 18, 2018, the day of the murder, Griffin texted his own
address in Glenwood, Illinois to Dobbins, who then drove
there from East St. Louis in southern Illinois.
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 21
The jury also saw video footage of the Wilson murder. The
video showed a white Cadillac, the type of car that Dobbins
drove, parking at the corner of 72nd Street and Euclid. It also
showed two men stepping out of the car and eventually splitting up. Based on all the evidence, the jury could have inferred that they were Griffin and Dobbins. Griffin then met
Ernest Wilson, and Dobbins hid behind a nearby tree. Griffin
and Wilson then started walking in the general direction of
the tree, only for Griffin to eventually break off and walk in
another direction as Dobbins emerged from behind the tree
and approached Wilson. Then Dobbins shot and killed Wilson, while also accidentally shooting himself in the leg.
The government’s evidence did not end there. Crime
scene technicians found a glove containing traces of Griffin’s
DNA. The jury also learned that, after the murder, Griffin and
Dobbins drove from Chicago back toward East St. Louis,
where Dobbins went to a local hospital for the gunshot
wound to his leg. He told an investigator that he was attacked,
a claim that had no support. On this evidence, a reasonable
jury could find that Griffin participated in the murder of Ernest Wilson.
So too did the government present sufficient evidence that
Griffin participated in a second predicate act of trafficking in
controlled substances. The jury heard testimony from several
members of law enforcement and a former Gangster Disciple
that the gang trafficked in illegal narcotics, especially when
money was tight. And the jury heard significant evidence that
Griffin was not just a member of, but a leader in, the Gangster
Disciples and that he had a close relationship with Dobbins.
Additionally, the jury learned that the Illinois police executed a warrant and arrested Griffin on August 9, 2018.
22 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
During the course of that arrest, officers found almost two
pounds of marijuana in a backpack in the trunk of Griffin’s
car. Illinois State Police Master Sergeant Nick Homann testified that, in his experience from other narcotics investigations,
that quantity of marijuana and its packaging indicated it was
intended for distribution. The officers also found two fake IDs
and four cell phones in Griffin’s car, and the jury could reasonably infer that someone traveling with those items, alongside the two pounds of marijuana, did not intend to use the
drugs for personal use. Noteworthy too was the police’s recovery from Griffin’s car of a printout of a Bureau of Prisons
report related to Anthony Dobbins.
One day later, on August 10, 2018, Illinois police arrested
Dobbins at an apartment in East St. Louis. A subsequent
search resulted in the police finding cocaine and heroin outside the apartment’s window. And inside the home officers
located digital scales, sandwich bags, and a machine for sealing bags, which a law enforcement officer told the jury are
materials for distributing drugs.
The timing and location of the arrests, the broader evidence of Gangster Disciple drug dealing, and the close relationship between Dobbins and Griffin, all combined with the
large quantity of drugs and other indicia of distribution found
during the arrests, permitted a finding that Griffin agreed to
the trafficking of controlled substances.
C
We next turn to Frank Smith’s sufficiency-of-evidence
challenge. Our focus is on two of the predicate acts alleged
against Smith for his role in the Count 1 racketeering conspiracy—his participation in the April 28, 2018 murder of Leroy
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 23
Allen in Matthews Park in Missouri and conspiring to commit
murder under Illinois law for a separate incident.
By way of recapping the Matthews Park incident, a key
point to remember is that, around 2017 to 2018, Smith, Griffin,
and Dobbins—all close associates—sought to consolidate and
enhance their authority within the Gangster Disciples. This
occurred at a time when the gang’s governor of Missouri was
Dushawn Wharton, who reported to Shauntay Craig. After
months of expressing his frustration with Wharton, Griffin
held a small meeting, ousted Wharton as Missouri governor,
and made Christopher Blount interim governor. To publicize
this change, Blount planned an event at Matthews Park in
Bridgeton, Missouri for April 28, 2018.
The gathering occurred and multiple Gangster Disciples
attended. Defendants Sean Clemon and Dominque Maxwell
were there as was Perry Harris, who was charged in this case
but pleaded guilty and testified as a cooperating witness for
the government at trial. Wharton and some of his crew, including Leroy Allen, showed up, causing tension to escalate.
Wharton repeatedly attempted to assert his authority as governor of Missouri, resisting any notion that he had been replaced. To seek direction on how to handle the situation, Maxwell, after consulting with Clemon, placed a call to Frank
Smith who, in turn, tried to talk Wharton down. When that
effort failed, Smith ordered Maxwell to subject Wharton to a
beatdown—a “Mike Tyson” as Smith called it. The jury heard
testimony from Damien Madison, a former Gangster Disciple,
that the term “Mike Tyson” was a reference to the former
champion boxer, one with a reputation for intense and powerful punching. Within the gang, Madison explained, the term
24 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
served as a direction to subject someone to extreme violence,
like a stabbing or shooting.
Maxwell followed Smith’s order. Specifically, the jury
heard eyewitness testimony that Maxwell struck Wharton in
the back of the head, which prompted a firefight within the
park that ended with Wharton shot in the stomach and Leroy
Allen shot and killed. When the shooting stopped, Maxwell
texted Smith one word: “Done.”
On this evidence, the jury could have found that Smith
committed the predicate act of murder by ordering the “Mike
Tyson.” His conduct also satisfied the requirement for an enhancement under Count 1, as well as the elements of Counts
2, 3, 4, 5, and 6—murder and attempted murder in aid of racketeering and the related firearm offenses. And for Count 2,
under § 1959(a)(1), punishing insubordination, especially
when it occurs in front of other subordinates, is a textbook example of maintaining authority.
That brings us to a second predicate act of racketeering alleged against Smith—conspiracy to commit murder in Illinois. On this charge, the government introduced evidence
that, on December 30, 2019, Maxwell asked Smith for help
finding someone in a federal prison. Smith responded by
providing the inmate’s information and name of the prison,
and from there Maxwell asked if they “got people there … I
need to holla at Mike Tyson.” Smith responded by supplying
additional information. All of this occurred within two years
of the Matthews Park shooting of Dushawn Wharton and
murder of Leroy Allen. A jury could have inferred from this
additional activity that Smith agreed with Maxwell to arrange
a murder within an Illinois prison.
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 25
D
Sean Clemon and Dominque Maxwell filed a combined
brief contesting the sufficiency of the evidence against them.
For Count 1, they concede the government introduced evidence of witness tampering, a predicate act under 18 U.S.C.
§ 1961(1). For a remaining predicate act in Count 1, the trial
evidence showed that they were triggermen for the shooting
in Matthews Park on April 28, 2018. So the jury had overwhelming evidence to convict Clemon and Maxwell on Count
1.
For Counts 2 and 5—murder and attempted murder in aid
of racketeering—Clemon and Maxwell contest, like the other
defendants, whether their acts were done to maintain or advance their position in the enterprise. But Clemon and Maxwell personally benefited from the violence. After the
shootout, Clemon took over as governor of Missouri and
Maxwell stepped in as assistant governor. We see no need to
belabor this issue further. We find no deficiency in the jury’s
guilty finding for Counts 1, 2, 3, 4, 5, or 6.
IV
That brings us to a series of other issues raised by the defendants.
A
Dominque Maxwell alone challenges the district court’s
denial of his motion to suppress the gun that killed Leroy Allen in Matthews Park on April 28, 2018.
On November 23, 2019, a federal agent overheard Maxwell tell an informant that he was drinking and might assault
a rival. The agent relayed this information to local law
26 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
enforcement, who found Maxwell driving in Cape Girardeau,
Missouri and observed him commit a turn signal violation. A
local police officer then stopped Maxwell and, while retrieving and running his driver’s license, police requested a canine
sniff. The canine arrived about seven minutes into the stop
and three minutes after being requested, before the officer
completed the citation. The dog alerted while circling Maxwell’s car, and a subsequent search turned up a Ruger 9mm
handgun.
Maxwell moved pretrial to suppress the handgun. The
district court denied the motion, finding that that the collective knowledge doctrine applied and allowed the local police
officer, upon the request of the federal agent, to stop Maxwell
for the traffic violation.
Evaluating the factual findings of a motion to suppress for
clear error and taking a fresh look at legal conclusions, United
States v. Devalois, 128 F.4th 894, 898 (7th Cir. 2025), we agree
that the collective knowledge doctrine applied. Upon hearing
that Maxwell was drinking and looking to hurt someone, the
federal agent sought assistance from local authorities, leading
a nearby officer to conduct a lawful car stop. See United States
v. Williams, 627 F.3d 247, 252–53 (7th Cir. 2010). Nor, having
reviewed the timeline of the pertinent events, do we see any
unreasonable delay or other infirmity in requesting the canine
sniff. See United States v. Simon, 937 F.3d 820, 831–32 (7th Cir.
2019) (citing Illinois v. Caballes, 543 U.S. 405, 410 (2005)); see
also United States v. Bentley, 795 F.3d 630, 635 (7th Cir. 2015)
(“An alert from an adequately trained and reliable dog is sufficient to give rise to a finding of probable cause.”).
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 27
B
Dominque Maxwell, joined by all defendants, contends
that the district court erred in handling a prospective juror’s
unprompted comment during voir dire that the Gangster Disciples, at some point in the past, had put a hit out on him. We
see no error.
We review a district court’s decision whether to dismiss
prospective jurors for an abuse of discretion. See United States
v. Thomas, 161 F.4th 1082, 1085 (7th Cir. 2025). If jurors hear an
improper comment during voir dire, we must discern
whether any manifest injustice resulted—specifically,
whether the improper comment would prevent other jurors
from being impartial. See id. at 1086.
The district court handled this issue with considerable
care and ultimately dismissed the person while taking a step
to confirm the remaining prospective jurors’ impartiality. We
see no error whatsoever. See id. (finding no abuse of discretion when the district court refused to dismiss an entire venire
when a venireperson said in her experience that the police
only brought sound charges).
C
Griffin, Clemon, and Smith invoke Federal Rule of Evidence 801(d)(2)(E), and challenge the district court’s decision
to permit Damien Madison to testify. Madison was an imprisoned former Gangster Disciple from Colorado who volunteered to cooperate in this prosecution in the hope of receiving a reduced sentence. Although distinct from the Rule
801(d)(2)(E) challenges addressed earlier in our opinion, this
one also falls short.
28 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
Madison testified about his role in and understanding of
the organization and operation of the Gangster Disciples,
which he became involved with when he was around thirteen
years old. He discussed his early role as a treasurer in the organization, and how the gang made money selling narcotics.
And he told the jury about his time as the organization’s governor of Colorado, a role he assumed in 2017. He explained
his familiarity with the Gangster Disciples’ governance structure to the jury. We find no error in the admission of this testimony under Rule 801(d)(2)(E) or otherwise.
The defendants also focus their objection on a few of Madison’s specific statements. At one point, he testified that he
recognized the term “Mike Tyson” and told the jury that, as
used within the Gangster Disciples, it referred to “extreme violence” like a shooting or a stabbing. Madison also identified
Frank Smith as a board member.
Even if we were to consider Madison’s explanation of a
“Mike Tyson”—or his identification of Smith as a board member—to be inadmissible hearsay, the admission of the statements would be harmless. When Smith gave the direction to
Maxwell to “Mike Tyson” Dushawn Wharton in Matthews
Park on April 28, 2018, the deadly firefight broke out that took
Leroy Allen’s life and left Wharton shot in the stomach. Afterward Maxwell texted, “Done.” That was enough for the jury
to infer the meaning and intent behind Smith’s order for a
“Mike Tyson.” As for Madison’s identification of Smith as a
board member, the jury already had enough to find that he
had a leadership role, as Smith’s attorney acknowledged at
closing argument. We find no reversible error here.
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 29
D
We come in closing to Warren Griffin’s contention that the
district court committed error in admitting cellular telephone
location data at trial. The government introduced this evidence principally as part of proving Griffin’s involvement in
the May 2018 murder of Ernest Wilson. While we have some
reservations with the district court’s admission of aspects of
the evidence, any error was harmless.
Before trial Griffin invoked Federal Rule of Evidence 702
and the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and moved to exclude the government’s expert testimony and evidence related to historical cell-site information. The district court held
a hearing and heard testimony from FBI Special Agent Greg
Catey, a member of the Bureau’s Cellular Analyst Survey
Team. The testimony focused on Agent Catey’s training and
experience as well as the reliability of information in an exhibit Agent Catey prepared. That exhibit depicted on a map
location data, presented by reference to cellular towers, for
phone calls from numbers associated with Dobbins and Griffin. The exhibit showed the locations of the phones at various
times on May 18, 2018, the date of the Ernest Wilson’s murder.
Agent Catey reached specific conclusions. Based on which
side of a tower a phone connected to, he determined the general direction of the phone at a given time in relation to that
tower. And based on the perceived areas of coverage of the
towers, Agent Catey formed even more specific opinions
about where the phones might be at specific times. He marked
other points of interest on the maps, including Dobbins’ home
address near East St. Louis, Griffin’s home address closer to
Chicago in Glenwood, Illinois, and the location of Ernest
30 Nos. 23-2434, 23-2450, 23-2479, & 23-2652
Wilson’s murder in the south side of Chicago. The hearing
made clear that the government intended to rely on Agent
Catey’s opinions to show that Griffin traveled to the scene of
the murder.
The district court denied Griffin’s motion to exclude and
at trial qualified Agent Catey as an expert and admitted his
testimony and the exhibit. On appeal Griffin contends that
Agent Catey’s analysis and mapping was not based on sufficient facts or data and was unreliable and unduly prejudicial
because his opinions about the likely location of Griffin’s and
Dobbins’ cell phones before and during the murder of Ernest
Wilson were more precise than permitted by the underlying
data.
Griffin grounds his contentions in our decision in United
States v. Hill, 818 F.3d 289 (7th Cir. 2016). There we allowed
historical cell-site analysis to show a phone was traveling in a
general area, but we were hesitant to allow the evidence to get
too specific. See id. at 298–99. We cautioned “the government
not to present historical cell-site evidence without clearly indicating the level of precision—or imprecision—with which
that particular evidence pinpoints a person’s location at a
given time.” Id. at 299. Agent Catey may have exceeded this
limit at trial by getting too specific as to the location of Griffin’s and Dobbins’ cell phones in the time before and after the
Wilson murder.
But we are confident any error was harmless. Recall that
the government presented the jury with significant, if not
overwhelming, evidence linking Griffin (and Dobbins) to the
murder of Ernest Wilson. That evidence included a motive
and a glove recovered from the crime scene containing Griffin’s DNA. It also included a map that more generally showed
Nos. 23-2434, 23-2450, 23-2479, & 23-2652 31
Dobbins’ cell phone moving from East St. Louis to Glenwood
where Griffin lived, and then, later in the day, both Griffin’s
and Dobbins’ phones traveling south from Chicago to East St.
Louis where Dobbins lived. This more general location data
easily passes muster under Hill. All this evidence was more
than sufficient to convince a jury, beyond a reasonable doubt,
of Griffin’s involvement in the Wilson murder. In short, any
error in admitting the more specific opinion testimony of
Agent Catey was harmless.
***
In the final analysis, and for these reasons, we AFFIRM.