United States v. Rivera, Lissett , 136 F. App'x 925 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 31, 2005
Decided June 16, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Nos. 02-3238, 02-4193, 03-1446 & 03-1270 Appeals from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 98 CR 923
LISSETT RIVERA, OMAR FELICIANO, Blanche M. Manning, Judge.
ALINA LIS, and JOSEPH MIEDZIANOWSKI,
Defendants-Appellants.
Order
Lissett Rivera, Omar Feliciano, and Alina Lis have been convicted of conspiring to
distribute more than five kilograms of cocaine. Rivera’s sentence of 97 months’ im-
prisonment is the subject of an opinion published contemporaneously with this order.
Feliciano and Lis each received 360-month sentences. Joseph Miedzianowski, a police
officer who used his position to protect this drug ring (in which he took part as a prin-
cipal), has been convicted not only of the conspiracy but also of operating an organi-
zation through a pattern of racketeering and of additional offenses; his sentence is life
imprisonment.
Many of the issues that defendants press on appeal have no potential to affect the
judgments. For example, three defendants contend that the evidence did not permit a
rational jury to conclude that the conspirators cooked powder cocaine into crack at
8543 West Bryn Mawr. Let us suppose that this is so. Take away the roughly 25
kilograms of cocaine said to have been processed there and more than 300 remain.
The jury’s decision that the defendants conspired to distribute five or more kilos,
which authorizes a sentence as high as life imprisonment, is unaffected by details
Nos. 02-3238 et al. Page 2
about 8543 West Bryn Mawr. See Griffin v. United States, 502 U.S. 46 (1991). Nor is
this issue material to the decision how much of the statutory maximum each defen-
dant must serve. Conspiring to distribute more than 150 kilograms of cocaine places
one at Level 38, the highest possible under the drug-distribution table. Amounts over
150 kilograms played no role.
Another irrelevance is Miedzianowski’s contention that one of the instructions
about predicate offenses under the RICO count is defective because it referred to the
state crime as “extortion” rather than “intimidation,” the caption on 720 ILCS 5/12-
6. Shakespeare wondered “what’s in a name?”; for purposes of federal criminal law the
answer is “nothing.” Substance rather than nomenclature matters to the classifica-
tion of predicate offenses, and we have held that the offense defined by 720 ILCS
5/12-6 meets the federal definition of extortion. See United States v. McNeal, 77 F.3d
938, 944–45 (7th Cir. 1996). Anyway, if this predicate offense were annulled, six
would remain, four more than needed to support the RICO verdict.
Other arguments, though having some potential to affect the verdicts or sen-
tences, have no oomph on the merits. For example, three defendants contend that the
verdict is spoiled by the district judge’s decision to admit as evidence a letter written
by one conspirator who was not on trial. The letter is inadmissible, defendants insist,
because the prosecution did not establish that any of them read it. But any state-
ment made by a conspirator during, and in furtherance of, a conspiracy is admissible
against all co-venturers. Whether any other conspirator heard (or, in this instance,
saw) that statement is irrelevant; agency, not knowledge, is the theory of admissibil-
ity. The district judge made the necessary preliminary findings, see United States v.
Martinez de Ortiz, 907 F.2d 629 (7th Cir. 1990) (en banc), so the letter was properly
admitted. (For completeness we add that any error is harmless. The letter was just
one raindrop in a downpour.)
Feliciano contends that during closing argument the prosecutor indirectly com-
mented on his decision not to testify, thus impinging on the constitutional privilege
against compulsory self-incrimination. When discussing counsel’s cross-examination
of one witness, the prosecutor remarked: “It’s not the first time that a lawyer’s come
in with no defense and jumped up with no basis and called a witness a liar.” Feliciano
submits the reference to “no defense” could be understood to remark on the fact that
he did not testify. This is indeed a possible reading; the prosecutor should have omit-
ted the phrase “with no defense”. But the jury was unlikely to hear it as a request to
draw an adverse inference from Feliciano’s silence. No one proposed such an infer-
ence; the district judge sustained defense counsel’s objection, see Greer v. Miller, 483
U.S. 756 (1987); the subject was not followed up. Given its context, one phrase in a
single sentence was not likely to produce the forbidden inference, so there is no basis
for reversal. See United States v. Robinson, 485 U.S. 25 (1988); United States v.
Sblendorio, 830 F.2d 1382, 1390–94 (7th Cir. 1987). During a long trial slips of the
tongue and ambiguities are inevitable; this is why courts frequently remark that de-
fendants are entitled to fair trials but not perfect ones.
We have considered defendants’ other arguments. None is persuasive, and none
requires additional treatment in this order. All four convictions are affirmed, and we
also hold that the Sentencing Guidelines have been applied properly.
Nos. 02-3238 et al. Page 3
Because the sentences of Feliciano, Lis, and Miedzianowski exceed the statutory
minimum of 120 months, all three are entitled to limited remands under the approach
of United States v. Paladino, 401 F.3d 471, 481–85 (7th Cir. 2005). This court will re-
tain jurisdiction pending the district judge’s response.