08-1616, & 08-1617 United States of America v. DAREK HAYNES, BRODERICK JONES, EURAL BLACK, and BRENT TERRY

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 25, 2009
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 08‐1466, 08‐1608, 08‐1616, &
08‐1617
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DAREK HAYNES, BRODERICK JONES,
EURAL BLACK, and BRENT TERRY,
Defendants‐Appellants.
Appeals from the United States District
Court for the Northern District
of Illinois, Eastern Division.
No. 1:05‐cr‐70
Ronald A. Guzmán,
Judge.
O R D E R
On October 30, 2009, counsel for Defendant‐Appellant Brent Terry filed a Petition for
Panel Rehearing which contained Terry’s pro se Petition for Rehearing With Suggestion for
Rehearing En Banc, as an attachment, and we will consider it as being incorporated by
reference.
On September 17, 2009, this panel affirmed Terry’s convictions. One of Terry’s
arguments on appeal was that a fatal variance existed because the evidence was insufficient
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Nos. 08‐1466, 08‐1608, 08‐1616, & 08‐1617 Page 2
to prove that he participated in any part of the charged conspiracies other than the
Townsend ripoff at 87th and Michigan. We held that the evidence was sufficient to allow
a reasonable jury to find him guilty of the conspiracies with which he was charged. In
addressing the substantial evidence that supported this conclusion, the opinion discussed
and quoted an October 7, 2004, recorded conversation between Broderick Jones and Terry
in which Jones said, “you good. . . . I’m thinking like damn, that man got a demo,” to which
Terry responded, “Which, which one you talking about?” We concluded that Terry’s
question implied that there were several “demos” and thus supported the inference that
Terry participated in more than one ripoff. This conclusion rested on the view that “demo”
meant criminal activity. However, in discussing that October 7th conversation, the opinion
stated parenthetically at page 20 that “(Jones testified that ‘demo’ meant criminal activity.)”
Terry and his counsel in the petitions for rehearing correctly note that Jones did not testify
at trial.
Terry seeks rehearing by the panel, contending that this error may have affected the
analysis of the sufficiency of the evidence as related to his variance claim. Though the
opinion incorrectly attributed this explanation for the term “demo” to Jones, the record
nonetheless readily supports a reasonable inference that “demo” as used in the context of
this recorded conversation meant “criminal activity.” This factual error did not affect this
court’s conclusion that there was sufficient evidence to establish that Terry participated in
the conspiracies alleged in the indictment and that his participation went further than the
Townsend ripoff. The opinion discusses the evidence, including other recorded
conversations between Terry and Jones, telephone records reflecting phone calls between
Terry and Jones the day of the July 21 attempted ripoff, and Terry’s participation in the
Townsend ripoff with Flagg, which supports Terry’s conspiracy convictions. Therefore,
the opinion issued on September 17, 2009, is now amended as follows:
The parenthetical at slip op. 20, line 18 is corrected to read “(The record supports a
reasonable inference that “demo” as used in this context meant “criminal activity.)”
Terry’s incorporated pro se Petition for Rehearing With Suggestion for Rehearing En
Banc (which, as noted, was attached to his counsel’s Petition for Panel Rehearing), adds
nothing to counsel’s petition that would warrant panel rehearing. Accordingly, Terry’s
Petition for Panel Rehearing submitted by counsel is denied.
There is some confusion regarding Terry’s intention with respect to his pro se Petition
for Rehearing With Suggestion for Rehearing En Banc. Apparently, Terry sent that petition
to his counsel, but there is no indication that Terry sent the petition to or filed it with the

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Nos. 08‐1466, 08‐1608, 08‐1616, & 08‐1617 Page 3
court. However, his counsel may have believed that it was filed, based on their statement
that counsel’s Petition for Rehearing “supplements” Terry’s pro se petition on one limited
issue (presumably the “demo” matter) but that it does not “supersede” the pro se petition
on any other ground. The point of mentioning this is that in addition to seeking panel
rehearing, the pro se petition also suggests rehearing en banc, whereas counsel’s petition
did not.
This raises the question of whether Terry’s pro se petition should be accepted and filed
by the Clerk. It was received by Terry’s counsel prior to the extended deadline for filing a
petition for rehearing, and perhaps Terry thought by sending it to his counsel that it would
be filed with the court. According to an affidavit attached to a motion to extend the time
for filing a petition for rehearing, Terry’s counsel had notified him that they did not intend
to file a petition for rehearing on his behalf. The affidavit further notes that counsel had
advised Terry that he had the option of filing a pro se petition for rehearing. And, in fact,
the pro se petition, or at least a copy of it, was received by the Clerk before the expiration
of the time for filing a petition for rehearing because it was attached as an exhibit to
counsel’s timely Petition for Panel Rehearing. To eliminate any confusion about this, we
direct the Clerk to accept and file the copy of Terry’s pro se Petition for Rehearing With
Suggestion for Rehearing En Banc attached to his counsel’s Petition for Panel Rehearing.
We deem the pro se petition to be timely. To the extent that the pro se petition seeks panel
rehearing, it has already been denied through this order. It will be further considered only
insofar as it suggests rehearing en banc and the Clerk is directed to distribute copies of the
pro se petition to the members of the court. The time for consideration of the suggestion
for rehearing en banc under the Operating Procedures of the court will begin on the date
of distribution.

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