United States v. Manuel Leija-Sanchez , 820 F.3d 899 ( 2016 )

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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-‐‑1393, 14-‐‑1584 & 14-‐‑1589
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
JULIO LEIJA-‐‑SANCHEZ, MANUEL LEIJA-‐‑SANCHEZ, and GERARDO
SALAZAR-‐‑RODRIGUEZ,
Defendants-‐‑Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 CR 224 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED OCTOBER 1, 2015 — DECIDED MAY 2, 2016
____________________
Before FLAUM, EASTERBROOK, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. An indictment charged four
persons with arranging the murder of Guillermo Jimenez
Flores (known as Montes) in Mexico in order to reduce com-‐‑
petition against a Chicago-‐‑based criminal organization that
created bogus immigration documents. The district court
dismissed the principal count of this indictment, ruling that
2 Nos. 14-‐‑1393 et al.
it proposed the extraterritorial application of U.S. law, but
we reversed. United States v. Leija-‐‑Sanchez, 602 F.3d 797 (7th
Cir. 2010). We held that 18 U.S.C. §1959(a)(1), a part of RICO
that forbids murder in aid of racketeering, applies to gangs
whose activities are designed to affect commerce in the
United States, even though some important acts take place
abroad. We relied on United States v. Bowman, 260 U.S. 94
(1922), which took the same view of a statute designed to
protect the United States Treasury from frauds, no matter
where in the world the fraud was hatched, and announced
that extraterritorial application of criminal laws is proper—
when the U.S. statute accords with the law of nations—even
when extraterritorial application of civil laws would not be.
On remand, one defendant pleaded guilty. (He has not
appealed.) A jury convicted the other three of violating not
only §1959 but also 18 U.S.C. §956(a)(1), which forbids any
person “within the jurisdiction of the United States” from
conspiring to commit a murder abroad. All defendants were
sentenced to life in prison for the §1959 offense and a racket-‐‑
eering-‐‑conspiracy count, 18 U.S.C. §1962(d), plus 20 years for
the §956 offenses. All defendants also were convicted of con-‐‑
spiring to produce false identification documents. 18 U.S.C.
§371. The sentences on all counts run concurrently.
Appellants’ principal argument is that our 2010 decision
should be overruled. They rely on Morrison v. National Aus-‐‑
tralia Bank Ltd., 561 U.S. 247 (2010), which reiterated the pre-‐‑
sumption against extraterritorial application of civil statutes.
Yet our 2010 decision recognized that U.S. law has such a
presumption and thought it not controlling, for two reasons:
first, Bowman distinguishes criminal from civil law, holding
that different rules apply; second, the murder in Mexico was
Nos. 14-‐‑1393 et al. 3
arranged and paid for from the United States, and was
committed with the goal of protecting a criminal organiza-‐‑
tion that conducted business in the United States in order to
defraud officials of the United States government as well as
employers in the United States. The murder thus had ample
links to the United States, and since §1959 covers racketeer-‐‑
ing in foreign commerce as well as in interstate commerce,
we thought that its language applies.
Morrison does not undermine our 2010 decision. It does
not mention either Bowman or §1959. A decision such as
Bowman, holding that criminal and civil laws differ with re-‐‑
spect to extraterritorial application, is not affected by yet an-‐‑
other decision showing how things work on the civil side.
More: Morrison itself saw no problem of extraterritoriality in
applying the federal securities laws to foreign trading in se-‐‑
curities registered in the United States. 561 U.S. at 266–70. In
Morrison the Court held that Australian investors could not
use U.S. securities laws to obtain relief with respect to trades
that occurred in Australia and concerned the securities of an
Australian issuer. That the fraud had in some sense been
planned in the United States did not matter, the Court held,
when the issuer, the trading, and the victims all were outside
the United States. In our case, by contrast, the victims of the
murder-‐‑for-‐‑hire scheme include the United States govern-‐‑
ment and U.S. business.
Two appellants—Gerardo Salazar-‐‑Rodriguez and Ma-‐‑
nuel Leija-‐‑Sanchez—have a more substantial challenge to
their §956 convictions. They were in Mexico when Julio Lei-‐‑
ja-‐‑Sanchez issued the contract to rub out Montes and con-‐‑
tend that they were not “within the jurisdiction of the United
States” when they conspired with Julio. They read “the ju-‐‑
4 Nos. 14-‐‑1393 et al.
risdiction of the United States” to mean “territory subject to
United States sovereignty.” The prosecutor, by contrast,
reads this phrase to denote the regulatory rather than the ter-‐‑
ritorial “jurisdiction” of the United States. Given our 2010
decision, the United States had the authority to penalize this
murder, and “jurisdiction” in §956 means no more than that.
The prosecutor contends that Ford v. United States, 273 U.S.
593, 622–24 (1927); United States v. Amawi, 695 F.3d 457, 494
(6th Cir. 2012); United States v. Fernandez, 559 F.3d 303, 325
(5th Cir. 2009); and United States v. Wharton, 320 F.3d 526,
537–38 (5th Cir. 2003), support this understanding—though
Ford does not concern §956 and the meaning of “jurisdiction”
was not contested in the other cases. The district court gave
an instruction tracking the prosecutor’s view.
The Supreme Court has remarked that “jurisdiction … is
a word of many, too many, meanings”. Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83, 90 (1998). The prosecu-‐‑
tor’s understanding of “jurisdiction” would make that word
surplus, because every federal criminal statute applies only if
the United States has prescriptive authority and the district
court has subject-‐‑matter jurisdiction (supplied by 18 U.S.C.
§3231). We recognize that Congress sometimes adds unnec-‐‑
essary language, just to be sure. Still, using a word such as
“jurisdiction” without a definition or cross-‐‑reference begs for
trouble. Maybe the word means the territory of the United
States, see 18 U.S.C. §5; maybe it means prescriptive authori-‐‑
ty; maybe it means something like the “special maritime and
territorial jurisdiction of the United States,” a phrase defined
in 18 U.S.C. §7. A court would be sorely tempted to invoke
the Rule of Lenity and hold that ambiguity must be resolved
in favor of the accused.
Nos. 14-‐‑1393 et al. 5
This is as far as appellants get, however, because they did
not object in the district court. When the district judge asked
whether appellants had any objections to the instructions on
§956, their lawyers stood mute. The prosecutor argues that
this was a waiver, but even if we treat it as just a forfeiture it
dooms the argument to review under the demanding plain-‐‑
error standard. See Molina-‐‑Martinez v. United States, No. 14–
8913 (U.S. Apr. 20, 2016), slip op. 4–5; United States v. Olano,
507 U.S. 725, 732–33 (1993). One element of this standard is
that an error be plain—“that is to say, clear or obvious.” Mo-‐‑
lina-‐‑Martinez at 4. The meaning of the word “jurisdiction” is
not “clear or obvious.” Judicial explication might add clarity,
but appellants do not contend that any court of appeals has
given §956 the meaning they prefer.
Even plain errors just set up the opportunity for reversal;
a court of appeals has discretion to affirm when the error
does not seriously affect the fairness, integrity, or public per-‐‑
ception of judicial proceedings. Molina-‐‑Martinez at 5. We do
not see any problem with the §956 convictions under that
standard. Although appellants set out to kill Montes, the
§956 convictions do not add to their imprisonment. Twenty-‐‑
year sentences that run concurrently with natural-‐‑life sen-‐‑
tences can’t be called miscarriages of justice. The only mar-‐‑
ginal penalty for each §956 conviction is the $100 special as-‐‑
sessment. That assessment abrogates the concurrent-‐‑
sentence doctrine, see Ray v. United States, 481 U.S. 736
(1987), but it does not remove the court of appeals’ discre-‐‑
tion to decide that it would be just to let a concurrent sen-‐‑
tence stand on plain-‐‑error review. We leave for another day
the meaning of “jurisdiction” in §956.
6 Nos. 14-‐‑1393 et al.
All defendants were sentenced to life imprisonment for
racketeering conspiracy, in violation of §1962(d), as well as
for the §1959 offense. The usual maximum penalty for a vio-‐‑
lation of §1962 is 20 years, but “if the violation is based on a
racketeering activity for which the maximum penalty in-‐‑
cludes life imprisonment” then the §1962 maximum be-‐‑
comes life. 18 U.S.C. §1963(a). The prosecutor contended in
the district court that three of defendants’ predicate crimes
carry maximum sentences of life: first-‐‑degree murder in vio-‐‑
lation of Illinois law, plus each §956 count. The jury returned
special verdicts that supported each theory, and the judge
sentenced all three defendants to life imprisonment on the
§1962(d) convictions.
Defendants contest those sentences on appeal. Two say
that their §956 convictions are invalid (that’s the subject
we’ve just covered), and all three say that Illinois does not
understand its murder statute to apply when the death oc-‐‑
curs out of state, even if a contract murder was arranged in
Illinois. All defendants also contend that the §956 convic-‐‑
tions do not support a life sentence for RICO conspiracy be-‐‑
cause their sentences under §956 were 20 years (though the
statutory maximum under §956 is life).
To these arguments, the prosecutor has essentially no re-‐‑
ply. The United States does not contend that Illinois would
apply its murder statute when the death occurs out of state.
It does not rely on the fact that murder can produce a life
sentence in Mexico, perhaps because the definition of mur-‐‑
der as a racketeering act in 18 U.S.C. §1961(1)(A) does not
include foreign law. And the United States does not try to
defend the life sentences on the basis of the §956 convictions,
Nos. 14-‐‑1393 et al. 7
perhaps because §1961(1) does not include §956 among rack-‐‑
eteering acts.
Instead the United States asks us to disregard all of de-‐‑
fendants’ arguments about the RICO-‐‑conspiracy sentence on
the ground that our 2010 decision implicitly rejected them. It
did no such thing. It concerns only §1959, which provides
life sentences for murders in the course of RICO enterprises
without the need to ask whether some other statute also does
so. We therefore conclude that the prosecutor has forfeited
any defense of the life sentences defendants received for vio-‐‑
lating §1962(d), and we remand with instructions to reduce
those sentences to 20 years’ imprisonment. Resentencing on
other counts is unnecessary, however, because this change
does not affect the life sentences under §1959, which are re-‐‑
quired by the statute. (The only other penalty authorized by
§1959(a)(1) in the event of murder is capital punishment.)
Defendants make one final argument: that the prosecu-‐‑
tor spoiled the trial by contending in closing argument that
Montes had been hit by 15 bullets.
They do not deny sending a hit man to kill Montes. They
hired someone with the street name “Chapulin” to do the
deed. He bragged that he had done so, with the aid of
“Chatito,” and some of his statements were recorded. In one
recording Chapulin said that he emptied a clip of 15 car-‐‑
tridges into Montes’s body and would have fired more, but
that he had left his 28-‐‑round clip in his car. A pathologist
who examined the body in Mexico concluded that 21 bullets
entered Montes’s body. Defendants contend that this shows
that Chapulin was lying when he claimed credit and that
someone else must have carried out the killing. If Montes
was killed by a random street thug or robber, defendants’
8 Nos. 14-‐‑1393 et al.
sentences would be lower even though their convictions for
conspiring to murder him would stand.
During his closing argument, the prosecutor contended
that the pathologist had miscounted and that only 15 slugs
had entered Montes’s body. Appellants insist that prosecu-‐‑
tors cannot contradict their experts, but the rule that litigants
vouch for their witnesses was jettisoned by Fed. R. Evid. 607
and has little support elsewhere. See, e.g., Chambers v. Missis-‐‑
sippi, 410 U.S. 284, 296–98 (1973). Our decision in United
States v. Klebig, 600 F.3d 700 (7th Cir. 2010), on which de-‐‑
fendants rely, does not resurrect the voucher doctrine in the
teeth of Rule 607. The problem with the prosecutor’s closing
argument in Klebig was not just that the prosecutor disa-‐‑
greed with an expert witness, but that the prosecutor then
made a claim (about how markings on the barrel of a sawed-‐‑
off shotgun fit with those on a silencer) that had no support
in the record. In this case, the prosecutor tried to show how
the pathologist’s own observations supported a bullet count
of 15 better than 21. The district court instructed the jury that
the prosecutor’s argument was not itself evidence and that
the verdict had to be based on what the witnesses said. That
sufficed. The district judge did not abuse her discretion in
handling this subject.
For what it is worth, we don’t see why the bullet count
matters. Suppose Montes was killed by 21 bullets, as de-‐‑
fendants insist. This may mean that Chapulin was lying
about (or forgot) which clip he used, not that he was lying
about shooting Montes. Or it may mean that Chatito fired
some shots. The defense’s argument that someone else just
happened to kill the target of a murder-‐‑for-‐‑hire plot before
the hit man got there relies on nothing but speculation, and
Nos. 14-‐‑1393 et al. 9
the probability that an assassin’s target would meet a violent
death some other way, but at the same time, is low. The ver-‐‑
dict and life sentences cannot be blamed on a debate be-‐‑
tween the prosecutor and the pathologist about how to
count the holes in Montes’s body. Any error was harmless.
The sentences on the §1962(d) count are reduced to 20
years, and the judgments otherwise are
AFFIRMED.