United States v. Benabe

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

B OLIVAR B ENABE, JULIAN S ALAZAR, JUAN JUAREZ,

C HRISTIAN G UZMAN, S TEPHEN S USINKA, and

F ERNANDO D ELATORRE,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:03-cr-00090—Ruben Castillo, Judge.

A RGUED M ARCH 28, 2011—D ECIDED A UGUST 18, 2011

Before K ANNE, S YKES, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. The Insane Deuces was a

street gang engaged in a long-running conspiracy in-

volving deadly violence and drug distribution in

northern Illinois. In 2006, a grand jury indicted sixteen

2 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

individuals involved in the gang for conspiracy under

the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962(d), and related charges of

murder, conspiracy to commit murder, assault with a

dangerous weapon, drug distribution, conspiracy to

distribute drugs, and unlawful possession of firearms.

One defendant named in the indictment was not appre-

hended and remains a fugitive. Another pled guilty.

The case against the other fourteen was severed into

two trials. The appeals addressed in this opinion stem

from the first trial. A second set of appeals stems from

the second trial. Our opinion in that case, also released

today, is reported as United States v. Morales, et al., No. 09-

2863, ___ F.3d ___ (7th Cir. 2011).

Seven defendants were tried in the first trial. Six were

found guilty and appeal their convictions.1 They are

Bolivar Benabe, Julian Salazar, Juan Juarez, Christian

Guzman, Stephen Susinka, and Fernando Delatorre. The

trial of these appellants began on February 6, 2008, and

ran through the return of the special RICO verdicts and

forfeiture verdicts on April 23, 2008. Over the course

of several weeks the government presented and the

jury heard evidence that in 2002 alone, the Insane

Deuces committed four murders, eleven attempted mur-

1

As to the seventh, Harold Crowder, the jury reached no

verdict in the first trial. He was retried with the second group

of defendants and was found guilty. His appeal is part of

the parallel Morales opinion.

Nos. 09-1190, 09-1224, 09-1225, 3

09-1226, 09-1227 & 09-1251

ders, two solicitations to commit murder, and multiple

other shootings. The evidence was presented through

eyewitness testimony, the testimony of cooperating wit-

nesses, recorded co-conspirator statements, and ballistics

evidence. Eyewitnesses who were not in the gang identi-

fied the shooters in three murders and/or attempted

murders proven at trial, including the identification of

defendant Guzman as the shooter in a July 18, 2002 at-

tempted murder and the August 11, 2002 murder of

David Lazcano. Five former Insane Deuces testified

against the defendants, describing for the jury the gang’s

structure, leadership, and membership, its rules and

regulations, and providing horrific details of the murders

and attempted murders committed by the Insane Deuces.

Through search warrants, arrests, or cooperation, the

government recovered firearms used in eleven of the

sixteen murders and attempted murders presented to

the jury at trial, directly linking the Insane Deuces to

those shootings.

All six of the defendants were convicted of RICO con-

spiracy, 18 U.S.C. § 1962(d) (Count 1 of the Second

Superceding Indictment). Delatorre and Guzman were

convicted of murder in aid of racketeering activity, 18

U.S.C. § 1959(a)(1) (Count 2), and Juarez and Salazar were

convicted of conspiracy to commit murder in aid of

racketeering, 18 U.S.C. § 1959(a)(5) (Counts 3 (Salazar) and

4 (Juarez and Salazar)). Delatorre, Benabe, Juarez, and

Salazar were convicted of conspiracy to distribute con-

4 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

trolled substances, 21 U.S.C. § 846 (Count 9).2 Delatorre

was also convicted of assault with a dangerous weapon

in aid of racketeering activity, 18 U.S.C. § 1959(a)(3)

(Count 5),3 murder in aid of racketeering activity, 18

U.S.C. § 1959(a)(1) (Counts 6 and 7), distribution of

crack cocaine, 21 U.S.C. § 841(a)(1) (Count 12), and posses-

sion of a firearm with an obliterated serial number,

18 U.S.C. § 922(k) (Count 13). After a second round of

deliberations, the jury returned a special RICO verdict

assigning responsibility for four murders that were

charged in Paragraphs 15, 16, 19, and 20 of Count 1. The

jury also returned a finding with respect to Delatorre

and Benabe that eighteen firearms be forfeited.4

Following denial of the defendants’ post-trial motions,

the court sentenced Delatorre, Benabe, Juarez, Salazar

and Guzman to life imprisonment. Susinka was sen-

tenced to twenty years in prison. All defendants appeal

their convictions; Susinka also appeals his sentence.

The defendants’ appeals present a host of issues.

We address many of those issues in a separate unpub-

2

Susinka also was charged under Count 9. The jury hung

on that charge, which was then dismissed against him.

3

Guzman was also charged in Count 5 but was found not

guilty.

4

The forfeiture allegation in the indictment was brought

under 21 U.S.C. § 853 for firearms that were used as a part of the

Count 9 drug conspiracy. It also applied to Juarez and Salazar,

who waived a jury finding with respect to that allegation.

Nos. 09-1190, 09-1224, 09-1225, 5

09-1226, 09-1227 & 09-1251

lished order issued today.5 We address in this opinion

several issues for which a published opinion may be

useful: (1) the district court’s decision to try the case by

an anonymous jury; (2) the district court’s decision to

remove defendants Delatorre and Benabe from the court-

room upon their refusal to assure the court on the eve of

trial that they would refrain from inappropriate outbursts

in the presence of the jury; (3) the district court’s denial

of a motion to suppress in-court and out-of-court eyewit-

ness identifications of Guzman as the shooter in a gang

murder; (4) the district court’s jury instructions; (5) the

district judge’s decision to provide the jury with partial

transcripts during its deliberations; and (6) alleged juror

“misconduct” that came to light after the verdict was

rendered. Before addressing these questions we provide

an overview of the Aurora Insane Deuces gang and

the relevant facts. This summary, which only scratches

the surface of the evidence presented to the jury, is re-

counted here in the light most favorable to the verdicts.

Additional facts are available in our companion case,

Morales, No. 09-2863, slip op. at 2-14, ___ F.3d at ___.

The Aurora “Insane Deuces”

The Aurora faction of the Insane Deuces was the focus

of this case. Its goal was to eliminate rival gangs and

5

Our order rejects all the defendants’ arguments except for

one, related to Susinka’s term of supervised release. We

modify his sentence accordingly, but otherwise affirm the

district court in all respects.

6 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

take over the streets of Aurora. Non-Insane Deuces were

a threat to this goal. As defendant Salazar explained at

a gang meeting in the summer of 2002, “They’re a

threat because they’re a threat to our growth, our growth,

because all of those neutron kids growin’ up, they’re

given’ them another option to turn to somethin’ else. . . .

They should only have one choice. . . . Either if you gonna

be that side . . . you gonna be on this side, you ain’t got

but one choice. Turn Deuce. They stuntin’ our growth.”

The gang was organized into three levels of manpower:

“Seniors,” “Juniors” and “Shorties.” The Juniors were the

active gang members most responsible for day-to-day

operations. Seniors were older members of the gang who

were less active but advised the Juniors. The Shorties were

the youngest members of the gang, often juveniles, whose

job it was to carry out the orders of the Juniors. Juniors

were led by members who served in roles of “Junior

Governor,” “Lieutenant Governor,” and “Enforcer,” and

similarly the Shorties were led internally by their own

“First Seat,” “Second Seat,” and “Enforcer.” Individual

gang members advanced within the gang by committing

acts of violence, such as shooting members of rival gangs

on “missions.” The gang conducted meetings for Juniors

and Shorties, called “juntas,” at which the gang’s business

was discussed: missions and leadership roles were as-

signed, conflicts with rival gangs were reviewed, violence

against rival gangs was planned, and intelligence was

shared. The attending members also discussed dealing

drugs, efforts to acquire firearms, the appropriate ap-

portionment of dues and fines among the members, and

Nos. 09-1190, 09-1224, 09-1225, 7

09-1226, 09-1227 & 09-1251

how to support members who had been jailed. Insane

Deuces in jail continued to enjoy the privileges of gang

membership and could expect support and protection

from their fellow members.

The gang had written rules, called “leyas,” and also

abided by other, unwritten rules. Members were

required to follow orders and report “missions” to their

superiors. Members were punished, or “violated,” for

disobeying a rule. “Violations” ranged from assignments

to additional missions to being beaten to being killed.

Cooperation with law enforcement warranted the worst

violation. The gang also maintained a “caja,” which

provided members with access to a common supply of

drugs, guns, and money. Members took drugs from the

caja, sold them, and then returned their cost and some

profit to the caja. This profit went toward the purchase

of additional firearms and drugs, and for bail money.

Members of the Insane Deuces also could benefit from

the “free enterprise” rule, which permitted members to

deal drugs on the side so long as they shared their indi-

vidual profits with the gang for its benefit.

In May 2002, in a coup that would lead to the indict-

ments in this case, an Aurora police detective recruited

Orlando Rivera as a confidential source. At the time,

Rivera was a Junior Enforcer of the Aurora Insane

Deuces. Under the supervision of local police and

federal agents, Rivera provided information about the

gang’s activities and began making recorded purchases

of firearms and cocaine from the Insane Deuces and

8 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

their associates. In return for his cooperation with and

assistance to law enforcement, Rivera was given total

immunity.

Rivera also attended and recorded gang meetings and

one-on-one conversations he had with members after

shootings, including murders. In these recordings, gang

members planned violent acts against rival gangs (in-

cluding murder). They discussed their ability to make

money through drug sales fronted by the caja, as well

as the need for more firearms. They also discussed the

gang’s ultimate goal of taking over Aurora’s streets, the

gang’s organizational structure, and its system of dues

and fines. These recordings featured prominently in the

trial and no doubt left an indelible impression on the

jury. Over Rivera’s six days of testimony, the jury heard

recordings he had made of gang meetings and activities

on approximately 22 dates.

Through Rivera’s secret recordings, the jury heard the

defendants’ own statements about their activities. For

example, in a recorded meeting on August 22, 2002,

Delatorre confirmed that the gang was involved in the

July 18, 2002 shooting of a rival Latin King. He also ad-

mitted to being the driver in the Lazcano murder, giving

specific details, including the car he drove and the type

of gun used. The jury heard a recorded conversation

between Rivera and Delatorre on October 19, 2002,

when the two met to dispose of two firearms. Delatorre

told Rivera in the recording that he and other Insane

Deuces killed David Morales on October 16, 2002. Law

Nos. 09-1190, 09-1224, 09-1225, 9

09-1226, 09-1227 & 09-1251

enforcement recovered the firearms. Ballistics evidence

matched one gun to the Morales murder and the other

to two shootings — a September 19, 2002 attempted

murder in which a bystander was shot in the back, and

a September 28, 2002 attempted murder in which

another bystander, a 14-year-old boy, was shot in the

back and paralyzed. Other Insane Deuces admitted on

tape to being involved in three murders and three at-

tempted murders, and Salazar was recorded soliciting

the commission of murder in August 2002.

Issues Presented on Appeal

I. Anonymous Jury

Ordinarily, parties have available to them the names,

addresses, occupations, and locations of employment of

potential jurors. They can then use this information to

question potential jurors to discern possible biases. Unfor-

tunately, in some trials, potential jurors are at high risk

of harassment, intimidation, or other unwelcome and

disruptive influences. To protect potential jurors and

their families, the trial court may decide to withhold

identifying information from the parties, although the

decision cannot be taken lightly. “An anonymous jury

raises the specter that the defendant is a dangerous

person from whom the jurors must be protected, thereby

implicating the defendant’s constitutional right to a

presumption of innocence.” 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). “Juror

10 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

anonymity also deprives the defendant of informa-

tion that might help him to make appropriate chal-

lenges — in particular, peremptory challenges — during

jury selection.” Mansoori, 304 F.3d at 650, citing United

States v. DiDomenico, 78 F.3d 294, 301 (7th Cir. 1996);

United States v. Edmond, 52 F.3d 1080, 1090 (D.C. Cir. 1995).

Although empaneling an anonymous jury is an extreme

measure, it may be warranted where “there is a strong

reason to believe the jury needs protection.” United States

v. Crockett, 979 F.2d 1204, 1215 (7th Cir. 1992). The trial

court therefore must weigh the defendant’s and the pub-

lic’s interest in preserving the presumption of innocence

and in conducting a useful voir dire against the dual

interests of the jurors’ security and their impartiality.

Mansoori, 304 F.3d at 650.

Here, the government argued that anonymity was

necessary to protect the safety of the jurors. The

defendants objected. The defendants argued that

potential jurors likely would be unwilling to be suf-

ficiently forthcoming in voir dire if anonymous, and

that an anonymous jury would be unduly alarmed

about possible threats to their safety, prejudicing the

defendants. After noting that the defendants were

accused of being involved in organized crime and faced

life sentences if convicted, Judge Castillo granted the

government’s motion. He further concluded that “the

government has alleged with sufficient particularity

that the defendants have a history of intimidating wit-

nesses or otherwise obstructing justice such that they

may do so in connection with this trial.” In support of

Nos. 09-1190, 09-1224, 09-1225, 11

09-1226, 09-1227 & 09-1251

this finding, Judge Castillo relied heavily on the gang’s

history of retaliation and intimidation of witnesses and

cooperators. He noted that Salazar and Juarez, together

with severed co-defendants Mariano Morales and

Arturo Barbosa, were accused of conspiring to murder

an individual who they believed was cooperating with

law enforcement. Rivera had surreptitiously recorded

these defendants arranging the murder of the suspected

informant in October and November 2002. Also, severed

co-defendant Steven Perez was accused of firing 29

rounds into Rivera’s parents’ house, injuring his father,

after the gang learned of Rivera’s cooperation.6 Each of

these incidents occurred more than four years before the

trial began, but because one of the charged defendants

was still at large and other members of the gang had not

been charged and were free, the judge concluded that

the gang had the means to intimidate jurors, a history of

such intimidation, and that under these circumstances,

juror anonymity was warranted.

On appeal, we review the district court’s decision to

empanel an anonymous jury for abuse of discretion.

Mansoori, 304 F.3d at 650. We find that there was no

abuse of discretion here. Judge Castillo weighed the

appropriate factors, which, as Mansoori instructs,

included the defendants’ involvement in organized

crime, the Insane Deuces’ capacity to harm jurors, the

6

The jury in the second trial was unable to reach a verdict on

the charges against Perez, and the judge declared a mistrial.

12 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

Insane Deuces’ previous attempts to interfere with

the judicial process, the severity of the sentences the de-

fendants faced if convicted, and whether publicity sur-

rounding the case presented the prospect that the ju-

rors’ names could become public and expose them to

intimidation or harassment. Id. at 650-51. An anonymous

jury is not appropriate in every criminal trial involving

organized crime. “Something more” than the organized-

crime label is necessary to justify juror anonymity, such

as “a demonstrable history or likelihood of obstruc-

tion of justice” by the defendants or a “showing that

trial evidence will depict a pattern of violence by the

defendant and his associates such as would cause a juror

to reasonably fear for his own safety.” Mansoori, 304 F.3d

at 651, quoting Crockett, 979 F.2d at 1216. The record in

this case fully supports Judge Castillo’s finding that the

Insane Deuces had a history of witness intimidation,

that the gang retained the capacity to strike at members

of the jury, and that there was a real risk of juror intimida-

tion. In other words, this case had the requisite “some-

thing more.” The district court properly exercised its

discretion to keep this jury anonymous, and we affirm

its decision.

II. Absence of Delatorre and Benabe from the Courtroom

On February 5, 2008, the day before jury selection

began, the district judge ordered that defendants

Delatorre and Benabe would not be permitted to attend

the trial unless and until they assured the judge that

Nos. 09-1190, 09-1224, 09-1225, 13

09-1226, 09-1227 & 09-1251

they would not disrupt the trial. Both refused. The

judge made arrangements for them to watch a video

feed of the trial from their detention center, though

neither did. The judge also made it clear that they

could return to court to attend their trial whenever

they were willing to promise to behave. Neither ever

did so.

Joined by each of their co-defendants, Delatorre and

Benabe argue on appeal that the judge’s handling

of their behavior violated their rights under the Sixth

Amendment and Federal Rule of Criminal Procedure 43.

As we explain below, the record shows that Judge

Castillo was patient and judicious in dealing with these

defendants’ persistent attempts to disrupt their prosecu-

tion. He took the extraordinary step of barring them

from attending trial only after it was clear that they

intended to disrupt the trial and undermine the ability

of the other defendants and the government to have a

fair trial. Both defendants effectively consented to their

removal by their conduct, so we find no constitutional

error. We find that the district court erred under Rule 43

by barring the defendants from trial on the day before

trial rather than on the first morning of trial, but we

find that the error in timing was harmless.

A. Disruptions by Delatorre and Benabe

Removal of the accused from his criminal trial will

rarely be justified, but it was justified by this record,

which we describe in detail to show the judge’s efforts

14 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

to ensure that the trial would be fair for all parties

before removing these two defendants from the court-

room. Delatorre played the leading role. He was repre-

sented by two attorneys, but on October 16, 2007, he

filed the first of more than twenty pro se documents

describing himself as “Sovereign Secured Party Creditor

Fernando Delatorre.” In these papers, he challenged

the legitimacy of the United States government, its juris-

diction over him, and the validity of the charges brought

against him. He claimed to be “sovereign” and immune

from prosecution. Benabe later joined Delatorre in this

effort to thwart the proceedings by his own assertions

of “sovereignty” and immunity.

On October 17, 2007, the court heard argument on

Delatorre’s motion to suppress evidence. Delatorre ap-

peared but refused to participate because his attorneys

“refused to represent me as a flesh-and-blood human

being.” The next day, giving Delatorre the benefit of the

doubt, the court ordered Delatorre to undergo a compe-

tency evaluation.

At a status hearing held on October 31, 2007, Delatorre

referred to himself as “a secured party creditor . . . third-

party intervenor.” He claimed that he was not the

person named in the indictment because his name was

not spelled with all capital letters (as it was in the in-

dictment). He demanded to know of the prosecutor

“what legal definition exactly, legal definition of the

term person are you applying to me for the purposes of

these proceedings?” At the court’s next status hearing,

Nos. 09-1190, 09-1224, 09-1225, 15

09-1226, 09-1227 & 09-1251

Delatorre repeated his claim that he was “a born

sovereign flesh-and-blood human being and a secured

party creditor.” When the court announced that there

would be a hearing on the competency evaluation,

Delatorre interrupted: “I need to address these various

issues right here and now.” The court stated the hearing

was concluded. Undeterred, Delatorre continued: “Let

the record reflect the Court is not allowing me to

address my various issues and is intending to punish

me for exercising my rights as a sovereign secured

party creditor.” The court then ended the hearing.

The next hearing of note was on January 11, 2008.

Delatorre’s attorney introduced himself, and Delatorre

broke in: “Excuse me, Mr. Kling does not represent

me in any way, shape or form . . . . That is all I have to

say for now.” Judge Castillo then found Delatorre com-

petent to stand trial and urged him to discuss his

case with his court-appointed counsel to prepare for

trial. But Delatorre’s disruptions continued. He told

the court that his attorneys had refused to represent him

as a secured party creditor and that the government

had refused to respond to his requests about the basis

for his prosecution. Looking ahead toward the trial,

Judge Castillo advised Delatorre that any outbursts in

front of the jury would prejudice him. Delatorre, how-

ever, maintained that he continued to challenge what he

called the court’s “subject matter and personam juris-

diction.” Judge Castillo then referred to Delatorre’s

pro se filings and said that his requests would be de-

nied. Delatorre asked if he would receive something

16 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

in writing, and the judge said that he would issue a

minute order. Delatorre asked about the nature and

content of the forthcoming order. Judge Castillo told

him that while he might be unhappy with the ruling, he

could appeal. Delatorre continued his protests. Judge

Castillo asked him to be quiet, and Delatorre responded,

“I’m going to politely honor that request.” He did not.

Instead, as the judge tried to move on, Delatorre inter-

rupted to ask the court again about his pro se filings.

Judge Castillo responded, “I think I already asked you,

Mr. Delatorre, if there was anything else you wanted to

cover.” Undeterred, Delatorre continued:

DELATORRE: Well I did. You asked me to remain

silent though. You asked. You responded that I do so,

but I would like to continue to speak, if that would be

possible. Can I?

COURT: I would ask you to remain silent then because

I think I’ve covered it.

DELATORRE: Then I’m going to have to honor that —

COURT: Are there any other pro se motions?

DELATORRE: — because you have not answered my

questions.

COURT: No, I’m asking you to remain silent at this

point.

DELATORRE: And I’m asking you to respond to my

questions.

Delatorre then continued for several more pages of tran-

script without interruption, demanding an explanation

Nos. 09-1190, 09-1224, 09-1225, 17

09-1226, 09-1227 & 09-1251

of the gold fringe on the flag in the courtroom, repeating

his jurisdictional objections, and making assertions such

as: “No one can explain to me why the United States has

to operate as a corporation. No one can explain to me

that there is, in fact, a distinction between the united

50 union states and the United States federal govern-

ment. No one can explain to me who’s, in fact, bringing

this claim or charge against me.”

By this time, Judge Castillo, the prosecutors, and

defense counsel were justifiably concerned about the

prospect that Delatorre would disrupt the trial, preju-

dicing himself and his co-defendants. Judge Castillo

asked the prosecutors how they wished to proceed with

Delatorre, and several co-defendants then moved for

severance. Judge Castillo said at this point that it was

becoming increasingly likely that Delatorre would con-

tinue in his sovereign-citizen assertions out of turn and

in front of the jury. He expressed his reluctance either

to remove Delatorre from the courtroom or to bind and

gag him at trial.

At the next status conference, on January 29, 2008,

Delatorre tried to seize the agenda by repeating his juris-

dictional challenges. Judge Castillo allowed him to

talk and then explained once again that he rejected

Delatorre’s jurisdictional challenges, and reasonably

asked Delatorre whether he could refrain from disrupting

the trial. Delatorre refused to answer. After listening to

more of Delatorre’s ramblings, the court asked once again:

“My question to you is once we start picking the jury . . .

18 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

will you allow your attorneys to speak for you during the

jury selection and trial?” Again, Delatorre did not an-

swer. Instead he asserted that his attorneys were refusing

to represent him “as a flesh-and-blood human being,” that

his name was spelled incorrectly in the indictment, and

that he needed the court to prove that the government

had jurisdiction over him. He insisted that he did not

consent to the proceedings and that he was a sovereign

and thus immune from prosecution. With admirable

patience, the court again asked, “Are you going to allow

Mr. Kling and Mr. Huyck to represent you and stay

silent while we select a jury next Wednesday?” The judge

explained that “if you disrupt the jury selection, I’m going

to have no choice but to have you removed from the

courtroom. Do you understand that?”

Delatorre’s disruptions continued. After warning him

once more that “the consequences of continuing along

these lines will be you being removed from the trial and

the trial will proceed without you,” Judge Castillo

ordered him removed from the courtroom. Delatorre

had been the only defendant to appear at the January 29

conference in person; the other defendants (including

Benabe) were represented by counsel but were not them-

selves present, having waived their right to appear.

The following day the court issued an opinion rejecting

Delatorre’s sovereign-citizen theories and recounting the

history of his disruptive behavior. The written opinion

again warned Delatorre “that his continued failure to

obey this Court’s orders could result in him being

Nos. 09-1190, 09-1224, 09-1225, 19

09-1226, 09-1227 & 09-1251

barred from the courtroom during jury selection or trial

to avoid potential prejudice to his six co-Defendants and

to himself.” United States v. Delatorre, 2008 WL 312647, at *3

(N.D. Ill. Jan. 30, 2009).

At a status conference hearing on January 31,

Judge Castillo asked defense counsel to read the Jan-

uary 30 order and to share it with each of the defendants.

With all defendants present, the judge said that before

the start of the trial, he would ask “each defendant if

they intend to speak during the trial without . . . court

permission. And any defendant who responds in the

affirmative will be held at the [Metropolitan Correc-

tional Center] from day one of the trial and will see the

trial from a seat at the MCC. I will not allow any

defendant to prejudice any of the other defendants on

trial before any of the prospective jurors.” The judge

stated that “any further attempts by Mr. Delatorre or

any defendant to disrupt this trial will have to be inter-

preted by me as a willingness on the part of that defendant

to watch the trial at the MCC, and I will make arrange-

ments to ensure that that happens.”

After these warnings at the beginning of the January 31

status conference, defendant Benabe interrupted and

began to pursue the same disruptive course that

Delatorre had followed. Benabe began to protest the

court’s jurisdiction by stating that he was “a secured-

party creditor, third-party intervenor” and that he was

not the “all-capital, corporate fiction person, debtor, straw

man” named in the indictment. He demanded “docu-

20 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

mented evidence” that the court had jurisdiction over

him as a “born sovereign, flesh-and-blood human being.”

The trial court referred Benabe to its January 30 opinion

and stated that it was a “bad sign” that Benabe did not

want to read the opinion. The court again warned

Benabe that before the trial started, “I will ask you whether

or not you’re going to make statements without . . . court

permission during the trial. If you give me no answer or

if you say that you will, I will hold you at the MCC while

the trial proceeds.” When Benabe continued to demand

proof that the court had jurisdiction over him, the court

ordered him removed from the courtroom. (After his

removal, Benabe filed multiple pro se documents on

February 4 that echoed his January 31 assertion of “sover-

eign citizenship.”) After Benabe’s removal from the

courtroom, Delatorre joined in again, saying, “I’m not a

defendant, but I have an unresolved issue that I would

like to address.” He was also removed at that point.

Things came to a head on February 5 — the day before

jury selection would begin. All defendants were present

for another status hearing. True to his word,

Judge Castillo inquired whether counsel had received

the January 30 opinion, whether defendants had read it,

and whether each defendant agreed not to make any

statements to the jury without permission. All agreed

except Delatorre and Benabe. Benabe refused to answer

the court’s question. Instead, he erupted with another

tirade about “illegal prosecution.” The court had him

removed.

Nos. 09-1190, 09-1224, 09-1225, 21

09-1226, 09-1227 & 09-1251

When it was his turn, Delatorre said he had not read

the opinion. The prosecution provided him with a copy,

but Delatorre refused to read it, supposedly because it

did not address him by his “birth given name.” The

judge asked him again whether he intended to make

statements to jurors without permission. Following

Benabe’s lead, Delatorre refused to answer. Instead, he

proffered a written “Affidavit of Truth,” the second

paragraph of which asserted: “That the undersigned

Affiant intends to fully cooperate with the Court’s pro-

ceeding during and throughout the course of trial.” The

judge accepted a copy of Delatorre’s document, and

then repeated his question orally. Delatorre’s only

response was to deflect the court’s question by asserting:

“I’ve addressed your concerns out of fear of my life and

of physical harm in writing.” This exchange occurred

twice more. Finding that Delatorre had refused several

times to confirm that he would not interrupt the jury

selection or trial, the court ordered him removed.

The court explained that the MCC would provide

Delatorre and Benabe with a room with a live video feed

from the courtroom, and that they could watch the

trial from there if they wished. The court made it clear

that Delatorre and Benabe were free to return to the

courtroom at any time if they would “indicate that

they will not speak in front of the prospective jurors or

the final jury . . . without the permission of this Court, as

long as they’ll abide by simple courtroom behavior.”

Counsel for Delatorre objected, asserting that Delatorre

had not yet acted up in the presence of jurors and that

he should not be removed preemptively.

22 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

The court’s response pointed out the unusual challenges

posed by Delatorre’s behavior in jury selection for a

trial expected to last several months, with a panel of

prospective jurors who had been screened already for

their ability to serve in such a long trial:

Mr. Delatorre . . . has disrupted, and the record will

reflect that, every single one of the last proceedings.

He has interrupted me repeatedly. . . . You’re asking

me to get 120 or so prospective jurors who have

been carefully selected who will probably go through

a snow storm to get here and to taint them with one

of his outbursts, and at which point we will have

to delay the trial again, while we try and put together

a required jury pool. I’m not willing to do that . . .

and I don’t think any defendant should control a

federal courtroom to that extent.

The judge did not need to add how difficult it would be,

and how long it would take, to clear all of the necessary

calendars of the court and counsel to reschedule the trial

if Delatorre or Benabe were permitted to disrupt jury

selection and taint the panel of prospective jurors.

On February 6, 2008, the first day of trial, counsel

reported that Delatorre and Benabe had both refused to

see them that morning, although both were in the

lockup in the courthouse. The court reminded counsel

that there was a video feed to the MCC in the event

that Delatorre or Benabe wanted to watch the trial, and

overruled counsel’s renewed objection that the defendants

had been removed before they were actually disruptive.

Nos. 09-1190, 09-1224, 09-1225, 23

09-1226, 09-1227 & 09-1251

Jury selection began. The court informed the prospective

jurors that Delatorre and Benabe “have been excused

from attending the trial . . . for reasons that have nothing

to do with the merits of the trial.” After reminding the

prospective jurors of the presumption of innocence, the

court inquired whether the absence of Delatorre and

Benabe would affect any of them one way or the other.

Prospective jurors who indicated that they could not be

neutral or had feelings about the issue were excused

for cause without objection.

As trial progressed, the court repeatedly asked whether

Delatorre and Benabe were willing to attend the trial.

Delatorre and Benabe refused to communicate with

their attorneys, and the trial proceeded without them.

Neither defendant watched the live video feed of the

trial at the MCC.

B. Analysis

Delatorre and Benabe argue that the trial court violated

their rights under the Sixth Amendment and Federal

Rule of Criminal Procedure 43(c) to be present at all

stages of trial by removing them for their behavior.

They assert that removing a misbehaving defendant

before trial has begun is a per se violation of that defen-

dant’s Sixth Amendment rights. They also argue that

their behavior was not terribly disruptive, and that even

if their pre-trial behavior did rise to such a level that

there was a real risk that trial could not proceed, the

court was required to follow a “hierarchy of remedies.” In

24 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

their view, removal is a last resort available only after

a defendant has been bound, gagged, shackled, and held

in contempt.

We first address whether the defendants’ argument that

their conduct never rose to a level that would have re-

quired their removal. We then address their arguments

that their removal violated their rights to be present

under the Constitution and then Rule 43. We hold that

by their conduct, Delatorre and Benabe consented to

their removal from the courtroom during trial, unless

and until they were ready to promise to behave.

The record demonstrates that Delatorre and Benabe

knowingly and voluntarily waived their constitutional

right to be present, and the district judge did not err

by removing them from the courtroom. That waiver

resolves the Sixth Amendment issue. However, the defen-

dants were not “initially present” at trial before being

warned and removed, which Federal Rule of Criminal

Procedure 43(c) explicitly requires. In this respect

the trial court erred, but on this record there was

no difference between ordering the defendants re-

moved on the day before trial rather than waiting until

the morning of trial. The Rule 43(c) error was harmless.

1. Defendants’ Misconduct

A threshold question raised by the defendants is

whether their conduct justified their removal. Although

they now admit that their tactics were “ill-advised,” they

contend that their pre-trial behavior was not a valid

Nos. 09-1190, 09-1224, 09-1225, 25

09-1226, 09-1227 & 09-1251

predictor of how they would behave before a jury, and

that their behavior was never so disorderly, disruptive, or

disrespectful that the trial could not have been

conducted in their presence. Delatorre also argues that

in fact he did comply with Judge Castillo’s request that

he promise not to disrupt the trial in his written

“Affidavit of Truth.”

True, neither Delatorre or Benabe behaved in a violent,

threatening, or obscene manner. They cloaked themselves

in politeness, often saying “please,” “thank you,” and

“excuse me.” But there is no question that their frequent

and undeterred outbursts, in which the defendants de-

clared themselves to be “sovereign citizens,” “secured-

party creditors” and “flesh-and-blood human beings” who

were somehow outside the jurisdiction of the court,

were obstructive, disrespectful, and potentially inflam-

matory. The defendants regularly spoke out of turn,

sidelined the legitimate business of the court, and

wasted valuable judicial resources with their baseless im-

munity claims. The district judge was rightly concerned

that Delatorre and Benabe would speak out of turn and

espouse their theories in front of the jury, causing con-

fusion, prejudicing their co-defendants, and tainting a

carefully screened jury pool. In that equation, the defen-

dants’ relative politeness simply does not matter, and

we will not second-guess Judge Castillo’s assessment.

We are also unpersuaded by the defendants’ argument

that their pre-trial behavior was not an appropriate

predictor of how they would behave before the jury.

26 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

These defendants were relentless in their interruptions,

consistently attempting to derail nearly every pre-trial

status conference they attended. Nevertheless, after

clearly explaining the risks and consequences, Judge

Castillo gave them each one final opportunity to

assure him that they would not disrupt the proceedings

after the case was called and the prospective jurors

brought into the courtroom. They each refused to give

that assurance. The combination of their pretrial

behavior and their refusal to promise to control their

behavior at trial was a sufficiently reliable indicator of

trouble, threatening the ability of the other defendants

to receive a fair trial. Judge Castillo did not err in

relying on these defendants’ past performances and

their refusals to promise to behave appropriately before

the jury.

Delatorre argues that Judge Castillo failed to acknowl-

edge that in his written “Affidavit of Truth” of February 5,

he did as Judge Castillo asked and promised to refrain

from outbursts before the jury, making his promise in

writing because he feared for his life. Paragraph 2 of

his affidavit stated that he “intends to fully cooperate

with the Courts proceedings during and throughout the

courts of trial.” The first problem with Delatorre’s argu-

ment is the rest of his affidavit. Paragraph 2 contained

his promise to refrain from outbursts, but paragraphs 1, 3,

4, 5, 6, 7, and 7A (of eight total paragraphs) echoed the

same nonsensical assertions of sovereignty and immunity

that Delatorre had advocated in disrupting the prior

proceedings. Judge Castillo reasonably dismissed para-

Nos. 09-1190, 09-1224, 09-1225, 27

09-1226, 09-1227 & 09-1251

graph 2 of Delatorre’s Affidavit of Truth as meaningless,

given its context. Second, there was no evidence, then

or now, that Delatorre’s life was in any danger. After

Delatorre’s repeated outbursts and his ongoing disre-

spect for the court, the prosecution, his own counsel, and

the proceedings, Judge Castillo’s demand that Delatorre

state openly and on the record that he would cease his

outbursts was reasonable. We find no error in the

judge’s interpretation of Delatorre’s refusal to answer a

direct question in open court as a clear threat that

Delatorre intended to disrupt the trial.

Our intention is not to quash the presentation of creative

legal arguments or novel legal theories asserted in good

faith. But the arguments raised by these defendants were

not in good faith. We have repeatedly rejected their

theories of individual sovereignty, immunity from prose-

cution, and their ilk. See United States v. Burke, 425

F.3d 400, 408 (7th Cir. 2005); United States v. Hilgeford,

7 F.3d 1340, 1342 (7th Cir. 1993) (rejecting the “shop worn”

argument that a defendant is a sovereign and is beyond

the jurisdiction bounds of the district court); United

States v. Sloan, 939 F.2d 499, 500-01 (7th Cir. 1991);

United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990)

(describing defendant’s proposed “sovereign citizen” de-

fense as having “no conceivable validity in American

law”); United States v. Phillips, 326 Fed. Appx. 400 (7th

Cir. 2009) (dismissing jurisdiction arguments as frivolous

because federal courts have subject matter and personal

jurisdiction over defendants brought before them on

federal indictments alleging violations of federal law).

28 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

Regardless of an individual’s claimed status of descent,

be it as a “sovereign citizen,” a “secured-party creditor,”

or a “flesh-and-blood human being,” that person is not

beyond the jurisdiction of the courts. These theories

should be rejected summarily, however they are pre-

sented. These defendants raised their immunity argu-

ments with the trial court, which properly dismissed

them. But for these defendants, once was not enough.

Rather than acknowledging the court’s ruling (and, if

they wished, saving their arguments for appeal), these

defendants continued to interrupt the proceedings in

a campaign to obstruct the trial. In doing so, they crossed

the line, entering the territory of abuse of the judicial

process. Judge Castillo did not err in acting on his

valid concern that Delatorre and Benabe would continue

on their campaign of confusion and obstruction in the

presence of the jury at the risk of prejudicing the venire

and necessitating a delay of the proceedings.

2. Due Process and the Sixth Amendment

After issuing a warning, the trial court in Illinois v.

Allen, 397 U.S. 337 (1970), removed from the courtroom

a criminal defendant who was spewing threats and

other abuse. In upholding the trial court’s decision to

expel Allen from the courtroom, Justice Black wrote:

It is not pleasant to hold that the respondent Allen

was properly banished from the court for a part of

his own trial. But our courts, palladiums of liberty as

they are, cannot be treated disrespectfully with impu-

Nos. 09-1190, 09-1224, 09-1225, 29

09-1226, 09-1227 & 09-1251

nity. Nor can the accused be permitted by his disrup-

tive conduct indefinitely to avoid being tried on the

charges brought against him. It would degrade our

country and our judicial system to permit our courts

to be bullied, insulted, and humiliated and their

orderly progress thwarted and obstructed by defen-

dants brought before them charged with crimes. As

guardians of the public welfare, our state and

federal judicial systems strive to administer equal

justice to the rich and the poor, the good and the

bad, the native and foreign born of every race, nation-

ality, and religion. Being manned by humans, the

courts are not perfect and are bound to make

some errors. But, if our courts are to remain what the

Founders intended, the citadels of justice, their pro-

ceedings cannot and must not be infected with the

sort of scurrilous, abusive language and conduct

paraded before the Illinois trial judge in this case.

Allen, 397 U.S. at 346.

Yet, a criminal defendant’s right to be present at trial

is constitutional bedrock. The Sixth Amendment pro-

vides in pertinent part: “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial,

by an impartial jury. . . ; to be confronted with the wit-

nesses against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counsel for his defense.” There is no question that

under this Amendment, the accused has a right to be

present at trial. See Allen, 397 U.S. at 338. The Due

30 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

Process Clauses of the Fifth and Fourteenth Amend-

ments offer additional protection. For due process, a

defendant must be present “to the extent that a fair and

just hearing would be thwarted by his absence.” Kentucky

v. Stincer, 482 U.S. 730, 745 (1987), quoting Snyder v.

Massachusetts, 291 U.S. 97, 107-08 (1934).

In reconciling these competing interests, the law allows

criminal defendants to waive their constitutional right

to be present at trial. See Diaz v. United States, 223 U.S. 442,

455 (1912) (“where the offense is not capital and the

accused is not in custody, the prevailing rule has been,

that if, after the trial has begun in his presence, he volun-

tarily absents himself, this does not nullify what has

been done or prevent the completion of the trial, but on

the contrary, operates as a waiver of his right to be pres-

ent”); see also Taylor v. United States, 414 U.S. 17, 19-20

(1973) (per curiam) (discussing knowing and voluntary

waiver of right to be present at trial as sufficient for

constitutionally valid trial in absentia); United States v.

Watkins, 983 F.2d 1413, 1419 (7th Cir. 1993). A defendant

in a criminal trial may waive his right to be present

either “by consent or at times even by misconduct.” Snyder,

291 U.S. at 106. In other words, a defendant’s consent

to removal need not be explicit. It can be implied, based

on the defendant’s actions. See Watkins, 983 F.2d at 1420;

see also Taylor, 414 U.S. at 20 (inferring consent from

an admittedly voluntary departure during trial). Such

a waiver, however, must be both knowing and volun-

tary, and the court “must indulge every reasonable pre-

sumption against the loss of constitutional rights.” Allen,

Nos. 09-1190, 09-1224, 09-1225, 31

09-1226, 09-1227 & 09-1251

397 U.S. at 343. A defendant who has lost his right to

be present can always regain it as soon as he “is willing

to conduct himself consistently with the decorum and

respect inherent in the concept of courts and judicial

proceedings.” Id.

Keeping with other circuits that have addressed situa-

tions akin to this one, we conduct a three-pronged inquiry

to review a district court’s finding that a criminal defen-

dant has waived his right to be present at trial. See

Watkins, 983 F.2d at 1419; see also United States v. Tureseo,

566 F.3d 77, 83-84 (2d Cir. 2009); United States v. Bradford,

237 F.3d 1306, 1311 (11th Cir. 2001); United States

v. Davis, 61 F.3d 291, 302 (5th Cir. 1995); United States v.

Guyon, 27 F.3d 723, 727 (1st Cir. 1994). First, we deter-

mine whether the district court abused its discretion

when it found that the accused had knowingly and volun-

tarily waived the right, reviewing for clear error the

district court’s factual finding that the waiver was

knowing and voluntary. Watkins, 983 F.2d at 1419, citing

United States v. Fontanez, 878 F.2d 33, 35 (2d Cir. 1989), and

United States v. Houtchens, 926 F.2d 824, 827 (9th Cir. 1991).

We will reverse if we find that the district court

“left unexplored serious questions as to whether the

appellant’s absence was knowing and voluntary.” See

Watkins, 983 F.2d at 1419, citing United States v. Hernandez,

873 F.2d 516, 519 (2d Cir. 1989). Second, we consider

whether the court appropriately exercised its discretion

in concluding that there was a controlling public interest

to continue the trial in spite of the defendant’s absence.

See id., at 1419, citing Fontanez, 878 F.2d at 35, and United

32 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

States v. Tortora, 464 F.2d 1202, 1210 (2d Cir. 1972).

The court must consider the likelihood that the trial

could take place with the defendant present, the difficulty

of rescheduling, the inconvenience to jurors, and the

burden on the government and others of having to under-

take two trials, particularly in a multiple defendant case.

See id., quoting Fontanez, 878 F.2d at 37. Finally, if we

conclude that the district court erred either in finding

a knowing and voluntary waiver or in continuing the

trial in the defendant’s absence, we consider whether

the error was harmless in light of the record as a whole.

Watkins, 983 F.2d at 1419; see also Stincer, 482 U.S. at 745

(stating that the right to be present is not guaranteed

“when presence would be useless, or the benefit but

a shadow”) (internal citation and quotation marks omit-

ted); Chapman v. California, 386 U.S. 18, 22-24 (1967) (error

will be considered harmless if it did not contribute to

the verdict).

The record before us offers clear support for the district

judge’s determination that, through their tandem cam-

paign of obstreperous interruptions and frivolous legal

arguments, Delatorre and Benabe knowingly and volun-

tarily waived their right to be present a trial. Recognizing

the stakes, Judge Castillo gave these defendants many

opportunities to change course and to participate in the

proceedings. They chose to abuse and disrespect those

opportunities. As the judge’s January 30 order made

clear, he would not permit Delatorre (who, at that

point, was a lone operator) to prejudice the other defen-

dants before the jury by his behavior. Judge Castillo

Nos. 09-1190, 09-1224, 09-1225, 33

09-1226, 09-1227 & 09-1251

notified all the defendants that Delatorre’s chosen

course could result in his being barred from the court-

room. Then, in open court on January 31, Delatorre and

Benabe were warned orally that the judge would ask

them if they intended to speak out of turn at trial, and

if they refused to confirm that they would behave re-

spectfully in front of the jury, Judge Castillo would inter-

pret that refusal as “a willingness on the part of

that defendant to watch the trial at the MCC.”

The day before trial was scheduled to begin, Judge

Castillo directly asked each defendant whether he

agreed not to make any statements to the jury without

the court’s permission. All defendants agreed to this

simple and basic condition, except Delatorre and Benabe.

Both clearly knew at that point what would happen if

they refused to promise on the record and in open court

to refrain from any further outbursts. They made their

choice, and the record fully supports the judge’s deter-

mination that they made that choice knowingly and

voluntarily. Once they were removed, the district court

left the courtroom door open for them, making plain

that they could return at any time during the trial

upon promising to behave properly. They never did so.

The record establishes that Delatorre and Benabe con-

sented to waive their constitutional rights to be present

at their trial.

Judge Castillo also appropriately weighed the public

interests at stake. Five other defendants were scheduled

to be tried in this complex and lengthy trial, and their

34 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

right to an impartial jury was under serious threat

from Delatorre’s and Benabe’s behavior. The jury pool

had been screened for prospective jurors who could

serve for a long trial. If Delatorre and Benabe had suc-

ceeded in tainting the jury pool, it would have been a

long and difficult process to put together another. Also,

the schedules of the defense lawyers, the prosecutors,

and the court had been cleared so that the trial

could go forward as efficiently as possible. No doubt

Judge Castillo had pushed off other trials and pro-

ceedings to make room for the Insane Deuces, and it

would have been nearly impossible to ready any other

parties to go to trial during any ensuing delay. Modern

American courts simply do not have the luxury of time

to indulge the obstructionist tactics of these defendants.

Budgets, calendars, and administrative capacities are

already too strained. Judge Castillo did not abuse his

discretion in determining that the public interest

weighed strongly in favor of moving the trial forward,

even if that meant going forward with Delatorre and

Benabe out of the courtroom. We find no constitutional

error in their exclusion.

The defendants argue that the Sixth Amendment estab-

lishes a per se rule that a disruptive defendant must

be present at the beginning of trial before being removed

and that a trial judge must exhaust every other possible

cure before removing a defendant from the courtroom.

But the Allen Court found that the Sixth Amendment

does not “so handicap a trial judge in conducting a crimi-

nal trial.” Allen, 397 U.S. at 342. The Court commented

Nos. 09-1190, 09-1224, 09-1225, 35

09-1226, 09-1227 & 09-1251

that, as inherently onerous as their options are, trial

judges might choose to handle obstructive defendants

with binding and gagging, contempt citations, or removal

of the defendant, without treading on the Constitution.

See id. at 344-46. But the Court did not make removal a

last resort. Instead, the Court put its faith in trial courts

to choose the best method to maintain the dignity and

decorum of the proceedings in a case-by-case fashion,

based on the unique circumstances presented by the

defendant and the trial, while preserving the rights of

criminal defendants. “We believe trial judges confronted

with disruptive, contumacious, stubbornly defiant defen-

dants must be given sufficient discretion to meet the

circumstances of each case. No one formula for main-

taining the appropriate courtroom atmosphere will be

best in all situations.” Id. at 343. Ultimately, the Allen

Court held that a defendant can lose his right to be

present at trial if, after he has been warned by the judge

that he will be removed if he continues his disruptive

behavior, he nevertheless insists on conducting himself

in a manner so disorderly, disruptive, and disrespectful

of the court that his trial cannot be carried on with him

in the courtroom. See id. That is exactly what occurred

here. There was no constitutional error.

3. Rule 43

We now shift gears from the Constitution to the more

demanding provisions of Federal Rule of Criminal Pro-

cedure 43. The defendants argue that Rule 43 requires that

36 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

a defendant may be removed only if he is physically

present at the beginning of jury selection, is seriously

disruptive once, is then warned that further disruptive

behavior will result in removal, and then persists in

misbehavior. As the defendants read the rule, a trial court

may not issue an order the day before trial excluding a

defendant from the courtroom during trial, as occurred

here.

Rule 43 builds on a defendant’s constitutional right to

be “present at all stages of the trial where his absence

might frustrate the fairness of the proceedings.” Faretta v.

California, 422 U.S. 806, 819 n.15 (1975); United States v.

Gibbs, 182 F.3d 408, 436 (6th Cir. 1999) (noting that rights

protected under Rule 43 are more expansive than those

guaranteed by the Constitution). Rule 43(a) provides

that unless otherwise allowed by Rules 5 or 10, the defen-

dant must be present at:

(1) the initial appearance, the initial arraignment, and

the plea;

(2) every trial stage, including jury impanelment and

the return of the verdict; and

(3) sentencing.

Rule 43(c) provides for waiver of a defendant’s con-

tinued presence under the following circumstances:

(1) In General. A defendant who was initially present

at trial, or who had pleaded guilty or nolo contendere,

waives the right to be present under the following

circumstances:

Nos. 09-1190, 09-1224, 09-1225, 37

09-1226, 09-1227 & 09-1251

(A) when the defendant is voluntarily absent

after the trial has begun, regardless of whether

the court informed the defendant of an obliga-

tion to remain during trial;

(B) in a noncapital case, when the defendant is

voluntarily absent during sentencing; or

(C) when the court warns the defendant that it

will remove the defendant from the courtroom

for disruptive behavior, but the defendant

persists in conduct that justifies removal from

the courtroom.

If the defendant waives the right to be present under

Rule 43(c), the trial may proceed to completion in the

defendant’s absence. But the language of Rule 43 does

not provide for waiver of the right to be present unless

a defendant is “initially present at trial.”

This case poses the question of what exactly it means

to be “initially present at trial.” In oral argument, the

defendants asserted that it means the defendant must

be physically present at the moment when the first pro-

spective jurors enter the courtroom (a standard that

would not help in a bench trial). We do not read the

rule’s language as being quite that precise, given dif-

ferent courts’ varied practices in managing jury selection,

especially when a defendant is in custody and must be

moved and managed out of the sight and hearing of

prospective jurors. Also, we do not read the rule as re-

quiring a district judge facing a long and multi-defendant

38 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

trial to give every defendant two opportunities to mis-

behave in front of the prospective jurors in ways that

could taint the jurors and prejudice the co-defendants.

We conclude, however, that the phrase “initially present

at trial” in a jury trial must refer to the day that jury

selection begins, though not to the precise moment that

one or more prospective jurors enter the courtroom. See,

e.g., Diaz, 223 U.S. at 455 (“In cases of felony our courts,

with substantial accord, have regarded [the defendant’s

right to be present] as extending to every stage of the

trial, inclusive of the empaneling of the jury and the

reception of the verdict, and as being scarcely less impor-

tant to the accused than the right of trial itself”); United

States v. Burke, 345 F.3d 416, 422 (6th Cir. 2003) (reviewing

then-existing law and determining that “trial” for pur-

poses of Rule 43 denoted the time between the em-

paneling of the jury and the delivery of the sentence);

Bradford, 237 F.3d at 1309-10 (joining “every other circuit

to address the issue” in holding that a trial commences

under Rule 43 when the jury selection process begins);

United States v. Krout, 56 F.3d 643, 646 (5th Cir. 1995)

(finding for purposes of Rule 43 that trial begins with

jury selection and noting that “our research[] does not

reveal a contrary interpretation of the Rule”). As the

First Circuit commented, “the concept that a defendant

could go through trial proceedings to the point of

selecting the entire jury and then, perhaps because he

was dissatisfied with the complement thereof, freely

depart, does not appeal to us.” United States v. Miller,

Nos. 09-1190, 09-1224, 09-1225, 39

09-1226, 09-1227 & 09-1251

463 F.2d 600, 603 (1st Cir. 1972) (same). Here, then, trial

commenced on the morning of February 6, for it was not

until then that the jury selection process began.

The district court’s order here, issued the day before

trial began, did not comply with the language of

Rule 43(c). As the Supreme Court has said, Rule 43 means

what it says. See Crosby v. United States, 506 U.S. 255, 261

(1993). But Federal Rule of Criminal Procedure 52(a) also

means what it says: “Any error, defect, irregularity, or

variance that does not affect substantial rights must be

disregarded.” The difference between issuing the order

on the day jury selection began and the day before it

began was an error that did not affect these defendants’

substantial rights. See Rogers v. United States, 422 U.S. 35, 40

(1975) (a violation of Rule 43 “may in some circum-

stances be harmless error”); Watkins, 983 F.2d at 1419

(applying harmless error standard to defendant’s ab-

sence from trial).

With the benefit of hindsight and reflection that appel-

late courts are allowed, we can say it would have been

better if the district court had brought the defendants to

the courtroom the morning of February 6, before any

prospective jurors were present, and asked them again

if they wished to reconsider their choices not to attend.

Assuming that the defendants had followed their

pattern of prior hearings, their expected refusal to

promise to behave would have justified their removal

and would have complied with Rule 43.

40 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

Defendants argue that we should not make that assump-

tion. We should assume instead, they argue, that they

might have changed their minds the next day if they

had been confronted with the immediacy of jury selection.

On this record, we are not persuaded. The failure to

repeat once more on the first day of trial the already-

repeated process did not affect the defendants’ substan-

tial rights. Unlike the defendant in Crosby, who fled before

trial commenced, these defendants did not flee or “fail

to appear.” See 506 U.S. at 261-62. On the day before

trial, the defendants had ample warning of the conse-

quences of their behavior. They were repeatedly warned

that the trial would go forward without them unless

they promised to behave, and they made a knowing

and voluntary choice. They were given an opportunity

to come to court the morning of trial, but chose not to

appear and refused to speak to their attorneys. At any

time during the trial, they could have returned to attend

the trial. They took none of those opportunities. On this

record, the purpose of Rule 43 certainly was served. See,

e.g., Cuoco v. United States, 208 F.3d 27, 31-32 (2d Cir.

2000) (in context of § 2255 motion arguing ineffective

assistance of counsel, commenting that Crosby’s holding

is limited to its facts, a defendant’s presence at the in-

ception of trial assures that any waiver is knowing,

and presuming that pre-trial waiver is effective if made

knowingly and voluntarily); Smith v. Mann, 173 F.3d 73, 76

(2d Cir. 1999) (distinguishing Crosby and Rule 43 from

petitioner’s habeas argument that his failure to appear

at his trial was not a knowing and voluntary waiver of

Nos. 09-1190, 09-1224, 09-1225, 41

09-1226, 09-1227 & 09-1251

his constitutional right to be present, explaining “the

case before us amply demonstrates that in some situa-

tions the requisite knowledge can be conclusively found

even if the defendant is not present when the trial be-

gins”). The courtroom door remained open to these

defendants on the morning of February 6 and every day

thereafter, if only they were willing to promise to behave

properly before the jury. The timing of the defendants’

knowing and voluntary waiver of their right to be present

did not affect their substantial rights or fail to serve the

purpose of protecting their right to attend their trial. In

short, the difference between removing these defendants

from trial the day before trial began and the day it

actually began was harmless.

The defendants argue that their absence from trial was

a structural violation that could not be harmless. We

disagree. It is important in this analysis to remember

the precise error in question. There was no constitu-

tional error because the defendants knowingly and volun-

tarily waived their presence by their conduct. The nar-

rower error under Rule 43 was only the precise timing

of the exclusion order. The defendants’ absence at the

instant the trial technically began was not “a defect af-

fecting the framework within which the trial proceeds,”

Arizona v. Fulminante, 499 U.S. 279, 310 (1991), nor was it

an error that “necessarily rendered a trial fundamentally

unfair,” Rose v. Clark, 478 U.S. 570, 577 (1986); cf. United

States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (erroneous

deprivation of the right to counsel of choice is a structural

error); Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)

42 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

(denial of the right to trial by jury by the giving of a

defective reasonable doubt instruction was a structural

error not subject to harmless error review); Vasquez v.

Hillery, 474 U.S. 254, 263-64 (1986) (discrimination in the

grand jury is not subject to harmless error review);

McKaskle v. Wiggins, 465 U.S. 168, 177-78 n.8 (1984) (denial

of the right to self-representation at trial is not subject

to harmless error review); Waller v. Georgia, 467 U.S. 39,

49 n.9 (1984) (denial of the right to a public trial is not

subject to harmless error review); Gideon v. Wainwright,

372 U.S. 335, 344-45 (1963) (complete denial of trial counsel

was a structural error requiring reversal); Tumey v. Ohio,

273 U.S. 510, 535 (1927) (fact that judge had a financial

interest in conviction warranted reversal despite a lack

of indication that bias influenced decisions).

To require automatic reversal for a violation of Rule 43

based on a defendant’s absence at the moment trial

begins would only reward these defendants for their ob-

structionist campaign. Delatorre and Benabe knowingly

and voluntarily waived their right to be present. They

maintained that waiver over the course of the entire trial.

They were in complete control of their own presence

or absence from the courtroom at any given moment

during the proceedings against them, including when

the case was called and the jury selected on February 6.

A per se rule would invite future defendants to attempt

similar obstructionist tactics, including waiving their

right to be present from their jail cell on the day of trial.

We see no reason to expand the limited list of structural

rights whose violation constitutes per se error by adding

Nos. 09-1190, 09-1224, 09-1225, 43

09-1226, 09-1227 & 09-1251

the defendants’ Rule 43 right to be present at the incep-

tion of trial. The timing of the trial court’s decision to

remove the defendants from the courtroom, although a

technical violation of Rule 43, was harmless.

III. Eyewitness Identifications

Guzman argues that the district court erred by refusing

to strike the testimony of witnesses who identified him

as the man who shot and murdered David Lazcano.

We conclude that the identifications were properly ad-

mitted.

Sonya Reynolds and Ebony Pool described the Au-

gust 11, 2002 murder of David Lazcano. Reynolds was

driving a car directly behind the car Lazcano was riding

in when both cars stopped at a traffic light. Pool was

Reynolds’ daughter and was riding in her car as a pas-

senger. Reynolds saw a skinny, dark-skinned Hispanic

man with short, dark hair approach. He was wearing

jeans and “a light blue or whitish T-shirt with a sterling

silver chain around his neck.” The man approached

the passenger side of the car directly in front of hers,

pulled out a gun, and started shooting. Reynolds began

screaming and the shooter looked at her and then ran

away. She gave her first description of the shooter ap-

proximately three months after the shooting, on Novem-

ber 22, 2002. On that day she identified Guzman as

the shooter in a photo lineup. Then, in March 2003, she

identified Guzman in a live lineup, although she stated

that she could not be absolutely certain of her identifica-

44 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

tion because of the amount of time that had elapsed. At

trial, Reynolds identified Guzman as the person in the

photo lineup whom she had identified as the shooter.

Pool also testified that she witnessed Lazcano’s

murder, identifying the shooter as a short, skinny, His-

panic man, with dark skin, “a peanut-shaped head,” and

close-cut hair, wearing blue jeans and a white T-shirt.

Pool saw the man walk up to the car in front of her, pull

out a gun, and shoot the passenger. The shooter looked

at Pool, giving her “a full glimpse of how he looked

like.” On November 22, 2002, Pool identified Guzman in

a photo array. In the March 2003 live lineup she ruled

out all but two men, one of whom was Guzman, but

stated that she could not identify him as the shooter

with certainty because too much time had passed. She

was not asked to identify Guzman at trial.

Guzman moved to suppress the out-of-court identifica-

tions made by Reynolds and Pool as the product of sug-

gestive identification procedures, but he asked the court

to wait to rule on his motion until after the witnesses

had testified. Following Reynolds’ and Pool’s testimony,

Guzman did not ask the court for a ruling on his motion

but the court denied his motion in a minute order.7

7

Because the district court ruled on the merits of Guzman’s

motion, we bypass the government’s argument that Guzman

filed his motion too late or abandoned it. But Guzman’s

failure to return to the issue prevented the issue from being

well developed before the district court.

Nos. 09-1190, 09-1224, 09-1225, 45

09-1226, 09-1227 & 09-1251

Our review of the district court’s denial is de novo, but

with “due deference” to the trial court’s findings of

historical fact. United States v. Harris, 281 F.3d 667, 670

(7th Cir. 2002) (resolving appropriate standard of review

of a trial court’s refusal to suppress an identification).

In reviewing a due process challenge to an identification,

we undertake a “well-settled, two-pronged analysis:

(1) whether the [out-of-court identification] process was

unduly suggestive, and (2) if so, whether the identifica-

tion was nevertheless sufficiently reliable.” United States

v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009); United States

v. Hawkins, 499 F.3d 703, 707 (7th Cir. 2007).

Guzman suggests that the out-of-court identification

procedures were too suggestive because the witnesses

first saw Guzman in a photo lineup and then in a live

lineup. But we have previously rejected this argument in

a case with very similar facts. See Harris, 281 F.3d at 670

(“there is nothing per se impermissible about placing

the same suspect in two different identification proce-

dures,” noting particularly that six months passed

between the photo lineup and the live lineup; it was

unlikely after the passage of so much time that the

witness was influenced by the earlier photograph). Even

if Guzman could satisfy the first prong, he fails to show

that the identifications made by Reynolds and Pool were

impermissibly unreliable. The jury heard testimony and

cross-examination regarding the highly charged, con-

fused scene at the shooting, and the amounts of time

that passed between the shooting, the photo array, and

then the live lineup. Eyewitness identification of a

46 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

stranger is not infallible, but the issues regarding the

reliability of these witnesses’ identification of Guzman

were fully aired on cross-examination for the jury to

evaluate them. The issues raised by Guzman on ap-

peal do not make Reynolds’ and Pool’s out-of-court

identifications inherently unreliable.

Guzman also argues that if the out-of-court identi-

fication procedures were tainted, Reynolds’ in-court

identification of Guzman should have been suppressed,

particularly because Reynolds was asked at trial if the

person she had identified in the photo lineup was in the

courtroom, but was not asked if she recognized Lazcano’s

shooter in the courtroom. Having found, however, that

there was nothing improperly suggestive or unreliable

about the Reynolds’ out-of-court identification, Reynolds’

in-court identification of Guzman as the person she had

identified as the shooter in the photo lineup was not

impermissible.

IV. Jury Instructions

The appellants contend that the district court made

three errors in instructing the jury, two in the guilt phase

of the trial and one in the penalty phase. A district court

has considerable discretion in phrasing, organizing, and

adapting jury instructions to the specific needs of the case,

as long as the instructions fairly and accurately sum-

marize the law and have support in the record. See, e.g.,

United States v. Jefferson, 334 F.3d 670, 672 (7th Cir. 2003).

We review de novo whether jury instructions “fairly and

Nos. 09-1190, 09-1224, 09-1225, 47

09-1226, 09-1227 & 09-1251

accurately summarize the law,” and we review the in-

structions in their entirety. United States v. Webber,

536 F.3d 584, 599 (7th Cir. 2008). We will reverse only if

the instructions, when viewed in their entirety, so mis-

guided the jury that they led to appellants’ prejudice.

Id. We find no error in the instructions the court gave

in this case.

A. Aiding and Abetting Instruction

The defendants challenge the district court’s aiding and

abetting instruction as applicable to the RICO conspiracy

charge. The district court gave this circuit’s pattern

aiding and abetting instruction:

A person who knowingly aids, counsels, commands,

induces or procures the commission of an offense

may be found guilty of that offense. That person

must knowingly associate with the criminal activity,

participate in the activity and try to make it succeed.

If a defendant knowingly caused the acts of another,

the defendant is responsible for those acts as though

he personally committed them.

The defendants contend that the jury should have been

given the following instruction applicable to the RICO

conspiracy charge:

With respect to Count One, a defendant who aids and

abets the commission of that offense may be found

guilty of that offense.

48 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

In order to aid and abet the commission of the offense

charged in Count One, a defendant must:

1) know of the conspiratorial agreement alleged

in Count One;

2) knowingly assist in the commission of at least

two of the predicate acts set forth in Paragraph 11

of Count One; and

3) try to make the conspiratorial agreement alleged

in Count One succeed.

The key difference is the defense’s proposed require-

ment that the defendant must have knowingly assisted

in the commission of at least two of the predicate acts

of racketeering listed in the indictment.

In support of their proposed instruction, the defendants

argue that the Seventh Circuit pattern instruction given

by the court was inappropriate in this case because the

conspiracy charged was a RICO conspiracy. But their

argument is based on an incorrect view of the require-

ments for proving a defendant’s liability for a RICO

conspiracy. The RICO conspiracy charged in this case

under 18 U.S.C. § 1962(d) alleged a conspiracy to violate

18 U.S.C. § 1962(c), which makes it unlawful “for any

person employed by or associated with any enterprise

engaged in, or the activities of which affect, interstate

or foreign commerce, to conduct or participate, directly

or indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or collection

of unlawful debt.” RICO defines a pattern of racketeering

Nos. 09-1190, 09-1224, 09-1225, 49

09-1226, 09-1227 & 09-1251

activity to require at least two acts of racketeering

activity, which is defined in terms of a long list of crimes.

See 18 U.S.C. § 1961(1), (5).

To prove primary liability for a RICO conspiracy under

section 1962(d), the government must prove only that a

particular defendant agreed that a member of the con-

spiracy would commit two predicate racketeering acts,

not that the particular defendant committed or agreed

to commit two predicate acts himself. See United States v.

Salinas, 522 U.S. 52, 65-66 (1997) (resolving circuit split

on this question). A RICO conspiracy case does not

require proof that any racketeering acts were actually

carried out. Id. at 63 (noting absence of overt-act require-

ment under section 1962(d)). Thus, by extension, to

prove aiding and abetting in a RICO conspiracy, the

government must prove that a defendant aided and

abetted in the conspiratorial agreement, not in any

alleged predicate acts of racketeering activity. The trial

court instructed the jury correctly.

B. Pattern of Racketeering Activity

Susinka argues that the court erred in agreeing with

the government’s request to modify the Seventh Circuit

pattern instruction defining “pattern of racketeering

activity” to include the comment that it is not necessary

for the government to prove that any defendant agreed to

the commission of a particular act at a particular time

or place. Susinka argues that the amendment misled

the jury because a “pattern of racketeering activity”

50 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

instruction must point to specific predicate acts within

the indictment. Otherwise, he argues, the jury is invited

to search for bad acts by the defendants to serve as predi-

cate acts. Viewing the amendment to the “pattern of

racketeering activity” instruction given by the trial court

as part of a whole, we do not share Susinka’s concern

that the jury may have been misled. The predicate acts

were properly defined in the instructions. It was not

necessary for the government to prove that any of these

acts occurred at a particular time or place, only that the

defendants conspired to commit two of the predicate

acts. The instruction was correct.

C. Pinkerton Instruction

The defendants also contend the district court erred

by giving a Pinkerton instruction in the penalty phase of

trial when a similar instruction had not been given in

the guilt phase. The maximum penalty on a criminal

RICO charge depends on the penalties for the underlying

racketeering activity: the maximum sentence is 20 years

unless the RICO violation is “based on a racketeering

activity for which the maximum penalty includes life

imprisonment.” 18 U.S.C. § 1963(a). After the jury had

reached its verdicts of guilty on most charges, including

the RICO conspiracy charge, the district court instructed

the jury to determine whether the defendants had been

criminally involved in four of the murders included in

the indictment. Such a jury finding was necessary to

comply with the requirements of Apprendi v. New Jersey,

530 U.S. 466 (2002).

Nos. 09-1190, 09-1224, 09-1225, 51

09-1226, 09-1227 & 09-1251

To guide the jury in making these determinations,

the court gave the jury a pattern instruction based on

Pinkerton v. United States, 328 U.S. 640, 647-48 (1946): “A

conspirator is responsible for offenses committed by his

fellow conspirators if he was a member of the conspiracy

when the offense was committed and if the offense

was committed in furtherance of and as a foreseeable

consequence of the conspiracy.” The defendants argue

first that the Pinkerton instruction should have been

given, if at all, in the first guilt phase of the jury deter-

minations, and that giving the Pinkerton instruction

only in the second penalty phase risked broadening the

scope of the defendants’ criminal liability. We disagree.

Pinkerton does not define participation in a conspiracy.

It confers vicarious responsibility for acts of co-conspira-

tors, and the district court reasonably concluded that

such an instruction would be inappropriate in the

verdict phase. We have noted the need for caution in

using Pinkerton instructions in RICO conspiracy charges.

See United States v. Neapolitan, 791 F.2d 489, 505 n.7

(7th Cir. 1986), modified on other grounds by Brouwer

v. Raffensperger, Hughes & Co., 199 F.3d 961 (7th Cir.

2000), quoting U.S. Department of Justice, RICO: A

Manual for Federal Prosecutors, at 73-74 (1985) (“the combi-

nation of RICO and Pinkerton could lead to unwarranted

extensions of criminal liability”). Jury instructions for

RICO conspiracies are challenging enough without

Pinkerton. The district court exercised its discretion ap-

propriately here by separating the jury’s task into two

phases. A verdict of guilty did not require a determination

52 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

that a particular defendant participated in the full scope

of the Insane Deuces racketeering conspiracy, with all of

the murders, shootings, and drug deals. But once the jury

found the defendants guilty of the RICO conspiracy,

the maximum penalties they each faced depended on

whether the involvement of each in the conspiracy in-

cluded responsibility for murders or drug crimes serious

enough to authorize a life sentence. Each defendant

could be held responsible for the various predicate acts

charged, either as a direct participant, as an aider-and-

abetter, or under Pinkerton. In the penalty phase, the

Pinkerton instruction was appropriate.

The defendants also cite cases criticizing more

generally the use of special verdicts in criminal cases.

Benabe Br. at 51-52, citing United States v. Jackson, 542

F.2d 403, 412 (7th Cir. 1976); United States v. North, 910 F.2d

843, 911 (D.C. Cir.), modified on other grounds, 920

F.2d 940 (D.C. Cir. 1990). The cited cases did not address

the special problems that arise under Apprendi. The

district court’s approach here was a sound way

to address the problem of determining the maximum

penalties for these defendants.

Third, defendants argue that the Pinkerton instruction

violated Federal Rule of Criminal Procedure 30(a), which

requires a party to request jury instructions at the close

of the evidence unless the court specifies an earlier time.

The government did not request the Pinkerton instruc-

tion until after the jury had begun its deliberations on

the guilt phase. We find no error. Defendants have not

Nos. 09-1190, 09-1224, 09-1225, 53

09-1226, 09-1227 & 09-1251

cited any cases interpreting Rule 30 to impose the imprac-

tical requirement that all penalty-phase instructions

be resolved before closing arguments at the guilt phase

of a trial. The district court could reasonably defer the

phase-two instruction issues until after the jury delibera-

tions for phase one had begun. The district court did not

err in giving the Pinkerton instruction in the penalty

phase of the trial.

V. Providing Jury with Partial Transcripts

During its deliberations, the jury requested transcripts

of Orlando Rivera’s testimony from several specific

witnesses on particular days. Juarez objected. He argued

that the requested transcripts “unduly highlight some

evidence that was brought in” about him, and that the

court should provide the full transcript of cross-exam-

ination and direct testimony of those witnesses after

reading back the full transcripts in open court. The court

overruled Juarez’s objection and provided the jurors the

specific portions of the transcripts they requested along

with the following instruction:

You must . . . weigh all the trial evidence and not

just one particular portion of the trial. Also please

note that each of the witnesses’ direct testimony you

have requested was also cross-examined by the de-

fense. The entire testimony of each witness you have

identified can be made available to you at your writ-

ten request.

54 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

Juarez, joined by each of his co-defendants, appeals this

decision. Susinka writes separately to supplement the

arguments raised by Juarez in his brief. We review a

district court’s response to a jury question for abuse of

discretion. United States v. Danford, 435 F.3d 682, 687 (7th

Cir. 2006). Here again, we find no abuse of discretion.

The defendants argue that the court should have read

aloud in open court all of the testimony from each witness

in question, including cross-examination, and erred in

sending to the jury room only the portions of the testi-

mony that the jury requested. Juarez bases his argument

on the “possibility” that the jury might have placed

undue emphasis on a small part of the testimony and

failed to view the evidence as a whole. Susinka is a bit

more specific, arguing that one of the requested wit-

nesses was the only witness to link him to the February 23,

2002 shooting, so that permitting the jury to be exposed

to the transcript of his direct examination without cross-

examination must have been unduly prejudicial.

These arguments are speculative at best, and the de-

fendants’ concerns were addressed effectively by the

court’s instruction that the jury consider all the evidence,

not just one portion of the trial. We assume that the

jury followed the instructions it was given. See United

States v. Zahursky, 580 F.3d 515, 525-26 (7th Cir. 2009);

United States v. Ochoa-Zarate, 540 F.3d 613, 620 (7th

Cir. 2008).

This was a lengthy trial, followed by lengthy delibera-

tions. A hard-working jury, sifting through memories

Nos. 09-1190, 09-1224, 09-1225, 55

09-1226, 09-1227 & 09-1251

and notes about weeks of evidence, asked for specific

portions of the evidence. Responding to the request as

defendants now argue, by forcing jurors, judge, counsel,

and defendants to listen to a deadly recitation of days

of testimony that the jury did not ask for or need, would

have bordered on cruelty. The court properly exercised

its discretion by giving the jury exactly what it said it

needed, with appropriate cautions. The court did so after

weighing the unlikely possibility that the jury might

improperly overemphasize some testimony (in spite of

the court’s cautionary instruction) with the interest

of promoting efficient jury deliberations and not unnec-

essarily adding to the burden of an already heavily bur-

dened jury. We find no abuse of discretion.

VI. Jurors 79 and 384

During voir dire, the potential jurors were asked

whether they had ever applied for or held a job with the

federal government, whether they were familiar with

the Aurora area, whether they had any awareness of the

facts of the case, and whether they had any friends of

relatives who were involved in gangs. Neither Juror 79

nor Juror 384 indicated that they worked for the govern-

ment, would be prejudiced by any knowledge they had

of the Aurora area, or were familiar with the facts of the

case. Juror 384 had no friends or family involved in gang

activity. Juror 79, when asked that question, stated that

her nine-year-old child had been in a gang for two years,

until age eleven. No follow-up questions to her response

56 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

were asked during voir dire. Jurors 79 and 384 were

seated on the jury. After the trial began, the judge re-

peatedly asked the seated jurors whether anyone had

tried to talk to them about the case, whether they had

talked to anyone about the case, or whether they had

done any research outside the courtroom. Neither Juror 79

nor Juror 384 answered these inquiries affirmatively.

Nearly a month after the verdict was rendered, the

defendants raised several issues in the district court

related to the impartiality of Jurors 79 and 384. In large

part these issues were based on an affidavit from

Rachel Perez, who is a cousin of defendant Salazar and

the sister of defendant Steven Perez, who was tried

in the second trial. Ms. Perez attended the first trial

involving these appellants. After the verdicts, counsel

for the defense were made aware that Ms. Perez believed

that she recognized Jurors 79 and 384. In an affidavit,

she stated that she had worked with each of those jurors

at the post office in Aurora. She also said that she had

earlier worked with someone she believed to be Juror 79

at a company called BRK. She recalled in her affidavit

that she had had a conversation with Juror 79 at their

place of employment about the charges brought against

her brother and cousin, Perez and Salazar. Specifically,

in the fall of 2005, Ms. Perez agreed to lend her car

to Steven Perez, and when she went outside she encoun-

tered a female co-worker. When her brother arrived,

Ms. Perez introduced him to this person. Steven Perez

was very angry about something at that time, and the

female co-worker later described him to Ms. Perez as

Nos. 09-1190, 09-1224, 09-1225, 57

09-1226, 09-1227 & 09-1251

“crazy.” Approximately a week after this incident,

Steven Perez was arrested and charged, and Ms. Perez

told the co-worker about her brother’s arrest and said that

the newspapers were reporting that Salazar would also

be charged. In her affidavit, Ms. Perez attested that the

female co-worker with whom she had had these contacts

and conversations several years earlier was Juror 79.

Two other issues arose from things Juror 79 said to

the foreperson. On May 30, 2008, the trial court held a

hearing at which it questioned the jury foreperson. The

foreperson said that Juror 79 had informed her that her

young son, who had been involved with a gang from

age nine to eleven, had been a member of the Insane

Deuces. Juror 79 also had said that she “knew of” one

of the defendant’s family members who attended court,

and that she had seen some of those family members

while shopping and on the train coming to or leaving

court over the course of the trial. Juror 79 told

the foreperson that she was concerned about seeing

the defendants’ family members on the train and was

“a little frightened.”

The defendants argue that Jurors 79 and 384 failed to

honestly answer material questions at voir dire, and that,

if the defendants had known the truth, Jurors 79 and

384 would have been challenged for cause. The de-

fendants also argue that the trial court erred in denying

Salazar’s request that it hold a hearing at which the

two jurors could be thoroughly questioned regarding

their alleged omissions. We review a trial court’s deter-

58 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

mination that a party has failed to show a juror was

dishonest at voir dire for an abuse of discretion. We also

review a trial court’s decision to deny a motion for a new

trial on grounds of juror bias for an abuse of discretion.

See Arreola v. Choudry, 533 F.3d 601, 607 (7th Cir. 2008).

Neither the allegations raised in Rachel Perez’s af-

fidavit nor the foreperson’s testimony required that the

trial court hold a hearing so that Jurors 79 and 384 could

be questioned about any preexisting, intrinsic bias.

“[D]ue process means a jury capable and willing to

decide the case solely on the evidence before it, and a trial

judge ever watchful to prevent prejudicial occurrences

and to determine the effect of such occurrences when

they happen.” Oswald v. Bertrand, 374 F.3d 475, 478 (7th

Cir. 2004), quoting Smith v. Phillips, 455 U.S. 209, 217

(1982). While due process may require a hearing to deter-

mine whether extraneous contacts may have affected a

jury’s ability to be fair, the standard applies only to

prejudicial extraneous contacts, not to preexisting juror

bias. United States v. McClinton, 135 F.3d 1178, 1186 (7th

Cir. 1998); Artis v. Hitachi Zosen Clearing Inc., 967 F.2d

1132, 1141 (7th Cir. 1992). A post-verdict inquiry into

intrinsic juror influences is almost never justified. See

Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107,

117-20 (1987) (post-verdict discovery of alcohol and

drug use by members of the jury was an intrinsic in-

fluence not requiring a hearing under the Sixth Amend-

ment: “It is not at all clear that the jury system could

survive such efforts to perfect it.”); Arreola, 533 F.3d at 606

(in prisoner’s suit alleging that doctor’s treatment of his

Nos. 09-1190, 09-1224, 09-1225, 59

09-1226, 09-1227 & 09-1251

ankle injury constituted an Eighth Amendment viola-

tion, juror’s post-trial revelation of failure to disclose

a prior ankle injury in voir dire was an intrinsic influence

not requiring evidentiary hearing), citing Marquez v. City

of Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005) (“[A]

juror’s personal experience . . . does not constitute ex-

traneous prejudicial information.”) (internal quotation

omitted). The various bases on which the defendants

brought their post-verdict contentions that Jurors 79 and

384 may have harbored secret bias were intrinsic, not

extrinsic, and no hearing was required.

The defendants also contend that they are entitled to a

new trial because they believe that Jurors 79 and 384 lied

about these issues at voir dire. To obtain a new trial, the

defendants must first demonstrate that Juror 79 or 384

failed to answer honestly a material question on voir dire,

and then further show that a correct response would

have provided a valid basis for a challenge for cause.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.

548, 556 (1984).

As for Juror 79, the trial court did not find that she

withheld any information that might have indicated a pre-

existing bias, and on appeal, the defendants have not

presented us with any reason to disturb that conclusion.

Rachel Perez believed that Juror 79 had worked with her

at BRK and at the Aurora post office and that she had

talked with her about her brother’s and cousin’s arrest

and indictment. According to her jury questionnaire,

Juror 79 had no history of employment with BRK or

60 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

with the United States Postal Service. Also, the foreperson

testified that Juror 79 had said that she “knew of” one

of the defendants’ family members who attended the

trial (correcting the court to clarify that Juror 79 had not

said that she knew someone in the courtroom, only that

she knew of someone) contradicting Ms. Perez’s account

that she and Juror 79 had worked together at two dif-

ferent jobs and that they were friendly with one another.

It was entirely within the trial court’s discretion to con-

clude that Ms. Perez was mistaken, that Juror 79

did not have a history of employment with the United

States Postal Service, and that the contacts that Ms. Perez

recounted did not happen, at least not with Juror 79.8

We see no reason to overturn that finding on appeal.

We confess that our eyebrows went up when we read

that Juror 79’s young son had been a member of the

Insane Deuces. But the record shows that Juror 79 an-

swered correctly during voir dire that her son had been

involved in a gang. She did not say that it was the Insane

Deuces, but nobody asked her. The defense counsel did

not ask any follow-up questions or ask the judge to ask

them. By failing to do so, they lost their ability to seek

8

The district judge also was rightly suspicious of the timing

of Ms. Perez’s revelations. Ms. Perez had attended the trial,

and her affidavit did not contain the type of information that

would have been discovered only after the verdict. Yet,

Ms. Perez did not apprise defense counsel of her suspicions

concerning Jurors 79 and 384 until after the verdict had

been rendered.

Nos. 09-1190, 09-1224, 09-1225, 61

09-1226, 09-1227 & 09-1251

a new trial on this basis. See McDonough, 464 U.S. at 550

n. 2; United States v. Arocho, 305 F.3d 627, 635 (7th Cir.

2002) (defense counsel’s failure to follow-up on prospec-

tive juror’s answer that he knew a potential witness

“in passing” would not allow counsel to turn their misun-

derstanding of vague answer into a deliberate lie by

juror), superseded by statute on other grounds, citing

Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1142

(7th Cir. 1992) (where juror revealed in voir dire that he

had been involved in union affairs, party’s failure to

question juror further as to union involvement until

after unfavorable verdict looked like “sandbagging”).

We are also not troubled that Juror 79 reported seeing

members of the defendants’ families on her way to and

from the courthouse and outside of the courtroom in

her daily life. The defendants make no allegation that

she had any interaction or contact with these family

members. When the trial judge asked the jury if anyone

had contacted them to speak about the case, Juror 79

was under no duty to report that she had merely recog-

nized members of the defendants’ families outside the

courtroom. Nothing suggested to the trial court, and

nothing suggests to us on appeal, that Juror 79 inten-

tionally withheld any information or failed to honestly

answer these repeated inquiries by the trial court, or that

she became biased against the defendants because of

these random encounters.

Returning to Juror 384, the defendants have not identi-

fied any voir dire question related to Aurora that she

62 Nos. 09-1190, 09-1224, 09-1225,

09-1226, 09-1227 & 09-1251

failed to answer truthfully. Although she said in her

written responses that she had worked for the United

States Postal Service in Aurora, the district court sur-

mised that Juror 384 felt she did not need to indicate

that she had worked for the postal service during voir dire

because she had already said as much in her written

questionnaire. Such a mistake by prospective jurors is

both common and understandable. Nothing suggests

that Juror 384 intentionally omitted this information

during the face-to-face questioning. She certainly did not

conceal the information. Defense counsel could have

pursued further both the written response and the

silence in court; they did neither. Defendants also have

not established, as they must, that if they had known of

Juror 384’s postal employment, the information would

have been grounds to challenge her for cause. See Dennis

v. United States, 339 U.S. 162, 171-72 (1950) (government

employees are not barred from serving on a jury in a

criminal case); United States v. Polichemi, 219 F.3d 698,

704 (7th Cir. 2000) (government employment is not suffi-

cient to excuse a juror for cause). After all, several

jurors with connections to state and federal government

agencies served on this jury. Here again, we find no error.

Conclusion

In our companion order, we modify Susinka’s sentence

to impose a term of three years of supervision upon

his release from prison. In all other respects, we affirm

the convictions and sentences of defendants Bolivar

Nos. 09-1190, 09-1224, 09-1225, 63

09-1226, 09-1227 & 09-1251

Benabe, Julian Salazar, Juan Juarez, Christian Guzman,

Stephen Susinka, and Fernando Delatorre.

8-18-11