concluding that "[a]ny [post-verdict] inquiry as to bias arising from the alleged premature deliberations would run afoul of [ Rule 606(b)'s] clear proscription" and would thus be "fruitless" (internal quotation marks omitted)
How later courts described this case
- concluding that "[a]ny [post-verdict] inquiry as to bias arising from the alleged premature deliberations would run afoul of [ Rule 606(b)'s] clear proscription" and would thus be "fruitless" (internal quotation marks omitted)
- explaining that “[a]ny inquiry as to bias arising from the alleged premature deliberations would run afoul” of Rule 606(b)
- noting that “the use of anonymous juries is discouraged” and the district court should put “its reasons for granting the government’s motion [to empanel an anonymous jury] on the record”
- decision to empanel anonymous jury was supported by the fact that several gang members remained unindicted, and at least one indicted person was still a fugitive
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARIANO M ORALES, A RTURO B ARBOSA,
M IGUEL R ODRIGUEZ, B RIAN H ERNANDEZ,
L IONEL L ECHUGA, H AROLD C ROWDER,
and R OMEL H ANDLEY,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 90—Harry D. Leinenweber, Judge.
A RGUED M ARCH 28, 2011—D ECIDED A UGUST 18, 2011
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. In 2002, state and federal authori-
ties began an intensive investigation into gang violence
in Aurora, Illinois. Their investigation centered on the
Insane Deuces street gang, as one member had agreed to
2 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
serve as a confidential informant for local authorities.
Mariano Morales, Arturo Barbosa, Miguel Rodriguez,
Brian Hernandez, Lionel Lechuga, Harold Crowder, and
Romel Handley (collectively, the “Defendants”) all partici-
pated in the gang’s activities. They were among sixteen
individuals indicted by a federal grand jury on various
racketeering-related charges in 2006. After the trial was
bifurcated, the seven Defendants stood trial together
and were each convicted of racketeering conspiracy;
some were also convicted of related charges, including
narcotics distribution and conspiracy, illegal firearm
possession, and assault and murder in furtherance of
their racketeering activities. Once proud, self-identifying
Deuces banging on the street, each now tries to distance
himself from the gang and claims to have been only
tangentially involved in its activities, if at all. The De-
fendants present three joint and fourteen individual
issues, alleging errors in both the guilt and sentencing
phases of their trial. Finding that their arguments lack
merit or that the errors alleged were harmless, we
affirm their convictions and sentences.
I. B ACKGROUND
The Defendants were members or confederates of the
Insane Deuces, a street gang with a heavy presence in
northeastern Illinois in the previous decade. With the
help of a gang member seeking to avoid prosecution
following an arrest, local and federal authorities gathered
information on the Insane Deuces and tried to dismantle
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 3
09-3347, 09-3603 & 09-3653
the gang in Aurora, Illinois, where gang-related violence
had soared in the early 2000s. Today we resolve two
appeals arising from trials based upon those efforts:
this case and its companion case, United States v. Benabe,
No. 09-1190, slip op. (7th Cir. Aug. 18, 2011). We will
briefly describe the background of the gang and its ac-
tivities before discussing the proceedings leading to the
current appeal.
A. About the Gang
The Insane Deuce Nation (“Insane Deuces,” “Deuces,” or
the “Nation”) is an organized street gang affiliated with
the Folks, a national network of various local gangs.
Recently, the gang has been predominantly composed
of Latino/Hispanic males and has operated primarily
within northern Illinois, though factions exist throughout
Illinois and various state and federal prisons. Cities in
northeastern Illinois had individual chapters under the
umbrella of the Nation and its centralized leadership.
This case involves the Aurora Deuces, a chapter with a
significant presence in Aurora, Illinois.
A loose association between the Insane Deuces and the
Latin Kings, a gang affiliated with the Peoples network,
had evaporated before the events in this case occurred.
By 2002, the Deuces and Kings were bitter rivals fighting
for control of Aurora’s streets. The rivalry resulted in
frequent and escalating violence, often leading to attacks
against victims mistaken for rival gang members.
This inter-gang violence precipitated the investigation
leading to this case.
4 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
The Deuces comprised at least three tiers of member-
ship: Seniors, Juniors, and Shorties. Shorties were the
gang’s youngest full members. They bore responsibility
for executing most of the gang’s activities, including
carrying out violent acts and selling narcotics to fund
the gang. They were often juveniles, recruited in their
youth to build the gang’s ranks while minimizing
criminal liability. By participating in gang activities,
young members could become Juniors. Juniors were
responsible for daily Deuce operations. They directed the
Shorties’ activities and planned narrow-scale operations,
determining which Shorties would participate, assigning
responsibilities and distributing firearms to them, and
supervising their activities. The Seniors were long-
standing members of the gang whose age and accom-
plishments made them the leaders, broad-scope planners,
and advisors for the gang. They directed the Juniors
but were often removed from the Deuces’ daily activities.
The local chapter in Aurora was organized at the
Junior level, likely due to the ongoing incarceration of
the local Seniors.
Each tier in the Deuces had its own leadership struc-
ture where three members in each tier bore a title and
increased responsibilities. The highest rank in each tier
was the “First Seat” or “Governor” who was responsible
for the overall activities of that group. The “Second Seat”
or “Lieutenant Governor” assisted in directing activities
within the tier, often assigning missions. The third-ranking
member, or “Enforcer,” was responsible for ensuring
compliance with the gang’s disciplinary codes and for
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 5
09-3347, 09-3603 & 09-3653
administering “violations” (punishments) to members
who broke the gang’s “leyas” (laws) or failed to par-
ticipate in its activities.
The Deuces’ daily activities included dealing narcotics
to benefit the gang, going on “missions” (planned attacks
on rival gang members), protecting and supporting
fellow gang members and their families, punishing gang
members who violated the gang’s codes, and meeting to
coordinate these efforts. To facilitate their activities, the
Deuces maintained a “caja” system, a loose form of com-
munity property and money acquired for the benefit of
gang members. For example, if a Deuce was arrested
and held pending trial, other members would take
money from the caja to post bail for him. The caja also
included a quantity of narcotics from which a member
could borrow to make sales or trades for the benefit of
the Nation. Although the Deuces were allowed to buy
and sell drugs in a “free enterprise” system—sales could
be conducted from sources outside of the Nation—all
sales needed to benefit the Nation in some way,
typically by paying a portion of the proceeds into the
caja. Alternatively, profits from sales could be used to
purchase firearms to donate to the gang. These “Nation
guns” would then be used in carrying out missions or
protecting members; the guns would be returned to the
caja after the mission for later use (unless disposed of to
avoid ballistics evidence in the event of a murder).
Participation was compulsory for Juniors and Shorties,
including those members who were rolled back from
6 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
Senior to Junior status in an effort to better train, lead, and
supervise the Deuces’ swelling Shorty ranks. Every Junior
and Shorty had to pay periodic dues into the caja to
support the gang’s activities. Missions were specifically
assigned to gang members and usually consisted of
planned attacks directed against specific rival gang mem-
bers in retaliation for violence or territorial encroach-
ment. Nation guns would be distributed for the mission
along with orders to empty the magazine or bear viola-
tions for every bullet not fired. In addition to missions,
all members were expected to comply with a standing
order to attack Latin Kings whenever the opportunity
arose. Participation in missions, other acts of violence,
and donations of money, contraband, or firearms to the
caja through drug sales or theft led to advancement
within the organization. In exchange for these efforts,
Deuces and their families received financial support
and physical protection; these benefits extended to both
Deuces on the streets and those who were incarcerated
in various facilities throughout Illinois.
B. The Investigation
Following a drug raid on Junior Enforcer Orlando
Rivera’s home in early 2002, Rivera absconded, and a
warrant issued for his arrest. After two months, he was
arrested pursuant to the warrant and was looking to
avoid prosecution. He therefore began cooperating with
local and federal authorities investigating the Deuces.
He surreptitiously recorded gang meetings and conversa-
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 7
09-3347, 09-3603 & 09-3653
tions, he pretended to discard Nation guns only to hide
them and later turn them over to authorities, he reported
the gang’s activities and plans, and he received money
to conduct controlled buys of narcotics and firearms
from gang members. The intelligence gathered through
Rivera produced evidence on four murders, eleven at-
tempted murders, two solicitations to commit murder,
other shootings, and narcotics distribution incidents—
all of which the Deuces perpetrated in 2002 alone.
In exchange for his services, Rivera received full
immunity for his activities with the Deuces, and the
government relocated and compensated him.
Through Rivera’s cooperation and information arising
from it, government authorities learned about each of the
Defendants’ roles and general scope of participation in
the Deuces’ criminal activities. We briefly relate some
of that background information here.
• Morales joined the gang in 1986 while in his
early teens, and he carried out shootings and
narcotics sales to move up in the Nation. He’d
risen to a leadership position and helped craft
the gang’s leyas, including the standing order
to kill Latin Kings on sight. By 2002 he was a
Senior, but was rolled back to Junior status
during the Deuces’ reorganization. He became
the Junior Enforcer, the third highest rank in
the Aurora Deuces; he expressed support for
the change, noting that it was “the best thing
that happened.”
8 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
• Barbosa was a long-standing Insane Deuce
who immediately resumed his gang activities
when released from prison in 2002. He person-
ally approved of murdering his cousin, a rival
gang member, and attempted to murder a
Deuce the leadership erroneously believed to
be cooperating with police. He encouraged the
leadership to be more active in training the
Shorties to be ready to carry out missions so
the gang could gain control of the city. He
also flatly stated his intention for the gang
to kill rivals: “You see one, you do his ass.
Plain and simple.”
• Rodriguez was also a Senior before being
rolled back to Junior status in 2002. Coming up
in the Deuces, he attempted to kill rivals and
distributed drugs for the gang’s benefit. He
had assisted in developing the leyas and as-
signed missions to Shorties. After being rolled
back, he advocated murdering members of
the rival Ambrose street gang en masse and
murdering whoever had been cooperating
with the police from within the Deuces.
• Hernandez joined the Deuces between the
ages of 12 and 17, and he had risen to the
Junior ranks by 2002. As a supervisor for the
Shorties, he hosted meetings at his house, sent
them out on missions, provided them with
firearms for the missions, and handled viola-
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 9
09-3347, 09-3603 & 09-3653
tions if they failed to comply with his orders.
He had been personally involved in at least
three shootings that former gang members
testified about at trial. He also was recorded
requesting cocaine from the caja for himself
and his cousin.
• Lechuga was another older Deuce who had
been rolled back to Junior status. The record
shows conflicting accounts of his previous
status: he asserts that he was retired and that
he was pulled back in when Deuce leadership
raised the retirement age to 35, but contrary
evidence indicated that he was a Senior Deuce
prior to the rollback. Regardless, he was upset
with the manner of the rollback, but never-
theless did resume active participation in the
gang’s affairs. He also noted that he’d re-
mained willing to be involved while in retired
or Senior status. He counseled Deuce leaders
on how best to carry out inter-gang warfare
within the Folks network without risking
their ability to protect their members in
prison. He also advocated changes in the caja
system to increase efficiency in fronting drugs
to gang members, perhaps as a result of his
being unable to obtain from an enforcer the
cocaine he’d requested for resale in July 2002.
• Crowder held privileges in the Aurora Deuces,
though he had not come up in the gang. He
10 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
was a defector from the Gangster Disciples
and had come to the Deuces in late 2001 to
serve as a shooter on gang missions. He ful-
filled—indeed, exceeded—that role, attempting
to murder rival gang members and shooting
individuals he erroneously believed to be
Latin Kings.
• Handley declared to an Aurora police officer
that he’d been “a King killer and a Deuce all
[his] life.” According to Rivera’s testimony,
Handley was the Shorty Enforcer in Aurora
at the time of the events in this case, assigning
missions to Shorties and storing firearms for
the missions at his home. He was involved
in at least three of the gang’s attempted mur-
ders (either driving stolen cars during the
missions or personally firing on rivals). At
some point, however, Handley lagged in his
participation, and the gang’s leadership or-
dered other members to beat Handley if they
found him during the summer of 2002.
The investigation likewise revealed information about
the participation of other gang members, including
those whose activities are described in a companion case
we decide today. See Benabe, slip op. at 5-6. After
months of fruitful investigation, the authorities decided
to move forward with their attempt to dismantle the
Insane Deuces in Aurora.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 11
09-3347, 09-3603 & 09-3653
C. Proceedings Below
A federal grand jury indicted sixteen individuals
alleged to be Deuces on charges of racketeering conspiracy;
assault with a dangerous weapon, murder, attempted
murder, and conspiracy to commit murder, all in aid of
racketeering activities; illegal possession of firearms;
and distribution and possession with intent to distribute
narcotics (and conspiracy to do the same). The indict-
ment described the Deuce organization as a racketeering
enterprise and laid out some of the events comprising
its pattern of racketeering activities. One of the indicted
individuals pled guilty, and another remained at large.
Nine of the remaining fourteen individuals moved for
severance, requesting either individual trials or small
group trials. Given the amount of briefing and argu-
mentation, the challenges to juries inherent in lengthy
and overtly complex trials, and the logistics of
trying such a large group in a single courtroom,
Judge Castillo severed the case into two trials. He
grouped the Defendants together in the second of two
near-simultaneous trials, describing them as “the less
major players,” as compared to the “alleged leaders of
the conspiracy” comprising the group in the first trial
(the “Benabe trial”).1
1
Crowder was initially grouped with the first set of defendants
and stood trial with them, but that jury was unable to reach a
verdict as to him. On the government’s motion, he was
retried with the second group to stand trial. Accordingly, he is
among the Defendants in this appeal.
12 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
Judge Leinenweber commenced the Defendants’ trial
(after an earlier attempt that ended in a mistrial) in
October 2008. On the government’s motion, the district
court empaneled an anonymous jury. The Defendants
had objected to the motion, and the district court heard
arguments before ruling. It also had the luxury of con-
sidering Judge Castillo’s extensive reasoning and experi-
ences in the Benabe trial before ruling. The district court
determined that the circumstances warranted an anony-
mous jury and that any prejudice could be effectively
mitigated through jury instructions and comments
during voir dire. The venire members were told that
their identifying information was withheld to protect
their privacy and prevent any party or trial participant
from contacting them.
During the course of the three-month trial, the govern-
ment presented witness testimony, recordings of Deuce
meetings, and forensic evidence establishing the gang’s
activities, ideology, and purpose. One of the witnesses,
Rivera (the Deuce turned confidential informant), had
surreptitiously recorded gang meetings and conversa-
tions, performed controlled buys, and turned over evi-
dence that other Deuces had expected him to destroy or
dispose of on the gang’s behalf. He testified over four
days as to the inner workings of the gang, explaining
what was said in meetings, identifying participants and
speakers, and describing the gang’s organization and
enforcement means. Two other former Deuces, Lorenzo
Becerra and Akeem Horton, also testified regarding the
gang’s activities and individuals’ scope of participation.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 13
09-3347, 09-3603 & 09-3653
The government also presented testimony from twenty-
four police officers, eleven federal agents, and seven
victims.
The jury returned its initial verdicts a week after the
Defendants concluded their closing arguments, finding
each of the Defendants guilty of racketeering conspir-
acy. It also found Barbosa guilty of conspiracy to com-
mit murder, and it found Barbosa, Morales, Rodriguez,
Hernandez, and Lechuga guilty of distribution of narcot-
ics. By contrast, the jury acquitted Morales of conspiracy to
commit murder and was unable to reach a verdict on the
charges against Steven Perez; the district court declared
a mistrial as to Perez. On the court’s instructions, the
jury then returned special verdicts as to each defendant
it had found to be guilty; the special verdicts were
highly individualized, differentiating between the de-
fendants on shared counts.
Before the special verdict phase, however, the district
court received a note from a juror. The juror warned
that some of the jurors had been discussing the case
amongst themselves prior to deliberations, in contraven-
tion of the court’s standing instructions. The Defendants
moved for a mistrial, but the district court delayed
ruling on the motion until written motions and argu-
ments were submitted. It ultimately determined that a
hearing was unnecessary, denied the mistrial motion,
and proceeded to further jury deliberations.
Several of the Defendants filed post-trial motions
in March 2009 challenging various aspects of their con-
14 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
victions, including the sufficiency of the evidence pre-
sented at trial, and requesting judgments of acquittal.
All of the Defendants filed post-trial motions requesting
new trials on various grounds. In a consolidated ruling,
the district court denied all of the post-trial motions in
May 2009. The Defendants then proceeded to sentencing.
Morales, Hernandez, and Rodriguez were imprisoned
for life. Barbosa was sentenced to 480 months’ imprison-
ment. Handley and Lechuga were sentenced to 240
months’ imprisonment. Finally, Crowder was sentenced
to 177 months’ imprisonment. Each of the Defendants
timely appealed.
II. A NALYSIS
The Defendants appeal several aspects of their convic-
tions and sentences. Taking full advantage of our
leniency in allowing both joint and individual briefs, the
Defendants filed a virtual cannonade of briefing, ex-
ceeding 280 pages in total. Their opening salvo is a joint
brief presenting three issues. The Defendants collectively
argue that the alleged errors apply to them all and that
each error requires reversal of their convictions. Each of
the Defendants (other than Barbosa) then fires an inde-
pendent volley attacking his own conviction, sentence,
or both. We will address the jointly presented issues
first, then we will consider each appellant in sequence.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 15
09-3347, 09-3603 & 09-3653
A. Issues Presented by all Defendants
The Defendants jointly contend the district court com-
mitted three errors that require us to reverse their con-
victions. First, the district court maintained juror ano-
nymity during empanelment and throughout the trial.
The Defendants argue both that the anonymous venire
undermined the effectiveness of their voir dire and
peremptory challenges and also that the anonymity
caused the seated jury to be prejudiced against them.
Second, the district court denied severance motions
made by several of the Defendants. They argue that
being required to stand trial together led to evidentiary
spillover and undue lengthening of the trial, both of
which prejudiced the jury against individual defendants.
Third, the district court did not conduct a hearing to
explore the extent of the jury’s alleged premature delib-
erations. The Defendants argue that the jurors’ discus-
sions deprived them of a fair trial. We will analyze each
of these issues in turn.
1. Anonymous Jury Empanelment
An “anonymous jury” is selected from a venire whose
members’ identifying information—such as names, oc-
cupations, addresses, exact places of employment, and
other such facts—has been withheld from the parties in
order to protect potential jurors and their families. United
States v. Crockett, 979 F.2d 1204, 1215 n.10 (7th Cir. 1992).
Empaneling an anonymous jury “raises the specter that
the defendant is a dangerous person from whom the
16 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
jurors must be protected” and potentially deprives de-
fendants of information that could be used in making
juror selections during voir dire. United States v.
Mansoori, 304 F.3d 635, 650 (7th Cir. 2002) (quoting United
States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994)). Accord-
ingly, the use of anonymous juries is discouraged, and
courts should be “highly circumspect in ordering the
empanelment of anonymous juries.” Ross, 33 F.3d at
1522. But we have never held that it is presumptively
inappropriate to rely on anonymity. If the district court
concludes both that the circumstances strongly suggest
that the jury needs protection and also that reasonable
precautions—such as preliminary comments to the venire
and instructions before deliberations—can mitigate any
prejudice to the defendants, an anonymous jury may
be empaneled. Crockett, 979 F.2d at 1216-17.
Over the Defendants’ objection, the district court
granted the government’s motion for an anonymous jury
in this case, withholding the names, addresses, and other
identifying information of the members of the venire. The
district court did not enter its findings on the record, but
instead ordered an anonymous jury from the bench:
“I believe that is correct. So I am going to order an anony-
mous jury over the objection of all the defendants.” (Tr.
3/18/08 at 11.) The Defendants argue on appeal that
the lack of explicit findings renders the empaneling
inherently erroneous for two reasons. First, they con-
tend that an on-the-record determination of why an
anonymous jury is necessary is fundamental to pro-
tecting their rights to a fair trial and an impartial jury.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 17
09-3347, 09-3603 & 09-3653
Second, they contend that any reliance on Judge Castillo’s
reasoning in the Benabe trial was inappropriate in this
case because his reasons were not mentioned by the
district court and are not part of the record on appeal.
We review the decision to use an anonymous jury only
for an abuse of discretion, Mansoori, 304 F.3d at 650,
remaining particularly deferential to the district court’s
substantial discretion in this area, Crockett, 979 F.2d
at 1215-16.
We agree that the district court should have stated
its reasons for granting the government’s motion on
the record. See Mansoori, 304 F.3d at 651. “Some state-
ment of the district court’s reasoning is necessary for this
court to be able to meaningfully review its decision,”
United States v. Marion, 590 F.3d 475, 477 (7th Cir. 2009),
and the ruling we quoted from the district court’s status
hearing did not contain much to indicate its reasons.
Accordingly, the district court erred by granting the
government’s motion for an anonymous jury without
stating its reasons for doing so on the record.
That error is not dispositive of the matter, however, as
it may be harmless in light of the complete record of this
case. See Fed. R. Crim. P. 52(a); Mansoori, 304 F.3d at 651-
52. Indeed, the context of the district court’s statement
quoted above does provide us with the information
necessary to review the propriety of empaneling an
anonymous jury. (Tr. 3/18/08 at 7-11.) The district court
was holding a status hearing in which it consid-
ered several pre-trial motions in the Defendants’ case,
18 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
including the government’s motion to empanel an anony-
mous jury. The government and defense counsel were
arguing the merits of the jury’s anonymity, referring to
written materials they submitted to the district court and
to the proceedings and reasoning in the Benabe trial.
The district court indicated its familiarity with the mate-
rials and arguments already submitted in the case, as
well as the arguments before and decision by Judge
Castillo in Benabe. The district court then correctly
noted that “[t}he issue obviously is there is a certain
prejudicial implication which has been raised and it
was rejected by Judge Castillo on the basis that he
believed that appropriate jury instructions could solve
that.” (Tr. 3/18/08 at 8.)
In response to defense counsel’s arguments regarding
the inherent prejudice of an anonymous jury, the gov-
ernment indicated that in the Benabe trial the jury
did not manifest prejudicial fear of the defendants
because “they thought that their names were being with-
held to keep them safe from the press as opposed to
anybody else.” (Tr. 3/18/08 at 10.) The government also
noted that its multiple filings regarding the danger
posed by the Deuces showed that concerns of
danger applied to the Defendants just as readily as their
accused co-conspirators in the Benabe trial. The govern-
ment concluded that any potential prejudice could be
mitigated by the court’s handling of the jury panel. It
was to these arguments, and to the latter statements in
particular, that the district court responded, “I believe
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 19
09-3347, 09-3603 & 09-3653
that is correct,” before ordering an anonymous jury.
(Tr. 3/18/08 at 11.)
Reviewing these arguments, the government’s written
motion, and the entire record of the case, we conclude
that the district court’s error in failing to articulate its
reasons for empaneling an anonymous jury was harmless.
See Mansoori, 304 F.3d at 651-52 (finding an erroneous
anonymous jury empanelment harmless in a close case).
The Defendants argue that the anonymity was harmful
because it was not justified by the records and because
it deprived them of a fair trial in two ways: it affected
their ability to use peremptory challenges and it created
an undue presumption that the defendants were danger-
ous. We find the Defendants’ arguments unconvincing
in light of the circumstances of their case.
We acknowledge that jury anonymity is warranted
only where strong reasons lead the court to believe that
the jury needs protection. See Crockett, 979 F.2d at 1215-16.
In its motion, the materials referenced therein, and its
arguments at the status hearing, the government fully
articulated its view of the reasons below, discussing
in detail the multiple factors that the Defendants
advocate on appeal. See Mansoori, 304 F.3d at 650-51. As
the indictments indicated, there was good reason to
believe that the Defendants were involved in organized,
violent crime. Several of the Aurora Deuces remained
unindicted, and at least one indictee was still a fugitive
at the time of trial, raising the clear inference that the
gang remained capable of carrying on its violent activities
20 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
despite the incarceration of the Defendants. The gov-
ernment indicated that it would present evidence, as it
did in the Benabe trial, that the Deuces conspired and
attempted to kill two of the gang’s members the Deuces
suspected of cooperating with law enforcement. The
government also planned to present evidence that the
Deuces attempted to murder Rivera in 2003 in retalia-
tion for his known cooperation. Clearly there were sub-
stantiated allegations that the Defendants had acted with
violence to interfere with the judicial process; it is not
unreasonable, given the gang’s history and capacities, to
infer that it might use violence again to influence or
harass the jury. The Defendants uniformly faced profound
sentences, each having the potential of a life sentence,
except for Handley’s twenty-year potential. While long
sentences are not uncommon in narcotics cases, life sen-
tences clearly are among the most severe that can be
imposed. The arrests of the Aurora Deuces—and the
trial of seven of them in the Benabe trial—garnered
news media and internet coverage. The district court
had these arguments and supporting case law before it
when considering the government’s motion.
On appeal, the Defendants do not convincingly under-
mine the validity of these points. They argue that the
government did not mention any situations where any
Deuce had attempted to interfere with jurors and that
there was no evidence that juror intimidation was likely.
They do not, however, address the allegation that
Deuces attempted to murder Rivera after several of them
were arrested and learned that he was a cooperating
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 21
09-3347, 09-3603 & 09-3653
witness. Nor do they acknowledge the resulting, rea-
sonable inference that jurors may be as susceptible as
cooperators and witnesses to their gang’s violent acts. See
United States v. Edmond, 52 F.3d 1080, 1092 (D.C. Cir. 1995)
(per curiam) (“[A] general willingness to obstruct justice
on the part of a defendant or his associates[ ] is more
than adequate to suggest a real possibility that a defendant
will threaten or otherwise tamper with jurors.”). While
the ability and incentive to threaten jurors alone are not
enough to warrant an anonymous jury, Mansoori, 304
F.3d at 651, we conclude that an evidenced history
of interference with the administration of justice—added
to the gang’s ability and incentive—would bring a
case within the district court’s discretion to empanel an
anonymous jury, see Crockett, 979 F.2d at 1216; Edmond,
52 F.3d at 1091-92; United States v. Vario, 943 F.2d 236,
241 (2d Cir. 1991). The anonymous jury jurisprudence
of this and other circuits does not require proof of im-
pending harm to jurors; rather, it only requires reason
to believe that jury protection is necessary. See, e.g.,
Mansoori, 304 F.3d at 651 (evidence of accused’s unusu-
ally profound pattern of violence could cause jurors
to fear for their safety); United States v. DiDomenico, 78
F.3d 294, 301-02 (7th Cir. 1996) (protection through ano-
nymity appropriate to prevent tampering by organized
criminals with history of bribery); Edmond, 52 F.3d at 1091
(history of jury tampering sufficient, but not necessary,
to ascertain a threat to jurors from the charges in the
indictment).
We also note that the district court did not stop with
a decision to empanel an anonymous jury; rather, it
22 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
took efforts to mitigate any potential prejudice arising
from the jurors’ anonymity. Unlike in Mansoori, see 304
F.3d at 652, here the district court instructed the jury
venire that their names were being withheld to prevent
out-of-court contact, not out of concern for juror safety:
“[T]he reason why we are selecting the jury in this par-
ticular way without disclosing names or specific
addresses is because we have an ironclad rule that no
participant can contact a juror for any reason and the
jurors are not to contact any participant. So in order to
make sure that no one contacts you we are not having
your name disclosed.” (Tr. 10/06/08 at 218.) In its pre-trial
hearing, the district court agreed with the government
that this kind of admonition helped limit any prejudicial
impact of anonymity. See Crockett, 979 F.2d at 1216-17.
The district court also engaged in a thorough voir dire
of the venire, a procedure we have held may adequately
protect the fundamental right to an impartial jury. Id. at
1217; Mansoori, 304 F.3d at 652. The district court ques-
tioned the panel members at length, and the members
did provide general information about their professions
and residence neighborhoods. At the beginning and
close of trial, the district court also reminded the empan-
eled jurors of the presumption of innocence, in part
to dispel any prejudice that anonymity might have en-
gendered. See Mansoori, 304 F.3d at 652. The Defendants
argue that the juror anonymity prevented their effective
use of peremptory challenges, but they neither argue
that the voir dire or instructions were inadequate nor
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 23
09-3347, 09-3603 & 09-3653
address the effectiveness of the district court’s mitigating
efforts.
In summary, we find that the district court erred
by ordering the use of an anonymous jury without ar-
ticulating its reasons for doing so. Nevertheless,
Judge Leinenweber’s decision was well informed by
argumentation and briefing, as well as by Judge Castillo’s
thorough treatment of the issue in—and his experiences
during—the antecedent Benabe trial. The record demon-
strates that the circumstances of this case fulfill each of
the factors we have identified as informing the anonymity
decision. Further, the district court undertook several
measures to mitigate any potential prejudice arising
from the jurors’ anonymity. As “we can discern no
concrete way in which the anonymous jury deprived the
[D]efendants of a fair trial,” id., we conclude that the
district court’s error was harmless.
2. Denial of Severance Motions
The district court initially severed the Defendants from
their alleged co-conspirators in the Benabe trial, reducing
the number of defendants in each case from fourteen to
seven. This initial severance was a Solomonic compromise
between the numerous and mutually exclusive severance
proposals advanced by various defendants. Naturally, it
was neither a perfect solution nor a pleasing one for
the Defendants who sought individual trials. After a
mistrial was declared as to Crowder due to a hung jury
in the Benabe trial, the district court granted the govern-
24 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
ment’s motion to add him as a defendant in this case.
Following this addition, and again after some defense
counsels’ opening statements, and then throughout trial,
several of the Defendants renewed their severance mo-
tions; the district court denied each motion in turn.2
On appeal, Handley, Lechuga, Rodriguez, and Crowder
argue that the erroneous denials of their individual
severance motions unduly prejudiced them. They
request new trials where they would each be tried indi-
vidually.
The Defendants do not challenge the propriety of the
initial joinder of each Aurora Deuce indicted in 2006 in
a single trial. See Fed. R. Crim. P. 8(b). Rather, they
contend that the joinder of so many defendants—fourteen
at the outset and even eight in their resulting trial—was
inherently prejudicial and warranted discretionary
relief from the district court. The Federal Rules of Crim-
inal Procedure allow a district court to separate de-
2
There is some dispute over whether the Defendants renewed
their severance motions at the end of the evidence, as required
by case law to avoid waiver. See United States v. Alviar, 573
F.3d 526, 538 (7th Cir. 2009). We assume for our analysis that
the motions were all renewed, based on the district court’s
statement in response to a defense counsel’s inquiry: “I assume
that at the conclusion of all the evidence all motions have
been re-raised by the defendants, and for the reasons stated
earlier, they are all denied.” (Tr. 11/20/2008 at 4188.) The
severance issue was therefore not waived by any of the
four Defendants arguing it as a ground for reversal.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 25
09-3347, 09-3603 & 09-3653
fendants or counts in light of possible prejudice: “If the
joinder of offenses or defendants in an indictment, an
information, or a consolidation for trial appears to preju-
dice a defendant or the government, the court may
order separate trials of counts, sever the defendants’
trials, or provide any other relief that justice requires.” Fed.
R. Crim. P. 14(a). As the permissive language of the rule
indicates, the decision whether to grant a defendant’s
severance motion under Rule 14 is discretionary, and
we review the district court’s denial of such a motion
for an abuse of discretion. United States v. Alviar, 573
F.3d 526, 539 (7th Cir. 2009). We will reverse the convic-
tion on severance grounds only if actual prejudice
resulted from the denial of the severance motion, United
States v. Lopez, 6 F.3d 1281, 1285 (7th Cir. 1993), and
such prejudice requires that the defendant have been
deprived of a fair trial, not merely a better chance at
acquittal than an individual trial may have afforded,
United States v. McAnderson, 914 F.2d 934, 948 (7th Cir.
1990).
When alleged co-conspirators are indicted together, as
they were here, there is a strong preference that they be
tried together. Zafiro v. United States, 506 U.S. 534, 537-38
(1993); Alivar, 573 F.3d at 539. Considerations of judi-
cial economy, consistency of verdicts, and systematic ef-
ficiency inform this preference, Zafiro, 506 U.S. at 539, as
“[o]ur system of criminal justice would crumple beneath
the weight of individual trials if every defendant who
demanded severance was provided one,” McAnderson, 914
F.2d at 949. But we acknowledge that defendants may
26 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
face some prejudicial spillover in large complex cases,
and we therefore expect district courts to balance the
risk to defendants who move for severance against
the benefits gained by joint trials. Id. District courts
should continue to evaluate the risk of undue prejudice
resulting from joint trials throughout the proceedings.
United States v. Harris, 761 F.2d 394, 400 (7th Cir. 1985).
In the end, however, “Rule 14 does not require
severance even if prejudice is shown; rather, it leaves the
tailoring of the relief to be granted, if any, to the district
court’s sound discretion.” Zafiro, 506 U.S. at 538-39.
Alternative mitigative measures, including limiting
instructions, may suffice to offset prejudice where sever-
ance would be too drastic of a remedy. Id. at 539.
On appeal, four of the Defendants allege undue preju-
dice, in that the joint trial raised the likelihood that
they were convicted based on mere association with
their co-defendants rather than on their own culpability.
In general, the four argue that the logic behind Judge
Castillo’s initial severance of the fourteen-defendant
trial into two separate trials applied with equal force
to their resulting eight-defendant grouping. The trial
lasted longer than two months, the indictment covered
a period of three years, and the acts of exceedingly
violent men were discussed at length. Specifically, the
four contend that the district court abused its discretion
in denying their severance motions despite the risk of
evidence pertaining only to other defendants spilling
over to them in the eyes of the jury—a risk that is height-
ened in large multi-defendant trials. See Zafiro, 506
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 27
09-3347, 09-3603 & 09-3653
U.S. at 539. We will consider each of their arguments
independently, mindful that “a district court should
grant a severance under Rule 14 only if there is a serious
risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.”
Id. Our touchstone is the jury’s capacity to follow its
instructions and consider the evidence as to each defen-
dant independently. United States v. Hedman, 630 F.2d
1184, 1200 (7th Cir. 1980).
Handley sought an individual trial (or a narrow
grouping with Lechuga and Rodriguez) because he (and
the other two) were not accused of any murder or at-
tempted murder. He argues that the district court ac-
knowledged the possibility of prejudice but denied
his severance motion in deference to judicial econ-
omy—despite the fact that no economy was actually
realized through the joint trial. He further contends,
without reference to any precedent, that it is obviously
prejudicial to subject a defendant to a trial almost
two months longer than an independent trial would
have been. He touts his minimal involvement in the gang,
as signified by a general lack of testimony about him
particularly, the lack of drug charges against him, and the
standing punishment order against him for his poor
participation in the gang’s activities. He concludes that
he was highly prejudiced by spillover evidence, given
the great disparity of the evidence against him compared
to that against his co-defendants.
28 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
We have repeatedly rejected similar arguments, noting
that where the evidence against the appellant sufficed
to convict him of the charges against him specifically,
jury instructions and other mitigative measures sufficed
to limit prejudicial spillover and rendered the severance
denial proper. See, e.g., Alviar, 573 F.3d at 539 (“[T]he fact
that the government has greater evidence against one
co-defendant does not automatically give the other defen-
dant grounds for severance.”); United States v. Serpico,
320 F.3d 691, 696 (7th Cir. 2003); McAnderson, 914 F.2d at
949; Hedman, 630 F.2d at 1200. Here, Handley stood
charged only with racketeering conspiracy, and he
denied only his participation in the conspiracy while
conceding his knowledge of its existence. Recordings
and testimony at trial implicated him directly in the
conspiracy; although this evidence might have been
susceptible to multiple interpretations, it was sufficient
to sustain Handley’s conviction. See United States v.
Caliendo, 910 F.2d 429, 438 (7th Cir. 1990); United States
v. Hall, 212 F.3d 1016, 1023 (7th Cir. 2000) (“Merely
ceasing participation in the conspiracy, even for extended
periods, is not enough.” (quoting United States v. Bafia, 949
F.2d 1465, 1477 (7th Cir. 1991)). Further, his claim that
he would not have been convicted in the absence of
evidence admitted in the trial that would have been
irrelevant and inadmissible in a separate trial is under-
mined by the jury’s inability to reach a verdict regarding
his co-defendant Perez. Like Handley, Perez was not
charged with the murder and narcotics conspiracies,
and the jury demonstrated its capacity to act on its
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 29
09-3347, 09-3603 & 09-3653
limiting evidentiary and deliberation instructions by
giving individual consideration to the defendants and
the evidence against them. See Alviar, 573 F.3d at 539
(“There was no actual prejudice to [the defendant] on
account of ‘spillover’ evidence because the jury distin-
guished between him and his co-defendants.”).
The bottom line is that Handley’s simple disparity-in-
the-evidence argument does not render the district
court’s disposition of his severance motion erroneous. The
evidence presented against him was sufficient to support
his conviction,3 the more robust evidence against his co-
defendants notwithstanding. And the insufficiency of
his disparity argument applies to both the quantity
of the evidence against his co-defendants as well as its
nature (describing violent acts). The jury was instructed
to consider each defendant’s case independently, and
we assume that it heeded those instructions even
though Handley argues that he was the smallest player
in this drama. See McAnderson, 914 F.2d at 949. Indeed,
the record strongly suggests that the jury did follow
its instructions, given the individualized verdicts it re-
turned.
Lechuga also argues that the denial of his severance
motion exposed him to undue prejudice. Like Handley,
3
Handley does not separately develop an argument, in either
the joint brief or his own independent brief, that the evidence
was insufficient to convict him of racketeering conspiracy. His
arguments are confined to the alleged severance error, and
we confine our analysis accordingly.
30 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
he argues that he was not indicted on any acts of
violence and that the evidence of his co-defendants’ acts
of murder and assault tainted his case. He also contends,
however, that he had withdrawn from the conspiracy
in the mid-1990s. He therefore argues that, by refusing to
sever him from the Defendants’ trial, the district court
prejudiced the jury against him in three ways. First, the
evidence of his co-defendants’ violent acts could not
have been introduced against him in a separate trial,
where he would have stipulated to many of the facts
the government sought to prove in this trial. Second, he
claims that there would have been no reason to empanel
an anonymous jury in a separate case because he was not
accused of violent acts. Third, a post-arrest statement
from his co-defendant Morales, stating that Morales
and other Senior Deuces were rolled back to Junior
status, was inconsistent with his theory of defense
and would not have been admissible in a separate trial
against him.
Lechuga’s defense—unique among the Defendants—
does not change the outcome of our severance analy-
sis. The acts of violence forming the backbone of the
gang’s racketeering activities would have been admis-
sible against Lechuga in a separate trial, even if he were
not accused of perpetrating those acts himself. Further,
he cites no authority suggesting that his withdrawal de-
fense would preclude the introduction of this competent
evidence, see Zafiro, 506 U.S. at 540 (“[A] fair trial
does not include the right to exclude relevant and compe-
tent evidence.”), and even his alleged willingness to
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 31
09-3347, 09-3603 & 09-3653
stipulate would not necessarily bar the government from
proving its case as it chose, see United States v. Phillippi, 442
F.3d 1061, 1064 (7th Cir. 2006); United States v. Conner, 583
F.3d 1011, 1022 (7th Cir. 2009). Further, Lechuga’s with-
drawal defense was quite uncertain; his recorded state-
ments, far from showing an affirmative act to with-
draw, indicated that he was willing to participate in the
Deuces’ activities during his purported withdrawal:
“I’ve told some of you in the room before that, hey, if
there’s somethin’ I can do . . . I’ll help you out.” While he
claims to have been inactive for some time, “[h]is not
taking actions in furtherance of the conspiracy is not the
same as taking affirmative action to withdraw.” United
States v. Wren, 363 F.3d 654, 665 (7th Cir. 2004), vacated on
Booker grounds sub nom. Yarbor v. United States, 543 U.S.
1101 (2005); see also Hall, 212 F.3d at 1024. Accordingly,
his planned withdrawal defense did not distinguish
his case from Handley’s, so Lechuga cannot show
prejudice requiring severance as a result of the evidence
of his co-conspirators’ violence. See United States v.
Handlin, 366 F.3d 584, 591 (7th Cir. 2004).
Lechuga’s second argument is likewise without merit.
The violent tendencies of the individual on trial are not
the sole determinant for jury anonymity. See Mansoori, 304
F.3d at 650-51. While Lechuga himself was not accused
of any discrete acts of violence in the indictment, he
tacitly admits that the organization engaged in violence,
referring to “numerous senseless acts of violence com-
mitted by other younger, active members of the Insane
32 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
Deuces” and describing his co-defendants as “those
who terrorized the streets of Aurora.” As discussed
above, some of the Aurora Deuces remained on the
street, and one of the gang’s purposes was to protect
its members after they are arrested and if they are incar-
cerated. The sufficient reasons for empaneling an anon-
ymous jury in this case may have applied, even if not
as strongly, in an independent trial for Lechuga or for
any smaller subset of the Defendants.
The admission of Morales’s statement—that he and
other Senior Deuces had been rolled back to Junior
status—also did not require severance at Lechuga’s
request. To succeed on this point, Lechuga must “rebut
the dual presumptions that a jury will (1) capably sort
through the evidence and (2) follow instructions from
the court to consider each defendant separately.” Lopez,
6 F.3d at 1286. His only argument was that the state-
ment was inconsistent with his withdrawal defense
and was therefore prejudicial. But neither Morales’s
statement nor the testimony introducing it mentioned
Lechuga by name, and recordings of Lechuga’s own
words demonstrated his reinvolvement in the gang’s
activities in 2002. Even if Lechuga’s withdrawal defense
had some merit, any minimal prejudice arising from
the introduction of Morales’s statement was adequately
tempered by the district court’s repeated instruction that
Morales’s statement was to be considered only against
Morales. See United States v. Marshall, 75 F.3d 1097,
1105 (7th Cir. 1996).
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 33
09-3347, 09-3603 & 09-3653
We next consider Rodriguez’s allegation of substantial
prejudice from the severance denial. He proposed three
separate trial groupings of the indictees before ultimately
seeking an independent bench trial of his own. Like
Handley and Lechuga, he argues that the evidence
against his co-defendants prejudiced him and that an
anonymous jury would not have been necessary in his
various proposed separate trials. As these arguments
are indistinguishable from his co-defendants’, we reject
them based on our earlier analysis. Rodriguez’s only new
argument is that, five times during the trial, witnesses
and government counsel referred to him (Miguel Rodri-
guez) as Miguel Martinez.4 Rodriguez argues that these
misstatements prejudiced the jury against him because
the jurors could have confused his culpability with Marti-
nez’s greater culpability.
We can see neither how an individual trial would have
prevented such unintentional misstatements nor how
the jury could have confused Rodriguez with a fugitive
who was not before the court. Of the five misstatements,
one was immediately corrected by the witness, another
was promptly corrected on counsel’s objection, and the
remaining three were not brought to the court’s attention.
There is no indication that these understandable and
fleeting misnomers were intentional or related to the
4
Martinez was another Insane Deuce charged in the same
2006 indictment as Rodriguez. He was not at trial because
he remained at large during the proceedings.
34 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
presence of the several Defendants in the trial. Further,
Martinez was charged with nine murders or attempted
murders while Rodriguez was charged with no violent
acts, and Martinez was not tried in the same proceeding.
Despite Rodriguez’s assertion to the contrary, the jury
did not have an “impossible” or “insurmountable” task
in distinguishing Rodriguez from Martinez during its
deliberations. Accordingly, the district court did not
abuse its discretion by denying Rodriguez’s severance
motions.
Crowder is the last appellant alleging actual prejudice
from the district court’s denial of his severance motion.
He was grouped with the Defendants after the jury was
unable to reach a verdict on the charges against him in
the preceding Benabe trial. He argues that he was not an
official Insane Deuce, while “each defendant in the
second trial was an Insane Deuce gang member whose
responsibility was to engage in all gang activities in-
cluding selling drugs and shooting rival gang members.” 5
(Appellants’ Joint Br. at 56.) According to Crowder, his
inclusion with the Defendants subjected the jury to evi-
5
We pause to note that the Defendants repeatedly intonate
that they were merely gang members and that membership
cannot constitute a crime—such as racketeering conspir-
acy—without more. Interestingly, all of the Defendants joined
in this brief without excepting any portion of it, and the
quoted admission carries rather persuasive force that mem-
bership in the Aurora Deuces was, in fact, membership in
a racketeering enterprise.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 35
09-3347, 09-3603 & 09-3653
dence of his myriad violent acts that were extraneous to
the Insane Deuces’ activities and to evidence of his co-
defendants’ acts that did not involve him. This evidentiary
overlap, he concludes, left the jury unable to distinguish
between his non-gang-related violent acts and his partici-
pation in the racketeering conspiracy. As his counsel
summarized during oral argument, Crowder was “one
of the most violent individuals in this case. . . . [T]he
absence of violence of his co-defendants made him
appear much more heinous and increased the likelihood
that the jury would take that into consideration and
not appropriately examine his intent or agreement to
join the conspiracy.”
Crowder’s argument, despite being creative, is uncon-
vincing. While he might not have formally been an
Insane Deuce, the relevant question was whether he
had joined the racketeering conspiracy. The govern-
ment’s theory was that the shootings Crowder commit-
ted were intended to benefit the Deuces, were part of the
racketeering conspiracy, and were examples of Crowder
merely mistaking the victims for Latin Kings. Crowder’s
argument that these were unrelated acts calls into
question the weight of the evidence presented by the
government, not its admissibility or prejudicial impact. It
was the province of the jury to determine whether the
evidence against Crowder indicated that he was acting
as a member of the racketeering conspiracy. Further,
others among the Defendants stood accused of violence
in their own actions, including a plot to kill an Aurora
Deuce suspected of cooperating with authorities and
36 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
two murders in retaliation against Latin Kings. Even if
we were inclined to hold that a violent actor could be
prejudiced by juxtaposition with his (comparatively)
benign co-conspirators in a joint trial, Crowder’s circum-
stances simply do not fit that mold. Accordingly, the
district court did not abuse its discretion in denying
Crowder’s motion to sever.
3. Juror Misconduct Allegations
After the jury returned its verdicts on the Defendants
(and reported that it could not reach a verdict as to
Perez), the district court received a note from one of the
jurors. Juror 107 alleged that, for about three weeks
during the government’s case-in-chief, some of the jurors
had violated the district court’s instruction not to
discuss the case among themselves prior to deliberations:
“I spoke to some of the loud & boisterous jurors . . . about
making remarks about witnesses, attorney’s [sic] and
discussing the case. . . . Jokes and other inferences about
the case were made.” The Defendants moved for an
immediate mistrial, and the district court denied the
motion, recommending that defense counsel file a written
motion and that the district court would then decide
whether a hearing would be necessary. After considering
written submissions from the government and defense
counsel, and the Defendants’ accompanying motion for
a new trial based on jury misconduct, the district court
declined to hold a hearing and denied the Defendants’
motion. The district court reasoned that there was no
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 37
09-3347, 09-3603 & 09-3653
allegation of external influence on the jury and that no
circumstance in the case justified departure from the
general rule that post-verdict interrogation of jurors is
inappropriate when only internal pressures or pre-
mature deliberations are involved.
The Defendants appeal the district court’s decision to
not hold a hearing, claiming that the jury’s alleged prema-
ture discussions denied them a fair trial. While the De-
fendants acknowledge that the district court could not
inquire into the jury’s or a juror’s thought process, see
Fed. R. Evid. 606(b), they argue that a hearing to dis-
cover whether premature deliberations occurred and, if
so, the extent of those deliberations would not invade
any territory protected by Rule 606. See United States v.
Resko, 3 F.3d 684, 692 (3d Cir. 1993) (“Although the
district court expressed concern that if it engaged in
any colloquy with the jurors it might invade their delib-
erative process, the court could have easily tailored
a colloquy to elicit information about the jurors’ impartial-
ity without so intruding.”). We review a district court’s
handling of allegations of premature deliberations and
juror bias for an abuse of discretion. United States v.
Moore, 641 F.3d 812, 830 (7th Cir. 2011); United States
v. Vasquez-Ruiz, 502 F.3d 700, 704 (7th Cir. 2007).
The Defendants compare their case to two federal cases,
suggesting they compel a reversal here. First, they liken
their case to Oswald v. Bertrand, a habeas corpus case
in which we held that the trial court’s failure to
investigate pervasive allegations of bias among venire-
38 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
persons was erroneous. 374 F.3d 475, 483-84 (7th Cir. 2004).
The Defendants argue that the trial court’s refusal to
inquire further of one panel member and others in
Oswald parallels the district court’s refusal to question
jurors in their case. Second, they liken their case to Resko,
in which the Third Circuit reversed the appellant’s con-
viction because the district court did not investigate
the nature and extent of jurors’ pre-verdict discussions
of the case. Resko, 3 F.3d at 686. There, a juror alerted a
court officer on the seventh day of a nine-day trial
that members of the jury had been discussing the case.
Id. The reviewing court noted six (somewhat overlap-
ping) policies behind prohibiting premature delibera-
tions in criminal cases, including both potential bias
toward the prosecution due to the presentation of the
government’s case first and also the risk of jurors
crediting one side’s evidence over the other due to the
natural human tendency to remain committed to a view
already expressed to others. Id. at 689-90. The district
court addressed the jury as a whole and distributed
questionnaires meant to gauge whether each juror had
discussed the case and whether each had formed an
opinion as to guilt or innocence of either defendant. Id.
at 688. The Third Circuit ultimately determined that,
“given the discovery that the jurors had all engaged in
premature discussions of the case, . . . this method
was inadequate to enable the [district] court to fulfill its
responsibility of providing an appropriate cautionary
instruction and of determining whether prejudice
resulted from the jury misconduct.” Id. at 691. The Defen-
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 39
09-3347, 09-3603 & 09-3653
dants argue that the district court’s failure to voir dire
jurors in this case after receiving the note compels a new
trial, just as circumstances in Oswald and Resko did.
We disagree. The Defendants overlook two funda-
mental distinctions between their case and those they
cite. First, the misconduct allegation here arose after the
general verdicts had been returned, whereas every case
they cited dealt with pre-verdict allegations and concomi-
tant opportunities to investigate the circumstances be-
fore the juries retired to deliberate. Second, the maj-
ority of their cited cases involved far clearer indications
of juror bias than were present here, where any potential
bias is a matter of sheer speculation.
As a preliminary matter, the government and the Defen-
dants agree that Juror 107’s note neither alleged nor
implied any external influence on the jury’s deliberations.
Accordingly, no presumption of prejudice arises, see
Remmer v. United States, 347 U.S. 227, 229 (1954) (external
communication, contact, or tampering with the jury
rebutably presumed to be prejudicial to the defendants),
and no hearing or investigation in which jurors are ques-
tioned was absolutely required, see United States v.
McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998) (“If outside
contacts may have affected the jury, due process requires
some form of hearing.”). We evaluate this case as a
matter of alleged intra-jury influence or misconduct. See
Vasquez-Ruiz, 502 F.3d at 705 (distinguishing the scope
of inquiry necessary based on lack of clarity whether
source of message was external or internal to the jury);
40 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
United States v. Kimberlin, 805 F.2d 210, 243-44 (7th Cir.
1986) (no per se abuse of discretion found in dis-
trict court’s decision not to conduct a hearing where
only intra-jury communications were alleged).
The allegations of intra-jury misconduct in this case
arose only after the jury returned its general verdicts as
to each of the Defendants. The Supreme Court has
warned against pervasive post-verdict inquiries into
juror misconduct:
There is little doubt that postverdict investigation
into juror misconduct would in some instances
lead to the invalidation of verdicts reached after
irresponsible or improper juror behavior. It is not
at all clear, however, that the jury system could
survive such efforts to perfect it. . . . [F]ull and
frank discussion in the jury room, jurors’ willing-
ness to return an unpopular verdict, and the com-
munity’s trust in a system that relies on the deci-
sions of laypeople would all be undermined by
a barrage of postverdict scrutiny of juror conduct.
Tanner v. United States, 483 U.S. 107, 120-21 (1987). Federal
Rule of Evidence 606(b) flatly prevents many inquiries
of jurors intended to impeach the jury’s verdict.6 The
6
“Upon an inquiry into the validity of a verdict or indictment,
a juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or to the
effect of anything upon that or any other juror’s mind or
(continued...)
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 41
09-3347, 09-3603 & 09-3653
Defendants acknowledge that none of the three areas of
permissible testimony specified by the rule apply in
their case, but they cite Kimberlin for the proposition
that the district court nevertheless could have asked
jurors about the alleged premature deliberations without
violating Rule 606(b). See Kimberlin, 805 F.2d at 243-44
(“We recognize that these communications between
jurors were allegedly made during the course of trial.
Hence, they are not literally included in the prohibition
of Rule 606(b) against testimony by a juror as to a state-
ment during the course of the jury’s deliberations.”).7
6
(...continued)
emotions as influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror’s mental
processes in connection therewith. But a juror may testify
about (1) whether extraneous prejudicial information was
improperly brought to the jury’s attention, (2) whether any
outside influence was improperly brought to bear upon any
juror, or (3) whether there was a mistake in entering the
verdict onto the verdict form. A juror’s affidavit or evidence
of any statement by the juror may not be received on a matter
about which the juror would be precluded from testifying.”
Fed. R. Evid. 606(b).
7
In their reply brief, the Defendants misrepresent what
Kimberlin held in their “quotation” of the case: “ ‘[Premature
deliberations] are not included in the prohibition of
Rule 606(b).’ United States v. Kimberlin, 805 F.2d 210, 243 (7th
Cir. 1986).” (Joint Reply Br. at 20.) We use scare quotes because
their substitution was misleading and because even without
(continued...)
42 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
The Defendants may be correct that the district court
could have inquired about whether the discussions oc-
curred and whether they constituted premature delib-
erations. But they ignore the remainder of Rule 606(b)
and our holding in Kimberlin when they state that “the
issue was whether there were premature discussions
of the evidence and then whether those discussions preju-
diced the defendants.” (Appellants’ Joint Br. at 64 (em-
phasis added).) Any inquiry as to bias arising from the
alleged premature deliberations would run afoul of
the Rule’s clear proscription: after the verdict is entered,
“a juror may not testify as to . . . the effect of anything
upon that or any other juror’s mind or emotions as influ-
encing the juror to assent to or dissent from the verdict . . .
or concerning the juror’s mental processes in connec-
tion therewith. ” Fed. R. Evid. 606(b). As we held in
Kimberlin, any “hearing would be fruitless unless these
statements, if made, would be presumed to be prejudi-
cial.” 805 F.2d at 244. For reasons we discuss below, we
decline to presume prejudice under the circumstances
of this case.
Our determination comports with the holdings of this
and other courts to have considered district courts’ obliga-
tions when allegations of jury misconduct arise after
7
(...continued)
the substitution it is not an accurate quotation, having omitted
a critical word. We advise counsel to observe their obligation
of candor to this court.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 43
09-3347, 09-3603 & 09-3653
the verdicts have been entered. In United States v. Stafford
we determined that a post-verdict motion for a hearing
regarding jury bias was too late, “as the defendants
would have been seeking testimony from a juror
designed to impeach the jury’s verdict without any basis
for supposing that the jury had been subjected to outside
influences.” 136 F.3d 1109, 1113 (7th Cir. 1998). In a
Sixth Circuit appeal with allegations of premature delib-
erations, the court noted that “if the case involves
an internal influence, [Rule 606(b)] does not permit the
post-verdict interrogation of jurors.” United States v.
Logan, 250 F.3d 350, 380 (6th Cir. 2001). See also United
States v. Caldwell, 83 F.3d 954, 956 (8th Cir. 1996) (“[Rule]
606(b) generally precludes the testimony of any juror
regarding intrajury communications, as well as the testi-
mony of a nonjuror regarding an intrajury statement.”).
Tellingly, the Defendants cite no case demonstrating
the necessity of ordering the hearing they seek here
based on intra-jury misconduct that comes to light after
the verdict has issued.
We also consider that Juror 107’s note only suggested
the possibility of premature deliberations (as opposed to
jokes, idle comments, or other generalized discussions),
and it contained no suggestion that the jurors were in
any way biased. By prohibiting premature deliberations,
we seek to protect a defendant’s right to a fair trial by
44 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
assuring jury impartiality,8 and that is the ultimate
inquiry of our analysis here. McClinton, 135 F.3d at 1186.
“The standard of impartiality is whether a juror can set
aside an impression or opinion and decide a case solely
on the evidence presented in court.” Id. at 1188. The intra-
jury discussions of the case certainly violated the
district court’s order, but that does not necessarily mean
that the jury’s objectivity was compromised. See Resko,
3 F.3d at 690 (“[W]hen there are premature deliberations
among jurors with no allegations of external influence
on the jury, the proper process for jury decisionmaking
has been violated, but there is no reason to doubt that
the jury based its ultimate decision only on evidence
formally presented at trial.” (emphasis added)).
As we held in Oswald, the adequacy of the judge’s
actions in the face of allegations of misconduct “is a
function of the probability of bias; the greater that proba-
bility, the more searching the inquiry needed to make
reasonably sure that an unbiased jury is impaneled.” 374
8
We note that fair trials and “premature deliberations” are not
always mutually exclusive. Some state court systems explicitly
allow private discussions of the case among jurors during
breaks in the trial, at least if the jurors are reminded to reserve
judgment until the actual deliberations begin. See, e.g., Ind.
Jury R. 20(a)(8); Ariz. R. Civ. P. 39(f). See generally Shari
Seidman Diamond et al., Juror Discussions During Civil Trials:
Studying and Arizona Innovation, 45 Ariz. L. Rev. 1 (2003)
(describing empirical research regarding the impact of rules
allowing jurors to discuss the trial as it progresses).
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 45
09-3347, 09-3603 & 09-3653
F.3d at 480. This is not a case like Oswald where “the
circumstances strongly suggested that the [venire] had
made up its mind that Oswald was guilty” before the jury
was even selected. Id. at 479. Rather, the “note in itself
could hardly be considered conclusive evidence of preju-
dice.” Stafford, 136 F.3d at 1112. And when the district
court considered these allegations, it had before it the
jury’s general verdicts that ran the gamut from guilty
through hung to not guilty. These split verdicts imply
that the jury reached independent conclusions as to
each defendant without making up its mind before the
close of the evidence. See United States v. Cuthel, 903
F.2d 1381, 1383 (11th Cir. 1990). In light of both the dif-
ferential verdicts and the vagueness of the note—either
of which might suffice to belay the need for a hearing in
a given case—the allegation of jury misconduct in this
case was not sufficiently substantial to warrant ques-
tioning the jurors about the content of the discussions. See
Stafford, 136 F.3d at 1112-13 (“Not every allegation of
jury misconduct is sufficiently substantial . . . to
warrant putting the jurors on the spot.”); Logan, 250 F.3d
at 378-79 (“[T]rial judges are afforded considerable dis-
cretion in determining the amount of inquiry necessary,
if any, in response to allegations of jury misconduct.”).
Because Rule 606(b) prohibits the very inquiry the De-
fendants requested, and because there was no clear
indication of juror prejudice in the circumstances of
their case, we cannot conclude that the district court
abused its discretion in declining to hold an evidentiary
hearing after it received Juror 107’s note.
46 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
In summary, the district court erred when it empaneled
an anonymous jury without specifying its reasons for
doing so, but that error was harmless because the cir-
cumstances clearly allowed for the use of an anonymous
jury. The district court did not abuse its discretion when
it denied the Defendants’ myriad severance motions.
Likewise, it was not an abuse of discretion to deny
their request for a hearing based on alleged juror mis-
conduct. Accordingly, none of the issues jointly pre-
sented by the Defendants lead us to conclude that new
trials are warranted. As Barbosa brings no other issues
on appeal, we will affirm his conviction. We next con-
sider the other Defendants’ independent issues.
B. Morales’s Separate Claim
Morales challenges his conviction,9 arguing that the
district court’s admission of statements about his criminal
history during the trial phase was erroneous because
he did not testify as Federal Rule of Evidence 609(a)(1)
requires for the admission of such evidence. We review
the district court’s evidentiary decision for an abuse of
discretion, disturbing the ruling only if no reasonable
person could agree with it. United States v. Dinga, 609
F.3d 904, 908 (7th Cir. 2010). Even if we find the ruling to
9
Although his brief does not specify which of his two con-
victions Morales appeals, he presents facts and arguments
pertaining only to the narcotics conspiracy charge. We there-
fore construe his challenge to pertain only to that charge.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 47
09-3347, 09-3603 & 09-3653
be erroneous, we will reverse the conviction only if
the evidentiary error was not harmless. Fed. R. Crim.
P. 52(a); United States v. Thornton, 642 F.3d 599, 604, (7th
Cir. 2011).
Morales did not testify during the trial, but the gov-
ernment introduced evidence of his own statements
made to agents after his arrest: “[Morales] said he had
gone in and out of the Illinois Department of Corrections
for narcotics-related offenses,” and “He said he went to
the Illinois Department of Corrections in 1995 for
delivery of cannabis.” The district court overruled Mo-
rales’s objection to the testimony. After the jury
returned its verdicts, Morales moved for a new trial
based on the admission of his criminal history. The
district court denied his motion, noting both that the
evidence was properly introduced to prove the Deuces’
activities in the prison system and also that any
erroneous admission could not justify a new trial be-
cause of the overwhelming evidence against him.
We likewise find that the challenged testimony could not
have affected the verdict at issue, so we need not deter-
mine whether the admission represented an abuse of the
district court’s discretion. See United States v. Simmons,
599 F.3d 777, 780 (7th Cir. 2010). Special Agent Mark
Anton testified as to statements Morales made during
an interview conducted after Morales’s arrest to assess
his potential as a cooperating witness. Among those
statements were comments—to which Morales did not
object—confirming that he had been “involved in
48 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
narcotics trafficking, and some of his proceeds or profits
from his narcotic trafficking would go to the Insane
Deuces.” (Tr. 11/13/08 at 3699.) Morales also told
Special Agent Anton that he was made the Junior
Enforcer on July 5, 2002, (Tr. 11/13/08 at 3702, 3704), and
that “all Insane Deuce gang members that were involved
in narcotics drug trafficking were expected to pay a part
of the proceeds into the caja, as well as any of the
Insane Deuce gang members that were high level
narcotic drug dealers,” (Tr. 11/13/08 at 3705). The admis-
sion of a statement that Morales had gone to jail for
delivering marijuana could not have affected the jury’s
decision-making process when his admission to having
engaged in the trafficking conduct for the Insane
Deuces’ benefit during the period alleged in the indict-
ment was already before the jury without any objection.
See United States v. Courtright, 632 F.3d 363, 370 (7th
Cir. 2011). Accordingly, we will not reverse Morales’s
conviction.
C. Rodriguez’s Separate Claims
Rodriguez presents three additional issues for our
review, challenging both his conviction and his sentence.
He first contends that, because the district court erred
by denying his motion for a judgment of acquittal on
the narcotics conspiracy charge against him, we must
reverse his conviction. Rodriguez then contends that
the district court erred in sentencing him by holding
him accountable for his co-conspirators’ actions and
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 49
09-3347, 09-3603 & 09-3653
by taking his previous conviction for possession of a
dangerous weapon into account both in calculating his
offense level and in determining his criminal history
points.
1. Sufficiency of the Evidence for Conviction
Rodriguez moved for a directed verdict at the close
of the government’s evidence, arguing that “as to the
drug conspiracy count, there ha[d] been no mention to
Mr. Rodriguez in any way.” (Tr. 11/17/08 at 3836.) Rodri-
guez renewed his motion after the Defendants rested,
filed a motion for a new trial and judgment of ac-
quittal after the trial ended, and then filed a supple-
mental motion for the same; the district court denied
each. Rodriguez now appeals the denial of his motions,
arguing that the government presented insufficient evi-
dence to prove that he agreed to join the drug conspiracy.
We review the district court’s denial of motions for a
judgment of acquittal de novo. United States v. Jones, 222
F.3d 349, 351 (7th Cir. 2000). In considering whether the
evidence was sufficient to sustain a guilty verdict, we
review it in the light most favorable to the government.
Id. at 352. We will overturn the verdict “only when the
record contains no evidence, regardless of how it is
weighed, from which the jury could find guilt beyond
a reasonable doubt.” United States v. Huddleston, 593
F.3d 596, 601 (7th Cir. 2010).
Rodriguez was convicted of conspiring to distribute
and possess with the intent to distribute controlled sub-
50 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
stances in violation of 21 U.S.C. §§ 841(a)(1), 846. To
sustain the conviction, the evidence must show that
Rodriguez either implicitly or explicitly agreed with
other Deuces to distribute narcotics or possess them
with the intent to distribute them. United States v. Vallar,
635 F.3d 271, 286 (7th Cir. 2011). In response to
Rodriguez’s motions, the government noted that Rodri-
guez participated in two Insane Deuce meetings where
the conspirators discussed the use of the caja for drug
fronting and the narcotics “free enterprise” system.
Rodriguez is correct that his awareness of the narcotics
conspiracy and his presence during conspiratorial discus-
sions do not suffice for a conspiracy conviction. United
States v. Taylor, 600 F.3d 863, 868 (7th Cir. 2010). But
Rodriguez was a long-term member of the gang (more
than a decade of active participation) who eventually
reached Senior status before being rolled back to Junior
status—and to its active requirements. He was well
aware of the functions and funding of the caja, he
accepted the gang’s rules about drug dealing, and he was
recorded advocating the free enterprise system. Rodri-
guez’s arguments that he was not a participant in the
trafficking and distribution of narcotics and that he was
merely aware of it “may have been valid arguments to
put before a jury, [but] they are not enough to support a
sufficiency of the evidence challenge on appeal.” Taylor,
600 F.3d at 869. The government was not required to
prove that Rodriguez personally bought, sold, or pos-
sessed any narcotics in order to obtain a conviction under
21 U.S.C. § 846, only that he agreed to the activities.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 51
09-3347, 09-3603 & 09-3653
See United States v. Bolivar, 532 F.3d 599, 603 (7th Cir.
2008); United States v. Johnson, 592 F.3d 749, 754 n.4 (7th
Cir. 2010). The totality of the evidence regarding Rodri-
guez’s membership in the gang, his participation in and
advocacy of its activities, and his enjoyment of the caja’s
benefits allowed a jury to conclude that he implicitly
agreed to the distribution of narcotics by fellow Insane
Deuces for the gang’s benefit. Although the decision is
close, we find that the district court did not err in
denying Rodriguez’s motion for a judgment of acquittal.
Accordingly, we will affirm his conviction.
2. Sentencing Challenges
Rodriguez challenges his sentence on two grounds. He
first contends that the district court erred in determining
his offense level by holding him accountable for his co-
conspirator’s violent acts and narcotics distribution
activities without making sufficient findings as to the
relevance of that conduct to his particular case. He then
contends that the district court impermissibly “double
counted” his illegal possession of a firearm by con-
sidering it while calculating his offense level and while
determining his criminal history category. These proce-
dural errors, he argues, mandate a resentencing. We
review the district court’s sentencing procedures, in-
cluding its calculation of the offense level and determina-
tion of the defendant’s criminal history category, de novo.
United States v. Nance, 611 F.3d 409, 412, 415 (7th Cir.
2010). We review any factual determination upon which
52 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
the district court relied in setting the offense level, such
as the amount of drugs attributable to a defendant, for
clear error. United States v. Winbush, 580 F.3d 503, 512-
13 (7th Cir. 2009).
In calculating a defendant’s offense level, the district
court considers not only the offenses of conviction but
also any conduct relevant to the offenses. U.S.S.G.
§ 1B1.3(a)(1)(B). Standing alone, Rodriguez’s convictions
on racketeering conspiracy and narcotics conspiracy
counts do not suffice to sentence him for all of his co-
conspirators’ actions. See United States v. Soto-Piedra, 525
F.3d 527, 531 (7th Cir. 2008) (“Conspiracy liability, as
defined in Pinkerton v. United States, 328 U.S. 640, 646-48
(1946), is generally much broader than jointly under-
taken criminal activity under § 1B1.3.”). Rather, those
actions must have been both in furtherance of the jointly
undertaken criminal activity and also reasonably fore-
seeable to Rodriguez. U.S.S.G. § 1B1.3(a)(1)(B); United
States v. Salem, 597 F.3d 877, 884-85 (7th Cir. 2010). This
determination requires the district court to “make a
preliminary determination of the scope of the criminal
activity the defendant agreed to jointly undertake.” Salem,
597 F.3d at 886.
Rodriguez challenges the sufficiency of the district
court’s findings regarding the scope of his jointly under-
taken activities and the foreseeability of his co-conspira-
tors’ criminal activities. In reaching the offense level
for his racketeering conspiracy conviction, the district
court held Rodriguez liable for all of the violent acts
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 53
09-3347, 09-3603 & 09-3653
perpetrated by and narcotics amounts distributed or
possessed by his co-conspirators. It did not, however,
explicitly state the basis for its finding that the scope
of Rodriguez’s undertaken activities was coextensive
with that of the Insane Deuce enterprise or the overall
narcotics conspiracy. Nor did it explicitly state that all
of the violent acts and drug quantities involved in the
Defendants’ case were foreseeable to Rodriguez.
During sentencing, Rodriguez never argued that his co-
conspirators’ acts were unforeseeable to him or outside
the scope of his jointly undertaken criminal activity. He
did object to being held liable for his co-conspirators’
violence, but his arguments—both in his written objec-
tion and at the sentencing hearing—had nothing to do
with his argument on appeal. His three arguments
below pertained only to: (1) whether he could be held
liable for his co-conspirators acts when the jury did not
specifically find he was personally involved in any of
them—a question well settled by the Sentencing Guide-
lines, see U.S.S.G. § 1B1.3, and case law, e.g., Salem, 597
F.3d at 884-85; (2) whether he could be held responsible
for acts perpetrated while he was in prison or in sen-
ior status—questions answered by the district court’s
findings that he had not withdrawn during those peri-
ods; and (3) an abandoned argument about the relia-
bility of the evidence upon which conspiratorial liability
may be found. Accordingly, we deem Rodriguez’s argu-
ments based on scope and foreseeability forfeited and
review his arguments only for plain error. See United
States v. Bell, 624 F.3d 803, 808 (7th Cir. 2010). We will
54 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
reverse only if there “was an obvious error that
seriously affected both [Rodriguez’s] substantial rights
and the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Long, 639 F.3d 293, 299
(7th Cir. 2011).
The district court considered and overruled Rodriguez’s
objections to the presentence report (PSR), and the tran-
script of the sentencing hearing clearly indicates that
the district court relied upon the PSR in determining
Rodriguez’s offense level and criminal history category.
After the sentencing hearing, the district court adopted
the PSR in its “Statement of Reasons” form attached to
its judgment. The PSR succinctly established that
the scope of Rodriguez’s jointly undertaken criminal
activity was coincidental with that of the Insane Deuce
enterprise overall. (Rodriguez PSR at 13.) It also made
clear that “each and every overt act of violence in con-
nection with the RICO conspiracy, although perhaps not
specifically agreed to by each and every defendant
on every specific occasion, was nonetheless reasonably
foreseeable to each and every defendant given the nature
of their joint RICO enterprise.” Id. Rodriguez did not
challenge either of these factors he now argues were
insufficiently addressed by the district court, and we
find that the district court did not plainly err by consid-
ering his co-conspirators’ acts in calculating Rodriguez’s
racketeering conspiracy offense level. See Long, 639 F.3d
at 300 (“Deficient findings of fact can be cured, at least
for purposes of plain error review, when the district
court adopts the PSR in its Statement of Reasons, the PSR
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 55
09-3347, 09-3603 & 09-3653
provides the necessary factual support for the sentence,
and the defendant had an opportunity to object to the
PSR’s findings.”).
Rodriguez’s arguments regarding his sentence for the
narcotics conspiracy are similar to those informing his
objection in the district court, but we need not deter-
mine whether plain or clear error review is appropriate
because the outcome is the same under either standard.
The district court found that the evidence presented at
trial easily proved that the narcotics conspiracy involved
a quantity of drugs corresponding to an offense level of
38. But the district court made no finding that the scope
of Rodriguez’s agreement was coextensive with the
entire narcotics conspiracy. Nor did the PSR contain such
a statement, as it did with the racketeering conspiracy
count. See Salem, 597 F.3d at 888 (“[E]ven if the court had
adopted the findings in the PSRs in this case at the time
of sentencing, the court’s factual findings would still be
deficient on a key element of the relevant conduct
analysis: the scope of the jointly undertaken criminal
activity.”). We find that the district court erred when it
found that the quantity of drugs involved in Rodriguez’s
narcotics conspiracy offense included all of the drugs
possessed or distributed by his co-conspirators with-
out having made the necessary findings. See U.S.S.G.
§§ 2D1.1(a) & cmt. 12, 1B1.3(a)(2).
Nevertheless, this error is harmless. As calculated by
the PSR, the adjusted offense level for Rodriguez’s racke-
teering conspiracy conviction (41) exceeded the adjusted
56 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
offense level for his narcotics conspiracy (38). (Rodriguez
PSR at 27.) His racketeering conspiracy conviction thus
controlled his combined offense level. See U.S.S.G. § 3D1.4.
As Rodriguez concedes, (Rodriguez Reply Br. at 9),
any error in computing the drug quantity thus would
not affect his guidelines range.
The same consideration renders Rodriguez’s final
sentencing argument moot. He argues that the district
court erroneously double-counted his possession of a
firearm in calculating his narcotics conspiracy offense
level and in setting his criminal history category.
Because his total offense level is based on his racketeering
conspiracy offense, no possibility of double counting is
presented. Accordingly, we will affirm his sentence.
D. Hernandez’s Separate Claims
Hernandez likewise challenges both his conviction and
his sentence. He first contends that the jury’s verdict,
finding him guilty of conspiring to distribute narcotics,
rested on insufficient evidence. He then contends that
the district court erred in sentencing him to life impris-
onment, alleging three infirmities with the district court’s
consideration of his case. Neither contention has merit.
1. Sufficiency of the Evidence for Conviction
Like his co-defendant Rodriguez, Hernandez was
convicted of conspiring to distribute and possess with the
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 57
09-3347, 09-3603 & 09-3653
intent to distribute controlled substances in violation of
21 U.S.C. §§ 841(a)(1), 846. Hernandez’s arguments are
even weaker than Rodriguez’s, and we easily conclude
that sufficient trial evidence showed that Hernandez
either implicitly or explicitly agreed with other Deuces
to distribute narcotics or possess them with the intent to
distribute them. Vallar, 635 F.3d at 286. Hernandez was a
long-standing gang member and participant (joining at
the age of twelve and rising to Junior status), he was
present in Insane Deuce meetings where drug dealing
using the Nation’s caja was discussed, he was recorded
requesting quantities of drugs for himself and his cousin,
he routinely used marijuana with other Deuces, and he
was filmed during a hand-to-hand transaction in which
he accepted money in exchange for a small package
and placed the money in his sock. The evidence that
Hernandez knew of the narcotics conspiracy was over-
whelming, leaving only a question of whether he agreed
to join it. See United States v. Longstreet, 567 F.3d 911, 918-
19 (7th Cir. 2009). That no evidence conclusively
proved that Hernandez personally bought, sold, or pos-
sessed any narcotics does not prevent a jury from
finding him guilty of violating 21 U.S.C. § 846. See
Bolivar, 532 F.3d at 603; Johnson, 592 F.3d at 754 n.4.
The jury could reasonably infer from the totality of
the evidence that Hernandez joined the Insane Deuces’
narcotics conspiracy. Accordingly, we will affirm his
conviction.
58 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
2. Imposition of a Life Sentence
Hernandez next contends that we must order a
resentencing because the district court wrongly sen-
tenced him to a term of life imprisonment. He first
argues that the evidence presented at trial and during
the sentencing hearing could not support the district
court’s upward adjustment of his offense levels based on
his co-defendants’ conduct (both their violent acts and
their distribution of narcotics). His second argument
focuses on the inclusion of four prior sentences in catego-
rizing his criminal history; he argues that the sentences
were based on activities relevant to the charged conspira-
cies and thus could not be separately counted to enhance
his sentence in this case. His third argument is that the
district court did not properly consider the sentencing
factors in 18 U.S.C. § 3553(a) because it ignored his argu-
ments about the factors. We find none of the arguments
convincing and dispose of them quickly.
As discussed in our analysis of Rodriguez’s sentence
above, the district court must consider conduct relevant
to the charged offense when calculating the guidelines-
recommended sentence range. See U.S.S.G. § 1B1.3; United
States v. Quintero, 618 F.3d 746, 755 (7th Cir. 2010). The
reasonably foreseeable actions of the other Insane
Deuces in the racketeering conspiracy can be attributed
to Hernandez for the purposes of sentencing, Quintero,
618 F.3d at 755, and the district court specifically
adopted Hernandez’s PSR and its findings during the
sentencing hearing, (Hernandez Sent. Tr. 48). The PSR, in
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 59
09-3347, 09-3603 & 09-3653
turn, clearly defined Hernandez’s scope of jointly under-
taken criminal activity to be the same as that of the Insane
Deuce racketeering conspiracy overall. (Hernandez PSR
at 14.) It also found that, despite Hernandez’s possible
ignorance of some of his co-conspirators’ violent acts,
each of the violent acts detailed in the report was rea-
sonably foreseeable to Hernandez due to the nature of
the enterprise he joined and actively participated in. Id.
Hernandez argues that some of those acts could
neither be foreseeable nor in furtherance of the conspir-
acy because they were random and involved victims
who were not rival gang members. But trial testimony
showed that these acts were undertaken out of mistaken
beliefs regarding the victims’ identities or affiliations;
in that sense the shootings were neither random nor
unforeseeable. Although some of the evidence presented
throughout trial and sentencing may have conflicted, the
district court was in the best position to determine what
information was most credible. It certainly had sufficient,
credible evidence before it to find by a preponderance
of the evidence that Hernandez embraced the entire
scope of the racketeering conspiracy’s activities and
foresaw the violent acts of his co-conspirators. Accord-
ingly, the district court did not clearly err in finding the
violent acts to be conduct relevant to Hernandez’s offense
under the Sentencing Guidelines.1 0
10
Based on that holding, we do not reach Hernandez’s argu-
ment that the district court clearly erred in determining the
(continued...)
60 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
Hernandez next argues that the district court should
not have counted four of his previously served sentences
in its determination of his criminal history category. He
asserts that the sentences were imposed for crimes that
occurred during the period of the racketeering con-
spiracy described in the indictment and that those crimes
involved conduct relevant to the conspiracy. He con-
cludes that these prior sentences should not have been
included in the court’s guidelines calculations. See U.S.S.G.
§ 4A1.2 cmt. n.1; Nance, 611 F.3d at 412-13 (“[W]hen
calculating a defendant’s criminal history, a district
court ordinarily cannot consider previous sentences for
acts that qualify as relevant conduct.”).
His argument is unavailing for two reasons. First, he
does not explain how his previous convictions—for
example, for aggravated battery of a school employee
and domestic battery of his girlfriend—were relevant to
his racketeering offense. Second, even assuming that
each sentence resulted from relevant conduct, the sen-
tences would still have been appropriately counted in the
criminal history computation. The guidelines recognize
10
(...continued)
drug quantities applicable to his offense level for his narcotics
conspiracy conviction. The adjusted offense level for his
racketeering conspiracy conviction (45) exceeded the adjusted
offense level for his narcotics conspiracy (38) as calculated by
the PSR. (Hernandez PSR at 28.) His racketeering conspiracy
conviction thus controlled his combined offense level. See
U.S.S.G. § 3D1.4.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 61
09-3347, 09-3603 & 09-3653
that a defendant may be convicted of racketeering based
in part on conduct for which he has already been con-
victed and sentenced. See U.S.S.G. § 2E1.1 cmt. n.4.
In such a case, if “the previously imposed sentence
resulted from a conviction prior to the last overt act of
the instant offense” the previously imposed sentence is
treated “as a prior sentence under § 4A1.2(a)(1) and not
as part of the instant offense.” Id. “In other words,
RICO presents an exception to the general rule of
§ 4A1.2(a)(1).” United States v. Garecht, 183 F.3d 671, 677
(7th Cir. 1999). Because Hernandez was personally
active in the racketeering conspiracy after the date of
his most recent criminal conviction in July 2002, the
district court did not err in including these four sen-
tences in his criminal history.
In his final sentencing issue, Hernandez accuses the
district court of having refused to consider all of the
sentencing factors contained in 18 U.S.C. § 3553(a). His
argument is meritless. After hearing Hernandez’s argu-
ments regarding the statutory factors at the sentencing
hearing, the district court addressed the factors, including
Hernandez’s difficult childhood, the circumstances that
allegedly drove him into the gang, the seriousness of the
offense, and the needs for protection and deterrence.
The district court also had reviewed and ultimately
adopted the PSR that recounted the family and substance
abuse information that Hernandez now contends the
district court ignored. Hernandez essentially argues
that the district court gave insufficient weight to facts
that might have counseled a lower sentence, but “it is
62 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
perfectly acceptable for courts to assign varying weights
to the [§ 3553(a)] factors as they deem appropriate in
the context of each case.” United States v. Busara, 551 F.3d
669, 674 (7th Cir. 2008). The district court adequately
considered the statutory factors and explained its
reasons for the sentence it imposed, and “[t]hat was all
it had to do.” United States v. Ashqar, 582 F.3d 819, 826-27
(7th Cir. 2009). Accordingly, we will affirm Hernandez’s
sentence.
E. Lechuga’s Separate Claims
Lechuga also challenges both his conviction and his
sentence, alleging that his “retirement” from the Insane
Deuces at age 35 effected a withdrawal from their con-
spiracies. He first contends that insufficient evidence
was presented at trial to allow a reasonable jury to find,
beyond a reasonable doubt, that he had rejoined the
racketeering or the narcotics conspiracy. He then
contends that, even if we affirm the convictions, we must
nevertheless remand his case for resentencing because
the district court erroneously found him liable for his co-
conspirators’ conduct and found him to be a career of-
fender. Neither contention has merit.
1. Sufficiency of the Evidence for Conviction
Lechuga contends that both his racketeering and nar-
cotics conspiracy convictions were based on insufficient
evidence. He characterizes the evidence presented at
trial as having proven only that he attended two Deuce
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 63
09-3347, 09-3603 & 09-3653
meetings in 2002 and, at most, discussed the possibility
of rejoining the gang. In light of the evidence he
presented regarding his previous withdrawal from the
gang in or around 1996, Lechuga argues that his at-
tendance at and his recorded statements in the two 2002
meetings could not possibly constitute evidence of his
joining either of the Insane Deuces’ racketeering or narcot-
ics conspiracies. We review the sufficiency of the evidence
in the light most favorable to the prosecution, and we
will affirm the conviction if any rational trier of fact could
have found, beyond a reasonable doubt, that Lechuga
fulfilled the essential elements of the conspiracies
charged. United States v. Durham, ___ F.3d ___, ___, 2011
WL 2535801, *5 (7th Cir. June 28, 2011).
Lechuga’s argument, at base, is that the government
did not prove that he had rejoined the Insane Deuces’
conspiracies after his earlier withdrawal, so the jury
lacked sufficient evidence on which to convict him. The
government and Lechuga dispute the nomenclature of
his status in the Insane Deuces before the summer of
2002; the government asserts that he was a Senior, but
Lechuga insists that he was retired. Regardless of the
appropriate classification, he was not heavily in-
volved in the Deuces in the five years preceding the
June 2002 roll-back meeting where Seniors were recalled
to Junior status. He argues that this inactivity constituted
his withdrawal from the conspiracy. Assuming without
deciding that Lechuga presented sufficient evidence of
his withdrawal to meet his initial burden of production,
the prosecution assumed the burden of proving either that
64 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
Lechuga’s withdrawal was insufficient or that he joined
the conspiracy anew after the roll-back meeting. United
States v. Starnes, 14 F.3d 1207, 1210 (7th Cir. 1994). If it
failed to do so, no rational jury could have convicted
Lechuga of the racketeering and narcotics conspiracies.
We easily conclude that sufficient evidence allowed the
jury to conclude that Lechuga’s alleged withdrawal
was ineffective or that he had rejoined the Deuces’ con-
spiracies. Even if Lechuga was “retired” and not a Sen-
ior, neither retirement from an organization nor mere
inactivity constitutes effective withdrawal from a con-
spiracy. United States v. Hargrove, 508 F.3d 445, 449 (7th
Cir. 2007). Effective withdrawal requires the conspirator
to take an affirmative act, either confessing to authorities
or clearly communicating to his co-conspirators that he
disavows the conspiracy and its criminal objectives. United
States v. Emerson, 501 F.3d 804, 811 (7th Cir. 2007). In his
own words, Lechuga remained willing to help the gang in
its endeavors during the period of his supposed with-
drawal; he never voiced his disassociation from the
gang, and he certainly did not cooperate with au-
thorities to disrupt its criminal activities.1 1
11
In his brief, Lechuga makes multiple references to having
retired in 1996. (Lechuga Br. at 15-16, 18, 30.) He even
alleges that he “formally declared his retirement from the
gang in 1996.” Id. at 30. But he does so without any citation
to the record, and we find no evidence that he ever announced
or declared his intentions to anyone.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 65
09-3347, 09-3603 & 09-3653
Even if the jury found his withdrawal effective at
some point preceding 2002, it could have found that he
rejoined the conspiracies. Lechuga makes much of the
fact that no evidence explicitly showed his involvement
after the second of two meetings in 2002, but the jury
could infer from his involvement in those meetings that
he joined the conspiracies anew. He took an active part
in the discussion of the gang’s business, asking about
promotions of Shorties to Juniors, inquiring about con-
tinued protection by the gang for incarcerated members,
recommending the institution of receipts for drug and
money transactions from the caja, and participating
in discussions of planned acts of violence. He also at-
tempted to procure a half-ounce of cocaine from the caja
to resell and became agitated when he was denied
despite his status in the gang. We acknowledge that the
evidence, including his own statements, is susceptible
to multiple interpretations. But when viewed in the light
most favorable to the prosecution and the verdict, the
evidence clearly sufficed for his convictions on both the
racketeering and narcotics conspiracies. A rational trier
of fact could—and did—find that the government dis-
proved his withdrawal theory of defense. Because we
find that the record was not “devoid of evidence from
which a reasonable jury could find guilt beyond a rea-
sonable doubt,” Durham, 2011 WL 2535801 at *5, we will
affirm his convictions.
66 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
2. Relevant Conduct and Career Offender Determinations
in Sentencing
Lechuga next contends that, even if his convictions
were sound, his sentence must be vacated because the
sentencing court committed two crucial errors. Like
Rodriguez and Hernandez, Lechuga first argues that the
district court increased his offense level based on errone-
ous findings that his co-conspirators’ acts of violence
were conduct relevant to his offense under the Sen-
tencing Guidelines. He then argues that the district court
erroneously determined that his two prior convictions
for distributing narcotics made him a career offender
under the Guidelines. These two errors, he concludes,
resulted in a dramatic increase from the appropriate 57-
71 month guideline range to the twenty years’ imprison-
ment he ultimately received as a sentence. We review
de novo the district court’s application of the sentencing
guidelines, and we review its findings of fact for
clear error. United States v. Knox, 624 F.3d 865, 870 (7th
Cir. 2010).
The jury found Lechuga guilty of both the racketeering
and narcotics conspiracies, but their general verdicts
shed no light on how it assessed his withdrawal defense.
After the jury returned its general verdicts, it received
instructions and special verdict forms to assess each
guilty Defendant’s involvement in the racketeering con-
spiracy and the amount of narcotics each guilty Defendant
was responsible for in the narcotics conspiracy. Because
the indictment did not accuse Lechuga of personal in-
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 67
09-3347, 09-3603 & 09-3653
volvement in any of the acts of violence described as
part of the racketeering conspiracy, no special verdict
questions were submitted regarding Lechuga’s intent
and specific involvement in those violent acts. The jury
was asked, however, what types and amounts of
narcotics had been proven as to Lechuga regarding his
involvement in the narcotics conspiracy; it determined
that he was accountable for less than 500 grams of
powder cocaine and no cocaine base or marijuana. The
district court, in interpreting the general and special
verdicts, found that the jury had determined that
Lechuga had withdrawn from the conspiracies at some
point prior to the June 2002 roll-back meeting, but that
he had rejoined the conspiracies at or before that meeting.
(Lechuga Sent. Tr. at 25-26.) It then found that Lechuga
was responsible for all of the incidents of violence perpe-
trated by his co-conspirators in the period between
the June 2002 meeting and the date of his arrest, id.,
but found that he was only responsible for the small
amount of narcotics entered in the jury’s special verdict
form, id. at 39.
Lechuga challenges the district court’s relevant con-
duct finding as to his racketeering conspiracy offense,
arguing that his co-conspirators’ violent acts could not
have been attributable to him given the extremely
limited scope and duration of his conspiracy. He reads
the jury’s verdicts to declare that he rejoined the con-
spiracies only for the month-long period between the roll-
back meeting and a subsequent meeting he attended
and only for the circumscribed purpose of obtaining a
68 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
small amount of powder cocaine. Given that self-serving
assessment of the scope of his jointly undertaken
criminal activities, the violent acts of his co-conspirators
would not have been foreseeable to him and, therefore,
could not constitute conduct relevant to his racketeering
offense. See, e.g., United States v. Bustamante, 493 F.3d
879, 887-88 (7th Cir. 2007) (narcotics conspirator only
accountable for the conduct relevant to his smaller con-
spiracy despite it being a subset of a larger conspiracy
of which he was aware).
Lechuga reads too much into the jury’s verdicts, espe-
cially given that no special verdict was requested as to
his involvement in the violent acts specified in the racke-
teering count and that the quantity verdict related only
to the narcotics conspiracy. The verdicts are susceptible to
multiple interpretations, and read in the light most favor-
able to the prosecution, they certainly do not prove
that Lechuga again withdrew from the racketeering
conspiracy after rejoining in the summer of 2002. Nor
did any evidence at the trial or at sentencing demonstrate
the elements of any subsequent withdrawal from the
conspiracies. See Emerson, 501 F.3d at 811 (mere inactivity
insufficient to establish withdrawal). Nothing in the
verdicts or evidence shows conclusively that Lechuga’s
agreement regarding the racketeering enterprise and its
objectives was necessarily smaller than the overall con-
spiratorial agreement. We conclude that the district court
did not clearly err in finding that his co-conspirators’
violent acts were relevant to Lechuga’s racketeering
offense, given his long-standing Insane Deuce affiliation,
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 69
09-3347, 09-3603 & 09-3653
his pervasive familiarity with their objectives and
methods, and his renewed involvement in planning their
activities.
Lechuga’s final argument regards the district court’s
determination that he was a career offender under the
Sentencing Guidelines. Lechuga was convicted for
delivery of marijuana in 1990 and for delivery of cocaine
in 1991. He argues that he was an active Insane Deuce
at those times and that, under the government’s theory
that all narcotics sales by Deuces had to be at least in
part for the gang’s benefit, those deliveries were
pursuant to his participation in the gang. He concludes
that those two previous convictions could not be used
to categorize him as a career offender during sentencing
for his current racketeering and narcotics conspiracy
convictions.
In general, a defendant is sentenced as a career offender
upon conviction of his third violent or drug-related
felony. U.S.S.G. § 4B1.1; Garecht, 183 F.3d at 673. If the
career offender guideline applies, the defendant is auto-
matically categorized in criminal history Category VI, and
his total offense level may shift. U.S.S.G. § 4B1.1(b). The
Guidelines require that the two prior felony convictions
pre-date the instant offense of conviction and that the
sentences for those two prior convictions be counted
separately under section 4A1.1, the criminal history
category guideline. U.S.S.G. § 4B1.2(c). The definition of
“prior sentence” as the term is used in section 4A1.1
plays a critical role in Lechuga’s appeal because it means
70 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
“any sentence previously imposed . . . for conduct not part
of the instant offense.” U.S.S.G. § 4A1.2(a)(1) (emphasis
added). We therefore return to section 1B1.3 to deter-
mine whether the conduct underlying the prior sen-
tences is conduct relevant to the instant offense.
According to Lechuga, his prior sentences resulted from
drug-dealing activities that were intrinsic parts of his
current offenses of racketeering and narcotics con-
spiracies, so the district court could not consider the
previous convictions in determining his career offender
status.
The district court rejected Lechuga’s argument and
determined that he was a career offender based on the
narcotics conspiracy component of his instant offense.
(Lechuga Sent. Tr. at 50-51.) It recognized that the
nature of Lechuga’s conviction might change the
ordinary rules of determining his career offender status
because the Guidelines make the criminal history com-
putation provisions in section 4A1.2 applicable to the
counting of convictions in section 4B1.1, U.S.S.G. § 4B1.2
cmt. n.3, but also except some racketeering activities
from the standard instant offense analysis in section
1B1.3 and the prior sentence definition in section 4A1.2,
U.S.S.G. § 2E1.1, cmt n.4. But despite Lechuga’s extensive
contrary assertions, the district court neither reached
nor relied on this legal analysis. It instead determined
that the conduct underlying Lechuga’s prior sentences
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 71
09-3347, 09-3603 & 09-3653
could not have been related to his instant offense.1 2
(Lechuga Sent. Tr. at 51.) This finding was based, in part,
on the fact that the previous felony narcotics convictions
were entered in 1990 and 1991, before the period of the
racketeering and narcotics conspiracies alleged in the
indictment—in or about late 1994 through 2006.
Indeed, Lechuga was hoisted on his own petard. He
convinced the district court that, for purposes of his
present offense, his involvement in the conspiracy began
in the summer of 2002. Lechuga does not even endeavor
to explain in his briefs to this Court how the district
court’s finding that his 1990 and 1991 convictions were
unrelated to a conviction for racketeering and narcotics
conspiracies commencing in 2002 amounts to clear error.
We can perceive no infirmity in the district court’s rea-
soning, let alone any that leaves us with a definite sense
that a mistake was made. See Salem, 597 F.3d at 884.
We will therefore affirm the sentence the district court
imposed on Lechuga.
12
On appeal, Lechuga argues that the district court “ultimately
concluded that Lechuga was a Career Offender based on an
exception contained in U.S.S.G. § 2E1.1, note 4.” (Lechuga Br.
at 33.) That argument baffles us for two reasons. First, he cites
page 49 of the sentencing transcript for that proposition, yet
page 49 contains no reference to the racketeering provision.
Second, the sentencing court—in response to a question from
the same counsel now representing Lechuga on appeal—
specifically stated that it was not relying upon “the 2E1.1
exception” to make its career offender determination. (Lechuga
Sent. Tr. at 51.)
72 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
F. Crowder’s Separate Claim
Crowder presents only one separate issue, alleging that
the district court abused its discretion during the trial
phase by admitting evidence that the government pre-
sented solely to inflame the jury. He argues that the
challenged evidence, all of which was introduced by the
government ostensibly to show the connection between
Crowder and the Insane Deuce racketeering conspiracy,
was either irrelevant or unduly prejudicial. Specifically,
he complains that the evidence of where two of his
victims were returning from—a Blockbuster video
store—and who was also in the vehicle when he shot at
them was inadmissible because it “painted a picture
of a wholesome family outing disrupted by a violent
shooting.” (Crowder Br. at 5.) He also complains that the
government presented evidence of him shooting a victim
outside of a children’s music recital when the location
was immaterial, as well as testimony from a witness
whose stated reason for recalling the date of another
shooting was that she was returning a pan to her
neighbor who had baked a cake for her after a death in
her family. We review the district court’s evidentiary
decisions for abuse of discretion, disturbing its ruling
only if no reasonable person could agree with them.
Dinga, 609 F.3d at 908.
We find no merit to Crowder’s arguments, and we
dispose of them summarily. The government presented
evidence of the shootings in order to show that he under-
took the violent actions on behalf of the Insane Deuces
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 73
09-3347, 09-3603 & 09-3653
and that they were not mere random acts. Crowder
believed each of his targets and victims to be Latin Kings.
The shooting victims and other witnesses were called
to identify Crowder as the shooter and to describe the
circumstances of the shootings; those circumstances, in
turn, provided the basis for forensic evidence linking
Crowder to the gang through his use of Nation guns.
The facts Crowder complains of were referred to only
momentarily and were elicited to provide foundation
for the witnesses’ memories of the events. Further, we
do not require parties to sterilize their testimony,
purging it of all human detail; such details may be
relevant and even essential to a jury’s evaluation of
the witnesses’ credibility. Crowder “has not demon-
strated that he was unfairly prejudiced, let alone that the
district court abused its discretion by admitting” the
testimony he challenges. United States v. Hanna, 630 F.3d
505, 511 (7th Cir. 2010). We will therefore affirm his
conviction.
G. Handley’s Separate Claims
Handley challenges only his sentence on appeal. As do
many of his co-defendants, he contends that the district
court failed to properly articulate its findings that his co-
conspirators’ conduct was relevant to his offense. He
also contends that those findings were not based upon
sufficient evidence. Because of these errors, he con-
cludes, we must remand his case for resentencing. Once
again, we review de novo the district court’s application
74 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
of the sentencing guidelines, and we review its factual
findings for clear error. Nance, 611 F.3d at 415.
Much like Lechuga claims to have done, Handley
apparently tried to distance himself from the Insane
Deuces during the summer of 2002. Though he was once
a very active Deuce, Handley’s participation waned so
far that his fellow gang members issued a “smash on
sight” or “SOS” order against him in late 2002 or early
2003, meaning that anyone who ran into him should
physically beat him to punish his lack of involvement.
The government did not present any evidence that
Handley had actual knowledge of or personally partici-
pated in any acts of violence after the summer of 2002.
Regardless, the government and the PSR recommended
holding him accountable for the gang’s subsequent
violent acts. Handley argued, both in his objections to
the PSR and during the sentencing hearing, that the
circumstances showed he had not agreed to the full
scope of the gang’s racketeering conspiracy and that
the violent acts during and after the summer of 2002 were
not in furtherance of his jointly undertaken criminal
activity. He also argued that the evidence linking him
to any violent acts prior to that time was inherently
unreliable due to the lack of cross-examination and
many indications of poor credibility.
Handley’s arguments did not convince the district
court. The district court noted that, while no evidence
showed Handley’s direct participation in violence, the
evidence did demonstrate that Handley knew of the
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 75
09-3347, 09-3603 & 09-3653
many violent acts, was present during multiple discus-
sions of actions against rival gang members, and went
along with it all without making known the fact that
he allegedly abhorred violence. The district court found
that Handley had been an Insane Deuce from the age of
14 in 1999 until 2003, when he first attempted to walk
away according to his own post-arrest statement. The
district court did, however, find that Handley unquestion-
ably attempted to minimize his participation in the en-
terprise near the end of his membership. Based on
Handley’s post-arrest statement, cooperating witness
testimony, and statements from one of the co-conspirators
tried in the first trial, the district court found that Handley
was involved in “certain missions” and that he was “a full
member of the conspiracy, and that he [was] therefore
responsible for the actions of the co-conspirators for
which he could have . . . reasonably been aware of, and so
it can be said that this was within his agreement with
the gang.” The court specifically found that the SOS
order issued in 2003, far after the facts involved in the
case under consideration. It therefore determined that,
based on the relevant conduct of his co-conspirators,
Handley’s total offense level was 43. The district court
confirmed that it was agreeing with the PSR and its
guideline calculations.
On appeal, Handley renews his contention that the
evidence upon which the district court based its findings
was inherently unreliable. He also contends that the
district court’s relevant conduct findings were insuf-
ficient because they neither specified the scope of
76 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
Handley’s jointly undertaken activity nor described
those acts of his co-conspirators that furthered that joint
undertaking. We reject the latter contention, as we are
satisfied that the district court’s findings—though
terse—sufficiently articulated its reasons for finding the
conduct of Handley’s co-conspirators relevant to his
offense. See United States v. Singleton, 548 F.3d 589, 593
(7th Cir. 2008) (describing our reluctance to reject a
district court’s relevant conduct findings for failure to
invoke section 1B1.3’s “magic words”). The district
court’s findings were informed both by counsel’s argu-
ments regarding the scope of the joint undertaking
and by the calculations and reasoning in the PSR that it
ultimately adopted during the sentencing hearing. See
United States v. Acosta, 85 F.3d 275, 279-80 (7th Cir. 1996)
(no clear error in implicit relevant conduct finding
where record shows the district court considered and
adopted PSR recommendations and government’s rea-
soning regarding the facts related by the PSR).
The district court’s statement, while perhaps inelo-
quently phrased, suggests that it found the scope
of Handley’s criminal undertaking to be coextensive
with that of the entire racketeering enterprise. It undoubt-
edly found that the scope was broad enough to include
the co-conspirators’ criminal acts at issue. While the
district court may not have defined the nebulous outer-
most limits of the scope of Handley’s joint criminal activi-
ties, it did find that the scope at least included the acts
of violence at issue and that his co-conspirators’ acts
were reasonably foreseeable to Handley.
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 77
09-3347, 09-3603 & 09-3653
The district court’s statement quoted above does not
suggest to us that the district court erroneously
determined the scope of Handley’s undertaking, as
Handley suggests, by considering foreseeability first or
exclusively. Further, Handley makes no argument that
the violent acts in question were not in furtherance of
the overall conspiracy. We therefore conclude that the
district court’s findings sufficed for purposes of section
1B1.3—provided that those findings rested on sufficient,
reliable evidence. See United States v. England, 555 F.3d
616, 622 (7th Cir. 2009) (“[D]ue process requires that
sentencing determinations be based on reliable evi-
dence, not speculation or unfounded allegations.”).
We turn, then, to Handley’s contention that the evi-
dence the district court relied on in making its relevant
conduct findings was unreliable. Handley argues that
the government relied on testimony from cooperating
witnesses Becerra and Juan Osorio—who testified that
Handley personally participated in some violent acts—
despite the fact that their testimony was highly question-
able and subject to considerable dispute. He also
argues that the only evidence the district court appeared
to rely on was a government-provided memorandum
summarizing co-conspirator Fernando Delatorre’s post-
arrest statements and grand jury testimony. Handley
asserts that the reliance was inherently unreasonable
because the district court did not have time to review the
memorandum in its entirety; because Delatorre, at that
time, thought he stood to benefit from each allegation
he made against his fellow gang members; because
78 Nos. 09-2863, 09-2864, 09-3231, 09-3232,
09-3347, 09-3603 & 09-3653
Delatorre later implicitly repudiated the testimony by
going to trial; because the sentencing court never had
the opportunity to observe Delatorre; and because
the memorandum comprised conclusory statements of
verification from law enforcement officials. The district
court did not enter any explicit findings as to the credibil-
ity of declarants or witnesses or as to what conflicting
evidence it found to be reliable and supportive of its
determinations. Handley therefore concludes that we
must remand for resentencing.
We agree that we must remand for a new sentencing
hearing “[i]f the district court relied on unreliable or
inaccurate information in making its sentencing deci-
sion.” England, 555 F.3d at 622. But we do not conclude
that the district court did so here. Sentencing courts
may “consider relevant information without regard to its
admissibility under the rules of evidence . . . provided
that the information has sufficient indicia of reliability
to support its probable accuracy.” U.S.S.G. § 6A1.3. The
district court was in a good position to judge the
credibility of Becerra and Osorio, whose trial testimony
implicated Handley in two attempted murders. The
district court also heard a candid conversation between
Delatorre and Rivera, covertly recorded long before
Delatorre knew of the impending arrests, in which
D e l at o rr e im p licated H an dley in an ot h e r a t-
tempted murder. Handley makes much of the district
court’s reference to the Delatorre memorandum during
sentencing, but the district court was well informed
regarding Delatorre’s credibility issues. It knew that
Nos. 09-2863, 09-2864, 09-3231, 09-3232, 79
09-3347, 09-3603 & 09-3653
Delatorre chose to stand trial instead of reaching a plea
agreement after making his self-serving grand jury state-
ments, and Handley’s counsel extensively attacked
Delatorre’s credibility at the sentencing hearing. The
memorandum also summarized the results of an inves-
tigation to verify Delatorre’s statements; it was not merely
a recitation of his testimony from the grand jury.
Moreover, the district court also relied on Handley’s
own post-arrest statement in reaching its findings, in-
cluding his concession of having been the Shorty Enforcer
in 2002.
Handley’s arguments do not convince us that all of the
evidence before the sentencing court was inherently
unreliable. The district court could have been more
specific in outlining what evidence it relied upon and
why it found that evidence particularly reliable. Still,
the record suggests that the relevant evidence was
reliable and that the district court adequately considered
the conflicting evidence. See United States v. Johnson, 643
F.3d 545, 552 (7th Cir. 2011). We are not left with
the definite and firm conviction that the district court
erred in its relevant conduct determinations, so we
will affirm Handley’s sentence.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the judgments
of the district court.
8-18-11