United States v. Olson, Larry , 450 F.3d 655 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-1772, 01-1800, 01-1891, 01-1949 & 01-2065
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY OLSON, also known as OREO;
ANDREW ACOSTA, also known as BK;
ANTONIO MENDEZ, also known as SPA;
PEDRO MARTINEZ, also known as PISTOL PETE;
and WILFREDO VASQUEZ, also known as PITO,
also known as PETE,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CR 104—Lynn Adelman, Judge.
____________
ARGUED MAY 12, 2005—DECIDED MAY 12, 2006
____________
Before RIPPLE, ROVNER and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Five defendants appeal their
various convictions for racketeering, racketeering conspir-
acy, conspiracy to distribute controlled substances, murder
and drug trafficking. Four of the defendants were sentenced
to life imprisonment and one received a prison term of 262
months. All of the charged conduct arises out of the defen-
dants’ participation in the Milwaukee Chapter of the street
2 Nos. 01-1772, et al.
gang known as the Almighty Latin King Nation (“Latin
Kings”). All five defendants also appeal their sentences. We
affirm the convictions of all five defendants, and order a
limited remand of the sentences of four defendants. For the
fifth defendant, we vacate the sentence and remand for
resentencing.
I.
The Latin Kings are a national criminal organization
(often called the “Nation”) based in Chicago, with chapters
in many states. The chapters follow a written Constitution
and Manifesto (collectively, the “Manifesto”) that set forth
the rules for membership and a code of conduct to which
members must adhere. The Manifesto describes, among
other things, the hierarchy that rules the national and local
chapters of the organization, the colors and symbols that
are to be worn and displayed by members, and certain hand
gestures that indicate allegiance to the group. A five-
pointed crown is the national emblem of the Latin Kings;
black and gold are the official colors of the group. According
to the Manifesto, a fist on the heart is the national salute,
a gesture meaning, “I die for you.” Another Latin Kings
gesture known as “the crown” involves displaying the
fingers of one hand in a configuration that resembles a
crown. The Latin Kings have a national flag, several official
prayers, and a set of trial procedures to be used when a
member commits an offense. The Latin Kings code of honor
denies membership to anyone who has killed a member of
the group or killed a relative of a member. The Manifesto
also ostensibly excludes as members rapists and men who
are addicted to heroin.
On the national level, the Latin Kings are led by an
executive committee known as the Crown. The Crown is
headed by the Sun-King, a leader chosen by the Crown as
a whole. The Crown has the authority to make laws for the
Nos. 01-1772, et al. 3
entire Latin Kings organization, which is further subdi-
vided into chapters. Each chapter is led by an Inca who has
the authority to make rules for his own chapter but not for
the Nation. So long as he abides by the Nation’s laws, the
Inca has absolute authority over his chapter and also bears
responsibility for the actions of his chapter. Next in com-
mand at the chapter level is the Cacique (also called the
Casinca), whose duty is to make certain that the Inca’s
orders are carried out. The Cacique takes on the Inca’s role
if the Inca is imprisoned or dies, although the Inca retains
ultimate authority if his absence is due to imprisonment.
The Inca and Cacique are elected by the members of the
chapter. Each chapter also has an Enforcer, a Treasurer
and a Secretary, each appointed by the Inca and Cacique.
The Enforcer is in charge of “security” for every member of
the chapter and ensures that members obey the Nation
laws and the orders of the Inca and Cacique. Any member
who publicly discredits the Inca or Cacique may be charged
with conspiracy and treason. Latin Kings may not wear
anything that can be construed as being an emblem of
another organization. Members are admonished to protect
the lives and reputations of all other Nation members, not
to discuss Nation business with outsiders, and not to
submit to lie detector tests. The Nation is apparently wary
of the press but not entirely opposed to publicity; one rule
forbids giving press interviews on Nation business without
prior approval. According to the Manifesto, any member
who cooperates with the police will be expelled from the
group. In practice, that expulsion invariably is accompanied
by beatings (called “violations” in Latin Kings parlance) and
is sometimes accomplished by murder. The Manifesto also
mandates that “No King shall stand idle when another King
is in need of assistance.” There are other rules and other
positions in the hierarchy; we have described only those
parts of the Manifesto necessary to understand the issues
in this case. In addition to the rules recorded in the Mani-
festo, a number of unwritten rules also came into play in
4 Nos. 01-1772, et al.
this case. We will address these as they become relevant to
the issues.
The Milwaukee Chapter began operations in the mid-
1980s and eventually grew large enough to control a large
territory on Milwaukee’s south side. The Milwaukee
Chapter was, at times, divided into smaller geographically-
based territories known as the Kagel Kings, the 23rd Street
Kings, the Sawyer Kings and the 15th Street Kings. Within
the Kagel Kings was a younger group known as the Junior
Kings. The Milwaukee Chapter employed a city-wide Crown
Council, with the chain of command continuing above the
Inca. A regional Jefe and Corona reported directly to
national leaders in Chicago. All of the defendants in this
case were members of the Latin Kings in Milwaukee. Pedro
Martinez (“Martinez”) was the Inca of the Kagel Kings
beginning in 1991 or 1992. Andrew Acosta (“Acosta”) served
as Cacique and Enforcer under Martinez and as Enforcer
under a different Inca, Ray Rivera.1 Wilfredo Vasquez
(“Vasquez”) led the Junior Kings. Antonio Mendez
(“Mendez”) was a member of the Latin Kings as a result of
a merger between the Latin Kings and the Nasty Boys, the
gang that Mendez joined initially. After his incarceration in
1993, Mendez became the Acting Chief Enforcer of a prison
chapter of the Latin Kings. Olson was a member of the
Junior Kings and later the Kagel Kings. He did not hold a
particular rank.
The five defendants, together with twenty-six other Latin
Kings, were charged in a Second Superseding Indictment
with a variety of crimes. Count I alleged that Acosta,
Martinez, Mendez, Vasquez and others conducted and
participated in the conduct of the affairs of the Latin Kings
through a pattern of racketeering activity, in violation of 18
U.S.C. § 1962(c). The indictment alleged sixty-seven
1
Rivera pled guilty and testified against the defendants at trial.
Nos. 01-1772, et al. 5
underlying predicate offenses, including murders, robberies,
kidnappings, arson, intimidation, drug trafficking and
witness tampering. Many of the original thirty-one defen-
dants resolved their cases before trial, reducing the number
of predicate acts that remained in dispute at the time of
trial. Moreover, the issues raised by these remaining five
defendants implicate only a subset of the remaining acts
presented at trial; to keep the facts manageable, we will
detail only those predicate acts that play a part in the
defendants’ appeals. Acosta and Martinez were charged
with Racketeering Act 8 (“Act 8”), which was divided into
three subparts. Act 8(a) alleged conspiracy to murder
Angelique Morales; Act 8(b) alleged the murder of
Angelique Morales on January 23, 1994; and Act 8(c)
alleged the attempted murder of Jennifer Burzynski on
January 23, 1994. Racketeering Act 4 alleged that Mendez
murdered Jenna Gonzales in May 1993. Count II alleged
that all five defendants (and others) engaged in a racketeer-
ing conspiracy, in violation of 18 U.S.C. § 1962(d). Count III
alleged that Acosta, Martinez, Olson, Vasquez and others
conspired to distribute and possess with intent to distribute
controlled substances, including cocaine, cocaine base and
marijuana, in violation of 21 U.S.C.§§ 841 and 846. Count
IV charged Mendez with the murder of Jenna Gonzales for
the purpose of maintaining his position with the Latin
Kings, in violation of 18 U.S.C. § 1959. Count VIII charged
Acosta with possession with intent to distribute a large
quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1).
Count X charged Vasquez with marijuana distribution, in
violation of 21 U.S.C. § 841(a)(1). The jury returned a guilty
verdict on all counts. As for the racketeering acts alleged,
the jury found that the government had proved the acts we
have already listed (Acts 4 and 8) as well as a variety of
crimes involving arson, conspiracies to murder, attempts to
murder, drug possession and distribution, kidnappings,
witness tampering, and solicitation of murder. The dates of
these various criminal acts spanned approximately from
6 Nos. 01-1772, et al.
January 1987 through April 1999. The district court
sentenced Olson to 262 months’ imprisonment; Acosta,
Mendez, Martinez and Vasquez all received sentences of life
in prison.
II.
In their appeals, the defendants jointly raise two chal-
lenges to the sufficiency of the evidence and one challenge
to sentencing. First, for the racketeering counts, they
contend that the government failed to prove that the Latin
Kings were a single, ongoing enterprise during the time
period charged in the indictment. Second, they challenge
whether the evidence was sufficient to connect Racketeering
Act 8 with the enterprise. Finally, they maintain that their
sentences are unconstitutional under Blakely v. Washing-
ton, 542 U.S. 296, 124 S. Ct. 2531 (2004). Each defendant
claims additional error related to his individual case. Acosta
argues that his due process rights were violated when the
government mischaracterized the evidence relating to
racketeering Act 8 in closing arguments. Mendez contends
that the evidence was insufficient to connect the conduct
alleged in both Racketeering Act 4 and Count IV to the
enterprise. Vasquez asserts that the court erred when it
denied his motion to sever his trial from the others because
Thomas Overland, who pled guilty mid-trial, propounded a
defense that was antagonistic to Vasquez’s defense.
Vasquez also faults the court for allowing Overland to
testify against Vasquez after Overland changed his plea to
guilty. Martinez maintains that the court erred in failing to
suppress statements he made during what he believed were
plea negotiations. He also complains that the court should
have suppressed any statements he made during an
interview in which prosecutors violated their ethical
obligations. Olson objects to his sentence, maintaining that
the court held him liable for a greater quantity of drugs
than was supported by the evidence. He also asserts his
Nos. 01-1772, et al. 7
sentence was cruel, unusual, excessive and failed to serve
a valid purpose. We will begin with the issues that affect all
of the defendants and then turn to the defendants’ individ-
ual arguments.
A.
Count I of the Second Superseding Indictment (“Indict-
ment”) charged the defendants with racketeering, in
violation of 18 U.S.C. § 1962(c). The basic elements of a
section 1962(c) violation are (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity. United
States v. Cummings, 395 F.3d 392, 397 (7th Cir. 2005).
Count II charged a racketeering conspiracy, in violation of
18 U.S.C. § 1962(d). To prove a RICO conspiracy, the
government must show (1) an agreement to conduct or
participate in the affairs (2) of an enterprise (3) through a
pattern of racketeering activity. United States v. Neapoli-
tan, 791 F.2d 489, 498 (7th Cir.), cert. denied, 479 U.S. 940(1986). Thus, for each of these two counts, the government
was required to prove the existence of the enterprise. The
first joint argument for our review is the question of
whether the government provided sufficient evidence of the
enterprise alleged in the Indictment. According to the
defendants, the enterprise alleged in the Indictment ceased
to exist for a period of time in the mid-1990s and thus the
government failed to prove a single, ongoing enterprise for
RICO purposes.
When considering criminal defendants’ challenges to the
sufficiency of the evidence supporting their convictions, we
review the evidence in the light most favorable to the
government. United States v. Bernitt, 392 F.3d 873, 878 (7th
Cir. 2004), cert. denied, 125 S. Ct. 1882 (2005); United
States v. Stott, 245 F.3d 890, 904 (7th Cir.), cert. denied, 534
U.S. 1070 (2001). We will reverse a conviction only if no
rational trier of fact could have found the crime’s essential
8 Nos. 01-1772, et al.
elements beyond a reasonable doubt. Bernitt, 392 F.3d at
878; Stott, 245 F.3d at 904. See also Cummings, 395 F.3d at
397 (in reviewing a challenge to the sufficiency of the
evidence, we consider the evidence in the light most
favorable to the government, deferring to the jury’s credibil-
ity determinations, overturning a verdict only when the
record contains no evidence, however it is weighed, upon
which a rational trier of fact could find guilt beyond a
reasonable doubt). The statute defines an enterprise as “any
individual, partnership, corporation, association, or other
legal entity, and any union or group of individuals associ-
ated in fact although not a legal entity.” 18 U.S.C.
§ 1961(4). The existence of an enterprise “is proved by
evidence of an ongoing organization, formal or informal, and
by evidence that the various associates function as a
continuing unit.” United States v. Turkette, 452 U.S. 576,
583 (1981). The “central element of an enterprise is struc-
ture.” Neapolitan, 791 F.2d at 500. We have held that in
informal organizations such as criminal groups, there “must
be some structure, to distinguish an enterprise from a mere
conspiracy, but there need not be much.” United States v.
Rogers, 89 F.3d 1326, 1337 (7th Cir.), cert. denied, 519 U.S.
999 (1996) (quoting United States v. Korando, 29 F.3d 1114,
1117 (7th Cir.), cert. denied, 513 U.S. 993 (1994)). See also
United States v. Torres, 191 F.3d 799, 806 (7th Cir. 1999),
cert. denied, 528 U.S. 1180 (2000) (the continuity of an
informal enterprise and the differentiation among roles can
provide the requisite structure to prove the elements of
enterprise); Richmond v. Nationwide Cassel, L.P., 52 F.3d
640, 644 (7th Cir. 1995) (a RICO enterprise is an ongoing
structure of persons associated through time, joined in
purpose, and organized in a manner amenable to hierarchi-
cal or consensual decision-making); United States v. Tocco,
200 F.3d 401, 425 (6th Cir. 2000) (continuity of structure
exists where there is an organizational pattern or system of
authority that provides a mechanism for directing the
group’s affairs on a continuing, rather than ad hoc, basis).
Nos. 01-1772, et al. 9
The Indictment defined the relevant enterprise as “the
Almighty Latin Kings Nation, Milwaukee Chapter.” R.
1321, ¶ 1. The Indictment alleged that the Milwaukee
Chapter was established in the mid-1970s, that the enter-
prise had an organized structure set forth in the Manifesto,
and that the Milwaukee Chapter was subdivided into
geographical subchapters. According to the Indictment, the
object and purposes of the Latin Kings enterprise were
multi-faceted. Among other things, the Latin Kings sought
to protect and defend their territory from rival street gangs;
to enforce discipline among the group’s own members; to
traffic in controlled substances; to commit acts of robbery,
home invasion and theft for the benefit of the Latin Kings;
to obtain firearms for use in violent crimes and other Latin
Kings endeavors; to provide economic and social support to
the Nation; to preserve and protect the power of the
enterprise, its associates and members through intimida-
tion, threats of violence and acts of violence, including
murder; to increase the membership of the enterprise; and
to intimidate witnesses in an attempt to prevent them from
cooperating with law enforcement authorities. The Indict-
ment listed sixty-nine predicate acts that made up a pattern
of racketeering activity. The acts spanned in time from 1987
through 2000.
The defendants concede that many of the government
witnesses testified about the existence and structure of the
Latin Kings but contend that the government provided
insufficient evidence that the Latin Kings enterprise existed
unabated throughout the time period alleged in the indict-
ment. According to the defendants, some of the govern-
ment’s key witnesses testified that the Latin Kings ceased
to operate as an ongoing organization in the mid-1990s and
was revived some time later. In particular, Ray Rivera
testified that he was asked to become Inca at a time of great
disagreement and disorganization among the Latin Kings,
causing the organization to split into two groups. Rivera
opined that there was not “one overall organization” in late
10 Nos. 01-1772, et al.
1995 because of this in-fighting. David Keheres, a member
of the Latin Kings, described a period of time when the Inca
of the Kagel Kings, Herminio Vega, had been removed (or
“violated out” in the parlance of the Kings) and was not
replaced until Rivera came in a few months later to reorga-
nize the group. Mark Turner, a Latin Kings Enforcer,
testified that after Vega was expelled from the group, the
Casinca tried unsuccessfully to take over but that there was
“an empty void for a short period of time.” This “empty void”
was remedied when the members held a Nation meeting at
which Rivera was elected Inca, Acosta was elected Casinca,
and Turner was elected to be Enforcer. Turner testified to
another period of disorganization after Martinez was
ejected from the group. Benjamin Drews became a member
of the Latin Kings in November 1995. His first Nation
meeting was the one at which Rivera was elected Inca.
Drews recalled that a man named Moe spoke at the meeting
about the need for a new Inca in order to stop the “senseless
shootings” that were occurring and in order to make
everything run more smoothly. Miguel Romero, another
Latin King, also testified that before Rivera was elected
Inca, some Latin Kings were shooting at and fighting with
other gangs at will. Rivera tried to stop the members from
“running around wild, doing whatever they wanted to do.”
Thomas Overland testified that the Kings were in disorder
prior to Rivera’s election as Inca.
According to the defendants, other government witnesses
had no knowledge of the Latin Kings in the mid-1990s and
therefore could not support the government’s theory that
the Latin Kings were a continuous enterprise during the
relevant time period. The defendants concede that two
government witnesses, Alejandro Vallejo and Brian Turner,
lent some support to the government’s case. Vallejo testified
that there was an “acting Inca” after Vega was ejected from
the group and before Rivera was elected Inca. Brian Turner,
a member and brother of Mark Turner, testified that Vega
Nos. 01-1772, et al. 11
was forced out at the same meeting that Rivera was elected
to replace him. The defendants suggest that Vallejo was not
a credible witness because of his extensive criminal history
and that Brian Turner’s portrayal of events was unsup-
ported by any other witness to the Rivera election.
According to the defendants, this break in the leadership
and supposed temporary split of the Latin Kings into two
groups makes their case analogous to that of United States
v. Morales, 185 F.3d 74 (2d Cir. 1999), cert. denied, 529 U.S.
1010 (2000). In that case, the government charged both a
substantive RICO count as well as a RICO conspiracy count
against several members of a street gang known as the
“Park Avenue Boys.” The indictment alleged that the
enterprise existed from 1987 to 1996. At trial, the evidence
showed that all of the Park Avenue Boys were dead or in
prison by 1988. The group did not resume its operations
until some members were released from prison in 1995.
Thus there was a seven-year lull during which no crimes
were committed. The government presented no evidence
that the group continued to operate while its members were
in prison. The court reversed the RICO convictions because
the government failed to prove the existence of the single
nine-year enterprise alleged in the indictment. 185 F.3d at
81.
The facts of Morales are palpably different from the
situation of the Milwaukee Chapter of the Latin Kings in
the mid-1990s. The most obvious difference is that the
Latin Kings never faced a situation where the entirety of
their membership was incapacitated by death or imprison-
ment for a multi-year part of the charged time period. At
most, a certain subset of the Milwaukee Latin Kings lacked
formal leadership for a few months of the thirteen-year
period charged in the Indictment. Moreover, as the govern-
ment points out, the Latin Kings were part of a national
organization, with a structure set forth in the Manifesto.
Consistent with the Manifesto, the Latin Kings held
meetings, collected dues, elected officers, maintained a
12 Nos. 01-1772, et al.
treasury, studied the Manifesto, and enforced the code of
conduct. New members were subjected to a review process
and a probationary period before they were “violated into”
the group, a process which involved taking a severe beating
from current members. Members who failed to adhere to the
code of conduct also received “violations,” beatings that
could result in hospitalization or death. The Latin Kings
maintained guns and a pager that belonged to the group.
They regularly reviewed police presence in their territory
and took actions to keep rival gangs away from their turf.
In addition to that national structure, there was addi-
tional evidence from which the jury could infer that the
Latin Kings existed as a single continuous enterprise in the
Milwaukee area during the time period alleged in the
indictment. First, as the defendants concede, two witnesses,
Vallejo and Brian Turner, testified that there was no actual
break in Latin King leadership in the mid-1990s. Although
other witnesses testified to the contrary, the jury was free
to believe these two and reject the contrary testimony.
Indeed, the jury could have found that the break in leader-
ship, if there was one, was very brief. Several Latin Kings
testified that Vega was violated out of the group because he
had cooperated with the police. Although there was some
difference in testimony about the time frame for Vega’s
removal as Inca, at least one witness, Benjamin Drews,
testified that Vega was removed from his position in
December 1995. Drews also testified that Rivera was
elected to be the new Inca in late December 1995 or early
January 1996. Vallejo testified that Rivera was elected at
a January 6, 1996 meeting and the jury was free to credit
Vallejo’s testimony.2 In combination with Drews’ testimony
2
According to the Latin King Constitution, which was admitted
into evidence along with the Manifesto, January 6 is considered
a holiday in the organization. The Constitution states that in
(continued...)
Nos. 01-1772, et al. 13
that Vega was removed in December and replaced in late
December or early January, the jury could infer that the
group was without formal leadership for approximately one
month. A very brief break in leadership does not compel a
finding that the enterprise ceased to exist during that time.
The Manifesto anticipated gaps in leadership and pro-
vided that in the absence of the Inca, the Casinca or
Cacique was in charge of the group. There was evidence
that this plan was implemented after Vega’s ouster. Vallejo
testified that the Cacique was the “acting Inca” until a vote
was held to elect a new Inca. Tr. at 3515. Although there
was some testimony that the Cacique was unsuccessful in
his attempts to lead the group and that members were
engaging in independent criminal activity during this brief
time, there is no legal requirement that an enterprise run
like a well-oiled corporate machine. Some disorganization
does not, as a matter of law, negate the existence of the
enterprise. Indeed, the very witnesses on whom the defen-
dants rely each supported the jury’s determination that the
Milwaukee Chapter of the Latin Kings was an enterprise
for RICO purposes. For example, Rivera testified that the
Latin Kings continued to exist from 1993 when he left the
group through 1995 when he returned. Tr. at 562. Mark
Turner confirmed that the Latin Kings continued to have an
Inca from beginning to end, even during the period of
disorganization when there were leadership changes. Tr. at
2
(...continued)
recognition of Latino culture, January 6 will be known as “Holy
Kings Day,” a day of fasting and celebration. The Constitution
states, “For on this day all Latin America will celebrate with us.”
Presumably, this is a reference to the January 6 holiday recog-
nized in many Christian cultures as the Feast of the Epiphany or
the Feast of the Three Kings, celebrating the visit of the three
Magi who brought gifts to the infant Jesus twelve days after his
birth.
14 Nos. 01-1772, et al.
1945-46. Keheres verified that the group had structure and
organization even before Rivera took over. When asked if
the Latin Kings had a “gang mentality” during the period
of disorganization, Keheres replied, “No, not all of them.”
Tr. at 1311-18.
In addition to the alleged gap in leadership, of course,
there was some testimony that the Latin Kings splintered
into two groups, and again the defendants urge us to find
that this is proof that the single enterprise alleged in the
indictment did not exist continuously during the relevant
time period. The enterprise alleged in the Indictment was
the “Almighty Latin King Nation, Milwaukee Chapter.” As
we have discussed, the Milwaukee Chapter was broken
down into regional groups, each with its own Inca and
corresponding structure. Overseeing all of these groups or
sects was a regional Jefe or Corona, a person who had
authority over the Incas of the various Milwaukee sects and
who reported to the national organization in Chicago. There
was testimony, for example, that the Jefe was called in to
resolve a dispute that arose when the Inca of one Milwau-
kee sect ordered the kidnappings of a member of another
sect. There was also testimony that although there were a
number of different neighborhood-based sects, they all were
Latin Kings, representing the same crown and the same
colors. Thus, the fact that the Kagel Kings may have
splintered for a time was irrelevant to the continuing
overall structure of the Milwaukee Chapter. There was
abundant evidence from which the jury could infer that a
single enterprise existed throughout the time period alleged
in the indictment.
In Torres, we addressed a sufficiency of the evidence
challenge to the enterprise element of a RICO charge. 191
F.3d at 807. The government had established at trial that
the defendants functioned as an informal organizational
unit of a larger organization to enforce the collection of drug
Nos. 01-1772, et al. 15
debts upon orders given to them by others in the larger
organization. The informal group operated by kidnappings
debtors or members of the debtors’ families, and holding
them for ransom to satisfy the drug debt. In addition to the
testimony of some of the surviving kidnapping victims,
physical evidence introduced at trial included firearms, cell
phones, pagers, and ammunition found in a van used by the
group and at two hide-outs. We commented that this
physical evidence demonstrated that the defendants were
a well-equipped, sophisticated group engaged in criminal
activities and provided support for the jury’s finding of the
existence of an enterprise. Torres, 191 F.3d at 807. See also
Tocco, 200 F.3d at 425 (recognizing that the command
system and general structure of the organized crime group
La Casa Nostra is evidence of the existence of an enterprise
separate from the type of structure inherent in a pattern of
racketeering activity); United States v. Flynn, 852 F.2d
1045, 1052 (8th Cir.), cert. denied, 488 U.S. 974 (1988)
(finding that the command system of a Mafia family is an
example of the type of structure that is distinct from the
pattern of racketeering activity). The Latin Kings operated
in similar fashion, as a well-equipped organization with a
defined hierarchical command structure, a Manifesto and
Constitution that guided their behavior, and allegiance to
a national organization. The central element of an enter-
prise is structure and the Latin Kings maintained its
structure throughout the period described in the Indict-
ment. Neapolitan, 791 F.2d at 500. A rational trier of fact
easily could have found the existence of the defined enter-
prise beyond a reasonable doubt. Bernitt, 392 F.3d at 878.
The jury was well within its province to ignore any tempo-
rary gaps in leadership or splintering of subgroups in
finding that a single criminal enterprise existed during the
time period alleged in the Indictment. We therefore see no
reason to disturb the jury’s verdict on the RICO counts.
16 Nos. 01-1772, et al.
B.
The defendants’ second joint argument relates to the
three-part Racketeering Act 8. Act 8(a) alleged a conspiracy
to murder Angelique Morales; Act 8(b) charged the murder
of Angelique Morales on January 23, 1994; and Act 8(c)
alleged the attempted murder of Jennifer Burzynski on
January 23, 1994. According to the defendants, the govern-
ment provided insufficient evidence to connect Racketeering
Act 8 to the enterprise. As we noted earlier, in a challenge
to the sufficiency of the evidence, we review the evidence in
the light most favorable to the government, and we will
reverse a conviction only if no rational trier of fact could
have found the crime’s essential elements beyond a reason-
able doubt. Bernitt, 392 F.3d at 878; Stott, 245 F.3d at 904.
The defendants contend that the government did not prove
one of the elements of section 1962(c):
It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign com-
merce, 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.
18 U.S.C. § 1962(c). The Supreme Court held that “liability
depends on showing that the defendants conducted or
participated in the conduct of the ‘enterprise’s affairs,’ not
just their own affairs.” Reves v. Ernst & Young, 507 U.S.
170, 185 (1993) (emphasis in original). See also United
States v. Swan, 250 F.3d 495, 498 (7th Cir. 2001) (to be
liable under section 1962(c), an individual must have
participated in the operation or management of the enter-
prise itself). The defendants reason that if a charged
racketeering act was not committed in order to operate or
manage the enterprise, that act cannot support a RICO
charge. They posit that the murder of Morales and the
Nos. 01-1772, et al. 17
attempted murder of Burzynski were unrelated to the Latin
Kings enterprise. Rather, they contend, the evidence
demonstrated that Acosta was enraged with his girlfriend
on the night in question, that Martinez tried to calm him
down and talk him out of killing Morales, and that Marti-
nez, the Inca, did not order the murder. The defendants
concede that their convictions for racketeering will still
stand because the jury found that they committed other
predicate acts that they do not challenge here. The murder
of Morales and attempted murder of Burzynski, however,
dramatically lengthened their sentences and they therefore
challenge the jury’s finding on Racketeering Act 8 for that
reason. We turn to the facts surrounding Racketeering Act
8, reviewing them in a light most favorable to the govern-
ment.
In Milwaukee, gangs are generally separated into two
factions known as “People” and “Folks.” The Latin Kings
are allied with the People faction and consider themselves
to be at war with Folks-aligned gangs. Angelique Morales
was associated with the Maniac Latin Disciples (“MLD”), a
Folks-aligned gang. In 1993, she attended a Cypress Hill
concert with members of the MLDs.3 During the concert,
Morales, who had a backstage pass, went up on the stage
and “threw the crown down,” that is, she displayed the
Latin Kings’ crown hand gesture in an upside-down fashion.
She also convinced a member of the Hooligan band, another
group playing that night, to make the same gesture, telling
him it was the symbol for “I love you.” The Latin Kings
consider an upside-down display of the crown to be disre-
3
Cypress Hill is a Los Angeles-based rap group. Their website
describes their music as “Latino hip-hop/rock fusion.” Their skull-
covered album covers and song titles reveal a juvenile fascination
with death, violent street life and drug use, especially marijuana.
Many of their songs can be purchased in “clean” or “explicit”
forms. See www.sonymusic.com/artists/CypressHill.
18 Nos. 01-1772, et al.
spectful. Acosta was also at the concert and when he saw
Morales make this gesture, he “came up and got in her face
and started charging her up, started getting obnoxious to
her and started yelling at her.” Tr. at 2443. Acosta called
Morales a “Flake Bitch,” a derogatory term for a Folks-
aligned person. Tr. at 2444-45. Another person present at
the concert testified that Acosta screamed at Morales,
calling her a “Folk Bitch.” According to the witness, Acosta
said to Morales, “We’re going to kill you, we’re going to get
you, and you ain’t shit, bitch.” Tr. at 2471. The altercation
ended with Morales and her friends exiting the stage while
concert security personnel intervened with Acosta. Morales
was well known to the Latin Kings before this event. She
had previously been seen in Latin Kings neighborhoods,
throwing the crown down and pointing out the homes of
Latin Kings members to MLDs. The Latin Kings also
believed Morales had served as a driver when MLDs fired
shots at the homes of Latin Kings. Because of her reputa-
tion for disrespecting the Latin Kings, a “lot of dudes hated
her.” Tr. at 1682. Her disrespect for the Latin Kings was
discussed at meetings.
On January 23, 1994, Acosta and others attended a
birthday party for Martinez’s son. At the party, Acosta
argued with his girlfriend, creating a disturbance loud
enough to attract the attention of police officers. The
girlfriend left the party and later in the evening, Acosta left
the party with Martinez, Eric Estrada and Emiliano
Vargas, Martinez’s young cousin. At the time, Martinez was
the group’s Inca, Estrada was the Casinca, and Acosta was
the Enforcer. Martinez drove and Acosta rode in the front
passenger seat with the other two passengers in back. The
group passed a gas station and pulled over. Angelique
Morales and a friend, Jennifer Burzynski, had stopped at
that same gas station to use a pay phone. Acosta spotted
Morales and exited Martinez’s car. As Acosta left the car,
Martinez told him to “leave it alone.” Tr. at 2211. Acosta
Nos. 01-1772, et al. 19
approached the car where Morales and Burzynski were
sitting and waiting for a person they had paged. According
to Burzynski, when Morales saw Acosta, she became
terrified and exclaimed, “Oh shit, there’s the King that
charged me up at the Cypress Hill concert.” Tr. at 2109.
Morales, in a panic, turned the ignition of the car even
though it was already on. She tried to put the car in drive
but could not move the shifter because her foot was not on
the brake. As Burzynski tried to direct her to put the car in
gear by putting her foot on the brake, Acosta looked inside
the car, pulled a gun from his pants and pointed it at
Morales. After clearing a jam in the gun, Acosta fired six
shots into the car, hitting both Morales and Burzynski. At
the first shot, Burzynski opened her door, threw herself
from the car and played dead. After Acosta left, Burzynski
got up from the ground and saw that Morales was hunched
over the steering wheel, gasping for air. A moment later,
Morales stopped gasping. Terrified that Acosta would
return and see her still alive, Burzynski fled the scene and
called 911 from the home of her boyfriend’s cousin. She
survived her injuries and testified against Acosta in state
court (where he was acquitted) and later in the instant case.
Meanwhile, back in Martinez’s car, after Acosta exited the
car, Estrada asked Martinez to leave. Martinez refused,
saying he did not want to leave Acosta there alone. After a
few minutes, Estrada heard gunshots and a few moments
after that Acosta came running back to the car. He got in
and Martinez drove Estrada home. The next day, Estrada
read about the shooting in the newspaper and Acosta was
subsequently arrested for the crime. Martinez and Estrada
hired an attorney for Acosta. Martinez paid $20,000 for the
lawyer, using proceeds from drug sales. According to
Estrada, Martinez had reason to “look out” for Acosta
because Acosta handled all of Martinez’s “operations,” doing
all the “dirty work” for Martinez. Tr. at 2214. Martinez’s
“operations” involved drug sales, among other things.
20 Nos. 01-1772, et al.
Estrada did not approach the police with any of this
information because the Latin Kings code of conduct
prohibited members from cooperating with police officers or
any other law enforcement agency. Tr. at 2217. Martinez
ordered another Latin King to dispose of the gun, a nine
millimeter pistol that was a Nation gun. Acosta and
Martinez later bragged to their fellow Latin Kings that they
“smoked that bitch” and that Morales deserved what
happened to her. Martinez told David Lozano, a Latin King
and cooperating witness, that when they saw Angelique
Morales at a telephone booth, “[t]hey decided to take
advantage of the opportunity and get Angelique,” who had
previously disrespected the Latin Kings. Tr. at 6583.
An argument that this evidence was insufficient to tie
Racketeering Act 8 to the Latin Kings enterprise borders on
the frivolous. The jury heard testimony from numerous
cooperating Latin Kings members that when someone
“disrespected” the Latin Kings, members were obliged to
respond with violence ranging from beatings to shootings.
If they failed to respond to signs of disrespect with what-
ever violent means they had available at the time, they
faced punishment ranging from fines to beatings at the next
Latin Kings meeting. Morales disrespected the Latin Kings
in a very public way when she threw the crown down on
stage at a Cypress Hill concert and when she drove MLDs
into Latin Kings neighborhoods to point out and shoot at
houses. Indeed, Acosta told Morales at the concert that he
would kill her. The Latin Kings discussed their hatred of
Morales at a meeting. Indeed, Morales’ last words, in
dramatic fashion, tied what was about to happen to the
incident at the Cypress Hill concert. She knew this was the
Latin King who had “charged [her] up” at the concert after
her purportedly disrespectful hand gesture. That Martinez
may have told Acosta to “leave it alone,” is of little moment;
his actions in staying at the scene and providing Acosta
with transportation spoke louder than his words. The
Nos. 01-1772, et al. 21
Manifesto required that Martinez not “stand idle when
another King is in need of assistance,” and he did not stand
idle. He provided Acosta a means of escape from the scene
of the crime, disposal of the gun, and legal assistance. There
was some evidence presented that the gun used was a
Nation gun, which meant that only the Inca could authorize
its use. The jury was entitled to infer that Martinez, who
was then the Inca, authorized the shooting. The jury was
also free to infer that Acosta shot Burzynski in an attempt
to eliminate any witnesses to the murder of Angelique
Morales, thus tying her attempted murder to the conduct of
the enterprise. The defendants’ argument amounts to a
claim that Acosta was in a rage over the fight with his
girlfriend and that he was indulging his personal rage
rather than conducting Latin Kings business when he
murdered Morales. The jury rejected that theory and
instead concluded that the murder of Angelique Morales
was sufficiently connected to the affairs of the enterprise.
The use of Racketeering Act 8 at sentencing was thus
entirely appropriate. We will address the remaining
sentencing issues, including those raised jointly, after we
address the remaining challenges to the convictions.
C.
Antonio Mendez challenges his conviction for the murder
of Jenna Gonzales. Racketeering Act 4 charged Mendez
with the 1993 murder of Jenna Gonzales. The Indictment
also charged this murder as a substantive violation of 18
U.S.C. § 1959(a)(1), which prohibits a violent crime in aid
of racketeering activity. According to the Indictment,
Mendez committed this murder in order to gain entrance to,
maintain and increase his position in the Latin Kings
enterprise. Section 1959 provides, in relevant part:
Whoever, . . . for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise
22 Nos. 01-1772, et al.
engaged in racketeering activity, murders . . . any
individual in violation of the laws of any State or the
United States, or attempts or conspires to do so, shall
be punished—
(1) for murder, by death or life imprisonment, or a fine
under this title, or both[.]
18 U.S.C. § 1959(a). According to Mendez, the government
provided insufficient evidence that the murder of Jenna
Gonzales was ordered by the Latin Kings or was related to
Latin Kings business, or that Mendez committed the
murder for the purpose of gaining entrance into or main-
taining or increasing his position in the Latin Kings.
As was the case for most of the trial, there was conflicting
evidence on the murder of Jenna Gonzales. Mendez took the
stand to admit that he was present when Gonzales was
murdered but to deny that he took part in the killing and to
deny that it was related to the Latin Kings. But as with any
sufficiency challenge where the jury has rendered a guilty
verdict, we construe the facts in the light most favorable to
the government. The government’s evidence was more than
sufficiently damning. The story began with the murder of
Craig Abendroth, described alternately as a Latin King
“wannabe” or a Latin King recruit. The government pro-
vided evidence that Abendroth, a friend of Mendez, was
murdered by the Spanish Cobras, a rival gang. Mendez
believed that Jenna Gonzales had set up Abendroth to be
killed by the Cobras and Mendez wanted revenge. After the
murder, Mendez described the killing to his girlfriend, Koni
Watson, and Watson testified to that admission at trial.
According to Watson, Mendez had been driving around with
other Latin Kings when they came across Gonzales, the
woman Mendez believed had set up Abendroth. They picked
her up and drove her out to the Root River Parkway where
they choked her and beat her with sticks. They then kicked
her down into the river and waited for her to die in the
water. Their car was stuck in the mud near the river so
they abandoned the car and walked to a pay phone where
Nos. 01-1772, et al. 23
they called cabs. When Mendez got home, he took a shower
and washed his body down with peroxide to remove any
hair or lint. He also washed his clothing, including his
tennis shoes. The police found the car, which belonged to
Mendez’s mother, the next day. They contacted Mendez’s
mother using information found in the glove compartment.
Mendez returned to the scene with his mother to retrieve
the car with the help of a police tow. More than a week
later, a man walking in the park with his children found
Gonzales’s body floating in the river less than a quarter of
a mile from where Mendez’s car had been found. An autopsy
revealed lacerations to her head, a broken nose, a fractured
jaw, cracked skull and other signs of blunt force trauma.
Before the body was found, Mendez and Watson, who had
a stormy relationship, had an argument. According to
Watson, the argument related to Mendez’s fear that Watson
was going to snitch on him. Mendez briefly choked Watson
and said, “Do I have to kill you too?” Tr. at 735. Mendez
later told Watson which Latin Kings participated in the
murder with him, identifying Anthony Davis, Pedro Marti-
nez and Joel Castillo. When Watson expressed disbelief at
this story, Mendez told her to watch the news; Watson
eventually saw the murder reported on the news.
Other witnesses confirmed Watson’s story. While in
prison for an unrelated rape, Mendez shared a cell with
David Lozano, the Inca of that prison’s chapter of the Latin
Kings. Mendez bragged to Lozano that he killed Gonzales
because she had set up Abendroth to be killed by the
Spanish Cobras. Mendez told Lozano that Abendroth was
his friend and a Latin King recruit. When he learned that
Gonzales was involved in Abendroth’s murder, he decided
to take revenge on her. Mendez told Lozano that he and
other Latin Kings beat Gonzales to death and threw her in
the Root River. Two other witnesses, Robin Betz and Joel
Castillo, also testified that Mendez admitted his involve-
ment in Gonzales’s murder. Mendez stipulated at trial that
he has a “Kingmaster” tattoo on his back, a bearded king
24 Nos. 01-1772, et al.
wearing a five-point crown. Mendez’s Kingmaster tattoo
included a teardrop under the left eye. Other witnesses
testified that a teardrop tattoo in this location would
indicate that a person has murdered someone for the Latin
Kings.
There was additional evidence but this is enough. Mendez
admitted to at least two people that he killed Gonzales and
that the murder was revenge for her involvement in the
death of a Latin King recruit. As we discussed with the
murder of Angelique Morales, Latin Kings were obliged by
their code of conduct to take violent action whenever
someone disrespected the Latin Kings. A reasonable jury
could find that this is exactly what Mendez did. The
evidence is thus sufficient to prove that the murder was
related to the conduct of the Latin Kings enterprise, and
that Mendez committed the murder in order to maintain his
position in the Latin Kings.
D.
Acosta raises an individual challenge to his RICO convic-
tions, arguing that the government violated his due process
right to a fair trial during closing arguments. According to
Acosta, the government mischaracterized the testimony
related to Racketeering Act 8, the murder of Angelique
Morales, the attempted murder of Jennifer Burzynski and
the conspiracy to commit those acts. Acosta characterizes
the government’s case on Act 8 as weak, noting that there
was no evidence of a directive given to Latin Kings to harm
Morales. Instead, Acosta argues, the evidence showed that
Pedro Martinez, the Inca, tried to dissuade Acosta from
committing the murder, and that Acosta had a domestic
dispute earlier that evening with his girlfriend, who was at
the gas station just prior to the murder. He also claims the
evidence showed that, although Morales was associated
with a rival gang, she also had friends among the Latin
Kings. All of this, Acosta reasons, demonstrates that the
Nos. 01-1772, et al. 25
murder was unrelated to the Latin Kings enterprise. Acosta
posits that because of these purported weak spots in the
government’s case, the prosecutor, in closing arguments,
mischaracterized the evidence in a number of instances: (1)
the government told the jury that Vargas and Estrada, who
were in the car at the time of the murder, testified that
Martinez planned the murder and worked together “hand
in glove” to see it through; (2) the government misstated
Estrada’s testimony by saying that even though he heard
Martinez tell Acosta to “leave it alone” on the night of
Morales’ murder, Martinez did not really mean it; (3) the
prosecutor implied that Acosta murdered Morales as part of
the “dirty work” he performed for Martinez; and (4) the
prosecutor suggested that the murder was related to the
Latin Kings enterprise because the Kings told Andrea
Martinez to lie for Acosta at his state trial for the Morales
murder. Acosta maintains that each of these statements
individually and in the aggregate grossly mischaracterized
the evidence and deprived him of his due process right to a
fair trial.
In reviewing a due process challenge to a prosecutor’s
statements during closing argument, we first determine if
the comments were, when viewed in isolation, improper.
United States v. Anderson, 303 F.3d 847, 854 (7th Cir.
2002), cert. denied, 538 U.S. 938 (2003); United States v.
Scott, 267 F.3d 729, 740 (7th Cir. 2001), cert. denied, 535
U.S. 1099 (2002). If they were improper, we consider the
record as a whole to determine whether the comments
deprived the defendant of a fair trial. Anderson, 303 F.3d at
854; Scott, 267 F.3d at 740. “The relevant question is
whether the prosecutors’ comments so infected the trial
with unfairness as to make the resulting conviction a denial
of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986). See also United States v. Morgan, 113 F.3d 85, 89
(7th Cir. 1997). When we review the record as a whole, we
consider (1) the nature and seriousness of the misconduct;
26 Nos. 01-1772, et al.
(2) the extent to which the comments were invited by the
defense; (3) the extent to which any prejudice was amelio-
rated by the court’s instructions to the jury; (4) the de-
fense’s opportunity to counter any prejudice; and (5) the
weight of the evidence supporting the conviction. Scott, 267
F.3d at 740; Morgan, 113 F.3d at 90. Acosta failed to object
to at least two of the statements to which he now objects,
and our review of those statements is limited to plain error.
Scott, 267 F.3d at 740. Under the plain error standard,
Acosta must establish not only that the remark denied him
a fair trial but also that the outcome of the proceedings
would have been different absent the remark. Scott, 267
F.3d at 740.
The first comment to which Acosta objects relates to the
testimony of Vargas and Estrada, two of the people in the
car with Acosta on the night of the Morales murder. The
prosecutor argued:
They [Vargas and Estrada] came in here and told you
that they were the two other people in the car. Emiliano
Varga [sic], a young cousin of Pedro Martinez. So happy
to be in the car with a bunch of Kings. How exciting.
Pulled up to 16th and Forest Home. Andrew Acosta
knew exactly what to do. He jumps out of the car, goes
between some houses. Hears gunshots. Comes back,
Angelique Morales is dead. They worked together like
a hand in glove.
Tr. at 7531. Acosta maintains that neither witness testified
that Martinez and Acosta worked together to have Morales
killed. He also contends that Vargas testified he did not
hear gunshots and knew nothing about the shooting. As for
Estrada, Acosta emphasizes that Estrada heard Martinez
tell Acosta to “Leave it alone,” indicating they did not work
together to kill Morales.
Although neither witness testified directly that Martinez
and Acosta worked together to murder Morales, that was a
Nos. 01-1772, et al. 27
fair inference to argue from the evidence as a whole. As we
discussed above, Martinez had authority as Inca to direct
the actions of Acosta, his Enforcer. Martinez aided Acosta
by providing transportation to and from the scene of the
crime, and by helping Acosta dispose of the murder weapon.
Martinez also paid for Acosta’s lawyer after he was arrested
and charged with the murder. All of these actions were
consistent with the Latin Kings Manifesto and were
consistent with the prosecutor’s argument that the two
worked together “hand in glove.” Although Vargas testified
that he did not hear gunshots over the sound of the radio
that was blaring in the car, Estrada did testify to hearing
gunshots after Acosta exited the vehicle. Because the
remarks were not improper when viewed in isolation, there
is no need to analyze them further.
We turn to the next purportedly objectionable comment:
Eric Estrada told us that although he heard Pedro
Martinez say “Leave it alone,” he didn’t mean it.
Because he stayed. Eric Estrada told us that if he was
driving, he would have left.
Tr. at 7533. Acosta is correct that Estrada did not directly
state that Martinez did not mean it when he told Acosta to
“leave it alone.” Viewing this statement in isolation, it was
not a correct characterization of Estrada’s testimony. Acosta
did not object to this statement at trial and we thus review
it for plain error. In the context of the paragraphs preceding
and following this remark, it is clear that the prosecutor did
not mean to quote Estrada but was asking the jury to infer
from his testimony that Martinez said one thing but meant
another in light of his actions. That was a fair inference to
draw from the evidence and we cannot see how the outcome
of the trial would have changed if the prosecutor had made
clear that he was not quoting Estrada but interpreting him.
We find no error here.
28 Nos. 01-1772, et al.
Acosta next complains that the prosecutor improperly
argued that murder was part of the “dirty work” that Acosta
performed for Martinez. According to Acosta, when Estrada
testified that Acosta performed Martinez’s “dirty work,”
Estrada meant receiving drug shipments, distributing them
and collecting drug debts. Because Estrada did not mention
murder when asked what he meant by “dirty work,” Acosta
argues that this was an improper argument. Here is what
the prosecutor said:
Eric Estrada told us that he had seen a nine millimeter
Beretta at Pedro Martinez’s house before the shooting,
and he also told us that Pedro Martinez never went
anywhere without a gun. He also told us that Andrew
Acosta was the person who did his dirty work. Damn
right.
Tr. at 7530. Acosta’s attorney objected “to that last com-
ment and move[d] that it be stricken.” Tr. at 7530. It is
unclear from the record whether he objected to the phrase
“dirty work” or to the exclamation “Damn right.” He
certainly did not explain that he objected because the
statement mischaracterized the testimony. Whether we
review the statement for plain error or under the less
stringent standard, we cannot find that it was an improper
statement. Estrada in fact testified that Acosta “handled all
of the operation for Pistol,” and that he “did all the dirty
work mainly.” Tr. at 2215.4 Although Estrada used drug
distribution and debt collection as examples of dirty work,
he did not confine the term to those activities. Other
evidence demonstrated that it was a common Latin Kings
practice for an Inca to distance himself from criminal
activity, letting others with lesser stature in the organiza-
tion take the risks associated with criminal acts. Because
4
“Pistol” or “Pistol Pete” were both known nicknames for Pedro
Martinez.
Nos. 01-1772, et al. 29
the comment was not improper, we need not consider it
further.
That brings us to the final statements to which Acosta
objects. According to Acosta, the government suggested in
its closing argument that the Morales murder was con-
nected to the Latin Kings because Acosta required wit-
nesses lie for him in his state court trial for the murder.
The specific remarks to which Acosta objects follow:
The Latin Kings tried to make people lie in court. Tried
to have people come in and make sure justice isn’t done.
Andrea Martinez lied to that jury in order to protect the
Kings.
Tr. at 7536.
Hide the truth, have witnesses lie, do what is necessary
to have done. Much like Mr. Acosta when he had
Andrea Martinez, who got up here and told you lied
[sic] about what she had done.
Tr. at 8025. Acosta did not object to the first statement at
trial, and it is literally true. Andrea Martinez did admit in
her testimony in the instant case that she lied at Acosta’s
state court trial to protect Acosta and her brother, Pedro
Martinez. Acosta objected to the second statement, arguing
that there was “no testimony from Andrea Martinez that
Mr. Acosta told her to lie. For Mr. Robles to state that is a
gross distortion of the record.” Tr. at 8025. The court noted
the objection and instructed the jury that “the question of
what the evidence was is a matter for the jury’s recollec-
tion.” Tr. at 8025-26. To the extent that the prosecutor
suggested that Andrea Martinez testified that Acosta asked
her to lie at the state court trial, Acosta is correct that she
made no such admission. She testified instead that she lied
in the state court trial because she loved her brother, Pedro
Martinez and she liked Acosta, and the Latin Kings did not
ask her to do anything. Tr. at 2319-20.
30 Nos. 01-1772, et al.
This was, at worst, a small distortion of the record that
was remedied by the court’s immediate instruction to the
jury that their own recollection of the testimony should
prevail over the attorneys’ characterizations. There was
plenty of testimony that the Latin Kings had a policy of not
cooperating with law enforcement and that they dealt
harshly with anyone who did cooperate. More than one
member was “violated out” of the group for suspicion of
cooperation with law enforcement, and it is a fair inference
that testimony at trial that implicated the Latin Kings in a
murder would be considered cooperation with law enforce-
ment. Andrea Martinez was subpoenaed by Acosta to testify
at his state court trial. Andrea’s truthful testimony would
not have helped Acosta, a fact that she acknowledged and
that he surely knew as well. As the sister of the Inca, the
jury could infer she knew the consequences of testifying at
trial in a manner that implicated Acosta in the murder. The
jury could conclude that, although Acosta did not ask her
directly to lie for him, Andrea interpreted that subpoena as
a request for untruthful testimony. In considering the five
factors we outlined above, we conclude that this slight mis-
characterization of Andrea Martinez’s testimony did not
so infect the trial with unfairness as to make the resulting
conviction a denial of due process. Nor did any combination
of these supposed misstatements deprive Acosta of a fair
trial.
E.
Wilfredo Vasquez objects to the district court’s refusal to
sever his trial from that of Thomas Overland because
Overland’s defense was antagonistic to his defense. He also
contends that the court erred in allowing Overland to testify
against him after Overland changed his plea to guilty in the
middle of the trial. Vasquez’s defense centered on whether
the government could prove that any of the alleged predi-
Nos. 01-1772, et al. 31
cate acts were committed by an enterprise as that term is
defined by the RICO statute. The crux of this defense,
explains Vasquez, was to demonstrate that the Latin Kings
were not sufficiently organized to sustain the RICO charges.
Instead, he claimed that they were a loose collection of
rogues who largely did what they wanted to do when they
wanted to do it. Overland, on the other hand, claimed a
defense of coercion by the Latin Kings organization. In
support of this defense, Overland essentially conceded that
the Latin Kings were an enterprise and argued that he was
coerced into committing illegal acts by that enterprise. Key
to Overland’s defense, according to Vasquez, was that
Overland could not escape the coercion of the Latin Kings
because of the group’s chain of command, its laws, and its
system of retribution. Vasquez contends that Overland
needed to show the existence of the Latin Kings enterprise
in order to prove his defense. Vasquez thus argues that the
district court abused its discretion when it refused to sever
his trial from Overland’s trial. Vasquez also claims an
abuse of discretion in the district court’s decision to allow
Overland to testify for the prosecution after he reached a
plea agreement mid-way through the trial. According to
Vasquez, Overland was present at the trial for weeks before
pleading guilty, allowing him to tailor his testimony to
conform to the government’s theory of the case.
We review the denial of a motion to sever for abuse of
discretion. United States v. Souffront, 338 F.3d 809, 828
(7th Cir. 2003), cert. denied, 540 U.S. 1201 (2004); United
States v. Rollins, 301 F.3d 511, 517-18 (7th Cir. 2002);
United States v. Ramirez, 45 F.3d 1096, 1100 (7th Cir.
1995). In order to prevail in this appeal, Vasquez must
demonstrate that the denial of severance caused him actual
prejudice that deprived him of his right to a fair trial.
Souffront, 338 F.3d at 831; Rollins, 301 F.3d at 518. We
have held that it is insufficient that separate trials would
have given the defendant a better opportunity for an
acquittal. Souffront, 338 F.3d at 831; Rollins, 301 F.3d at32 Nos. 01-1772, et al.
518. In this case, Vasquez bases his claim on what he
characterizes as the antagonistic defense of Thomas
Overland. The district court declined to sever Vasquez’s
trial on this basis because whether or not there was an
enterprise was not dispositive of Overland’s defense.
Overland claimed he was coerced by Mark Turner, by other
Latin Kings and by his fear of the Latin Kings generally.
The court reasoned that such a defense was not inconsistent
with Vasquez’s theory that there was no RICO enterprise
because Overland could be coerced even if the Latin Kings
did not meet the legal standard for a RICO enterprise.
Although there was some tension between Vasquez’s
defense and Overland’s theory of the case, the district court
did not abuse its discretion in denying the severance. When
defendants are properly joined under Federal Rule of
Criminal Procedure 8(b), a district court should grant a
severance only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defen-
dants, or prevent the jury from making a reliable judgment
about guilt or innocence. Ramirez, 45 F.3d at 1100. The
occurrence of mutually antagonistic defenses is generally
not sufficient grounds to require severance. Souffront, 338
F.3d at 831. Mutually antagonistic defenses are not prejudi-
cial per se. Souffront, 338 F.3d at 831. Vasquez has failed to
show that he suffered actual prejudice because of Over-
land’s defense. Vasquez has not shown that any of the
harmful evidence that came in through the efforts of
Overland’s counsel would have been inadmissible if
Vasquez had been tried separately, for example. The
evidence against Vasquez was rather extensive and would
have been overwhelming even if he had been tried sepa-
rately. Evidence about the Latin Kings organization and
structure was also very strong as we discussed above.
Severance was not required to protect any specific trial
right in this instance; nor did a joint trial of Vasquez and
Overland prevent the jury from making a reliable judgment
Nos. 01-1772, et al. 33
about Vasquez’s guilt or innocence. The district court did
not abuse its discretion in denying the severance.
Nor did the court abuse its discretion in allowing Over-
land to testify against Vasquez after Overland pled guilty
mid-trial. Before Overland testified, the court carefully
instructed the jury on the limited use of Overland’s testi-
mony:
The next witness is Thomas Overland, who you will
recall was a former defendant in this case. Mr. Over-
land pleaded guilty to Count I of the indictment, and is
now going to be testifying on behalf of the United
States.
I want to instruct you that you are not to draw any
negative inference against the remaining defendants
whatsoever based upon Mr. Overland’s decision to enter
a guilty plea and to testify during the trial. I want to
further instruct you that the guilt of any person,
including Mr. Overland, is not evidence of the guilt of
any other person, specifically the remaining defendants.
And finally, I want to instruct you that you can give
Mr. Overland’s testimony such weight you feel it
deserves, keeping in mind that it must be considered
with caution and great care. And I will have much more
instructions about the whole case later on, but I wanted
to instruct you of that point right now before Mr.
Overland testifies.
Tr. at 6098-99. At the end of the trial, the court instructed
the jury again on the special caution they must use in
assessing testimony from witnesses who stated they were
involved in the commission of offenses or acts charged
against the defendants and from witnesses who had pleaded
guilty to offenses arising out of the same occurrences for
which the defendants were on trial. R. 1889, at 9-10. The
court admonished the jury not to use those witnesses’ guilty
pleas as evidence against the defendants. R. 1889, at 10.
34 Nos. 01-1772, et al.
The testimony of a co-defendant who negotiates a mid-
trial plea bargain is admissible in certain circumstances for
limited purposes. United States v. Thomas, 774 F.2d 807,
809 (7th Cir. 1985), cert. denied, 475 U.S. 1024 (1986). In
Thomas, a co-defendant pleaded guilty nine days into a
sixteen-day trial and then testified against the remaining
defendants. On appeal, those remaining defendants com-
plained that the testimony of their former co-defendant (1)
was improper because he had participated in pre-trial
defense planning and thus was aware of privileged conver-
sations and strategies; (2) violated Federal Rule of Evidence
615, the witness exclusion rule, because he had been
present for the entire trial and could mold his testimony to
fit the government’s case; and (3) required reversal because
the prejudicial impact upon the jury of a defendant-turned-
government-witness could not be overstated. We held that,
because such testimony was admissible for limited pur-
poses, the lower court’s cautionary instructions were key to
determining whether reversible error occurred. Because the
court in that case gave appropriate cautionary instructions
and the defendants raised no objections to those instruc-
tions, we found there was no reason for reversal. Thomas,
774 F.2d at 809-10. The same analysis applies here. The
court gave appropriate cautionary instructions and Vasquez
has not objected to those instructions. We find no abuse of
discretion.
F.
Pedro Martinez complains that the district court erred
when it failed to suppress a statement he made during a
meeting which he reasonably believed was a plea negotia-
tion. He also contends that the court should have sup-
pressed his statements because they were obtained in
violation of the prosecutor’s ethical obligations. A magis-
trate judge conducted evidentiary hearings on Martinez’s
Nos. 01-1772, et al. 35
motion to suppress and issued a report and recommenda-
tion. The district court then reviewed those parts of the
report and recommendation to which objections were filed.
We recount the facts as the district court found them.
In April 1998, Martinez was serving a 157-month sen-
tence in federal prison in Indiana for a conviction on an
unrelated offense. On April 27, 1998, he was brought to the
Eastern District of Wisconsin to appear in a line-up. FBI
Special Agent Daniel Craft decided to interview Martinez
on matters related to the instant case, and brought him to
the U.S. Attorney’s office in Wisconsin on April 28, 1998.
However, Assistant U.S. Attorney Chris Larsen determined
that Martinez could not be interviewed until Larsen
determined whether Martinez was represented by a lawyer.
For a one-hour period that day, Agent Craft stayed in a
conference room with Martinez, and Larsen went into the
room two or three times during that period. According to
Martinez, Agent Craft used this opportunity to tell Marti-
nez about Sammy “The Bull” Gravano, a well-known
underboss of the Gambino crime family. Agent Craft
described Gravano to Martinez as a mobster who confessed
to nineteen homicides but served only five years in prison
because he cooperated with the government in its case
against John Gotti. Martinez believed that Agent Craft
raised the Gravano case in order to obtain Martinez’s
cooperation. Agent Craft denied talking to Martinez about
Gravano on April 28 but acknowledged that he discussed
Gravano with other Latin Kings, telling them that Gravano
cooperated and then received leniency. According to Marti-
nez, Agent Craft also told him that Agent Craft might be
able to get him a ten- year deal, and that Assistant U.S.
Attorney Karine Moreno-Taxman trusted Agent Craft and
would likely listen to any recommendation he made.
Between April 28 and April 30, Larsen determined that
Martinez’s lawyers represented him only in the appeal of
his conviction in the Northern District of Indiana and not
36 Nos. 01-1772, et al.
on potential charges in the Eastern District of Wisconsin.
Prosecutors then called for an April 30 meeting with
Martinez at the U.S. Attorney’s office. According to Larsen,
the purpose of the meeting was to explore Martinez’s
potential cooperation. Agent Craft testified that prosecutors
were present in the hope that Martinez might offer to
confess and incriminate others in exchange for a deal that
only prosecutors could offer.
The April 30 meeting lasted only ten or fifteen minutes.
Agent Craft brought Martinez to the U.S. Attorney’s office
where they were joined by Larsen and Moreno-Taxman.
Martinez testified that on the drive over from the jail,
Agent Craft told him several times, “Don’t worry about the
numbers, you’ll be satisfied with the outcome.” When
Martinez stated he would not cooperate if it meant a
double-digit sentence, Agent Craft replied that they might
be able to have his sentence run concurrently with the
sentence he was then serving. Once at the meeting, accord-
ing to Martinez, when he asked Agent Craft why they were
meeting, Agent Craft replied, “if you cooperate, we can
make this disappear.” Because Larsen corroborated Agent
Craft’s denial regarding this statement, the court found
that Agent Craft made no such statement. Instead, the
court found that Moreno-Taxman asked Agent Craft to read
Martinez his Miranda rights. When Agent Craft began to
inform Martinez about his rights, Martinez interrupted
him, saying that he knew his rights better than Agent
Craft. Martinez then recited several of his Miranda rights
from memory. Agent Craft then read Martinez his Miranda
rights in full and asked him if he wanted to speak without
an attorney present. Martinez agreed to do so. Moreno-
Taxman then told Martinez that she had evidence linking
him to at least three homicides and gave Martinez an
account of the murder of Angelique Morales. This prompted
Martinez to correct parts of her account that he believed
were mistaken, thereby implicating himself in the murder.
Nos. 01-1772, et al. 37
At some point in the discussion, Martinez asked if he could
speak off the record and Moreno-Taxman told him emphati-
cally that everything was on the record. Martinez then
asked for some time to think about it, and the meeting
ended. Larsen testified that no promises or threats were
made during the meeting, nor was there any plea bargain-
ing or discussion of plea bargaining. In fact, Larsen at-
tested, prosecutors had not even discussed the possibility of
a plea bargain among themselves before the meeting.
The district court noted that Agent Craft’s credibility had
been seriously undermined by his conduct in an unrelated
case in another state. The court therefore chose not to credit
Agent Craft’s testimony except where it was consistent with
the testimony of a credible witness such as Larsen. The
court found that, even assuming that Agent Craft discussed
the Gravano case with Martinez on April 28, Martinez did
not have an objective reason to believe he was participating
in plea negotiations on April 30. The court remarked that
“[c]omments that things might go better for a suspect if he
or she cooperates do not convert a suspect’s subsequent
efforts to cooperate, even if in hope of gaining leniency by a
plea, into plea bargaining discussions.” United States v.
Acosta, 111 F.Supp.2d 1082, 1091 (N.D. Ill. 2000). The court
noted that Agent Craft’s statement about getting Martinez
a ten-year deal demonstrated to Martinez that Agent Craft
did not himself have the authority to engage in plea
bargaining because he indicated he would simply make a
recommendation to Moreno-Taxman. The court found that
nothing else occurred at the meeting that would give rise to
a reasonable belief that the meeting was a plea bargain
discussion. The court discounted the statements that Agent
Craft allegedly made to Martinez because he was not a
government attorney and it was clear to Martinez that, at
most, Agent Craft could make a recommendation to
Moreno-Taxman.
38 Nos. 01-1772, et al.
On appeal, Martinez argues that he exhibited a subjective
belief that he was engaging in plea discussions at the April
30 meeting and that this belief was reasonable. Statements
made in the course of plea discussions with a prosecutor
generally are inadmissible under Federal Rule of Criminal
Procedure 11(f) and Federal Rule of Evidence 410. When
reviewing a district court’s decision on a motion to suppress,
we review questions of law de novo and questions of fact for
clear error. United States v. Brown, 232 F.3d 589, 591 (7th
Cir. 2000). We review de novo the district court’s ultimate
conclusion of whether the statements were made in the
course of plea negotiations because the determination is a
mixed question of law and fact. Brown, 232 F.3d at 591-92.
See also United States v. Morgan, 91 F.3d 1193, 1195 (8th
Cir. 1996), cert. denied, 519 U.S. 1118 (1997) (district
court’s ultimate determination that a statement was given
in the course of plea negotiations is a mixed question of law
and fact reviewed de novo). Martinez argues that he spoke
at the meeting only because Moreno-Taxman assured him
everything was off the record, because Agent Craft told him
on April 28 that he could get him a ten-year deal, and
because Moreno-Taxman discussed his connection to several
homicides. Once Moreno-Taxman told him everything was
on the record, he asked for time to think it over and the
meeting ended. Finally, Agent Craft’s remarks to him on
April 28 and in the car on April 30 led him to believe that
a plea bargain might be discussed at the meeting. All of
this, he claims, demonstrated a subjective belief that he was
engaged in a plea discussion.
The district court found that Moreno-Taxman never told
Martinez that his remarks would be off the record. Marti-
nez offers no reason to disturb this finding of fact and we
see no reason to do so. There is nothing about Moreno-
Taxman’s statements connecting Martinez to several
homicides that would lead him to believe he was engaged in
a plea discussion rather than an interrogation. The fact
Nos. 01-1772, et al. 39
that Martinez asked for time to think things over after
Moreno-Taxman emphatically told him everything was on
the record tells us nothing about whether he thought he
was engaged in plea negotiations. That leaves Agent Craft’s
statements. Because the district court found Agent Craft
was generally not a credible witness, we too will assume
that Agent Craft made the statements that Martinez claims
he made. Federal Rule of Evidence 410 specifies that “any
statement made in the course of plea discussions with an
attorney for the prosecuting authority which do not result in
a plea of guilty or which result in a plea of guilty later
withdrawn” is generally not admissible against the defen-
dant who was a participant in the plea discussions. Fed. R.
Evid. 410 (emphasis added). See also United States v.
Brumley, 217 F.3d 905, 910 (7th Cir. 2000) (finding that the
exclusion of statements made during plea discussions
applies only to statements made to government attorneys
and not to statements made to law enforcement agents);
United States v. Lewis, 117 F.3d 980, 984 (7th Cir.), cert.
denied, 522 U.S. 1035 (1997) (same). Agent Craft was not
an attorney for a prosecuting authority and did not purport
to be speaking on behalf of the United States Attorney. To
the contrary, Agent Craft made clear that he could, at most,
recommend a plea agreement to Moreno-Taxman and that
she trusted him. He made the general kinds of statements
that law enforcement agents commonly make, that coopera-
tion will likely lead to a better outcome for the defendant.
See Brumley, 217 F.3d at 910. Martinez himself, when he
interrupted Agent Craft to recite his Miranda rights, stated
that he knew that anything he said could be used against
him. In short, nothing either the prosecutors or Agent Craft
did or said to Martinez led him to reasonably believe that
the April 30 meeting was a plea discussion. The court was
correct to deny the motion to suppress on that basis.
Martinez also challenged the use of his April 30 state-
ments because, he argued, they were obtained in contraven-
40 Nos. 01-1772, et al.
tion of the prosecutors’ ethical obligations. Assistant United
States Attorneys practicing in Wisconsin are subject to the
dictates of Wisconsin Supreme Court Rule 3.8(b). That Rule
provides that the prosecutor in a criminal case must
undertake “reasonable efforts to assure that the accused
has been advised of the right to, and the procedure for
obtaining, counsel and has been given reasonable opportu-
nity to obtain counsel.” Wis. Sup. Ct. R. 20:3.8(b).5 Martinez
contends that, although prosecutors told Martinez he had
the right to an attorney, they did not inform him about the
procedure for obtaining one or give him a reasonable
opportunity to obtain counsel. He argues that suppression
of his statements is the appropriate remedy for this alleged
ethical violation.
The district court rejected the government’s argument
that Rule 3.8(b) does not apply until a suspect is formally
indicted. The court found that the prosecutors advised
Martinez of his right to an attorney but failed to advise him
of the procedure for obtaining counsel and did not give him
an opportunity to do so, both contrary to Rule 3.8(b)’s
requirements. The court declined, however, to suppress the
evidence obtained during the April 30 meeting. Acknowl-
edging the dearth of authority interpreting any rules
governing prosecutors, the court found that any violation
was not egregious, highly improper or unconscionable. The
court therefore declined to exercise its supervisory powers
to suppress the evidence.
5
Rule 2.05 (now found in slightly modified form at General Local
Rule 83.10(a)) of the Local Rules for the Eastern District of
Wisconsin required government attorneys, including prosecutors,
to adhere to the Wisconsin Supreme Court’s Rules of Professional
Conduct for Attorneys, SCR 20:1.1-8.5. Additionally, a federal
statute requires government attorneys to comply with the ethical
rules of the state in which they practice. See 28 U.S.C. § 530B(a).
Nos. 01-1772, et al. 41
We are doubtful that the prosecutors here violated any
ethical rules. They carefully investigated whether Martinez
was represented by counsel and insisted on a complete
reading of his Miranda rights even after he interrupted the
recitation to boast that he knew his rights better than
Agent Craft. He told the prosecutors that he was smart
enough to decide what to do on his own. He then agreed to
speak without a lawyer after being told he had a right to an
attorney and that one would be appointed for him if he
could not afford to hire a lawyer himself. Neither the
district court nor the parties nor this court could find any
authority requiring anything more specific of the prosecu-
tors than what they did here, and Rule 3.8(b) itself is
somewhat ambiguous about its application in the setting of
a pre-indictment, custodial interrogation. But we need not
decide conclusively whether the district court was correct in
finding an ethical violation because the court did not abuse
its discretion in declining to suppress the statements.
United States v. Johnson, 327 F.3d 554, 562 (7th Cir. 2003),
cert. denied, 540 U.S. 1111 (2004) (reviewing for abuse of
discretion a court’s exercise of its inherent powers). Even if
this was an ethical lapse, and again, we are not deciding
that issue today, we see no reason to require suppression.
Nothing in the record indicates that this was a wilful or
egregious act on the part of these prosecutors; to the
contrary, they appeared to be making every effort to comply
with their prosecutorial obligations. Nor did their conduct
result in a constitutional violation. And finally, there was
no clear authority informing them that they were under an
obligation to do more than they did. For these reasons, we
find no abuse of discretion in the district court’s decision not
to suppress the evidence obtained at the April 30 meeting.
III.
We turn now to the defendants’ sentencing claims. The
defendants’ joint opening brief was filed after the Supreme
42 Nos. 01-1772, et al.
Court’s decision in Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531 (2004), but before the Supreme Court decided
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
The district court sentenced all of the defendants in 2001,
using the mandatory Guidelines scheme that existed pre-
Booker. The joint brief thus sought to have all of the
sentences vacated and remanded for new sentencing
hearings. In his individual brief, Olson also challenged the
court’s Guidelines calculations and argued that his sentence
violated his Eighth Amendment right to be free from cruel
and unusual punishment. By the time the government filed
its responsive brief, the Supreme Court had decided Booker
and we had issued our opinion in United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), cert. denied, 126 S. Ct. 1343(2006), where we set forth a procedure for limited remand
in certain cases where a Booker objection had not been
properly preserved. The government noted that four of the
defendants, Martinez, Mendez, Olson and Vasquez, had not
preserved a Booker claim and asked that we issue a limited
Paladino remand in those cases. The government conceded
that Acosta preserved a Booker claim but argued that any
error was harmless. The government nonetheless suggested
that we should order a Paladino remand of Acosta’s case to
ensure that any error did not prejudice Acosta. In their
reply briefs, three of the defendants, Martinez, Mendez and
Vasquez, request Paladino remands. Because the govern-
ment concedes that Paladino remands are appropriate for
those three defendants, we order limited remands in their
cases in accordance with our procedure in Paladino, so that
the court may consider whether it would have imposed a
different sentence had it known that the Guidelines were
advisory rather than mandatory.
Acosta preserved his Booker-type claim and asks that we
vacate his sentence and remand for resentencing. The
government argues that any error in sentencing Acosta was
harmless and that he should at most receive a Paladino
Nos. 01-1772, et al. 43
remand. In United States v. Schlifer, 403 F.3d 849 (7th Cir.
2005), we noted that the remedial part of Booker, which
requires the courts to consult the Guidelines in an advisory
fashion, must be applied to all cases pending on direct
review, even in the absence of a Sixth Amendment viola-
tion. 403 F.3d at 853. “Thus, in every pending appeal where
the district court sentenced a defendant under the now-
defunct mandatory guidelines scheme, error will have been
committed.” 403 F.3d at 853. The existence of error, how-
ever, does not automatically lead to resentencing in every
case. Rather, we will apply the doctrines of plain error and
harmless error in determining whether resentencing is
necessary. 403 F.3d at 853. Although the other four defen-
dants are subject to the plain error standard because they
forfeited this objection in the district court, Acosta pre-
served his objection and is entitled to plenary review. 403
F.3d at 853-54. Because the district court’s error amounts
to a misapplication of the Guidelines, Acosta’s sentence
must be vacated unless the error was harmless. 403 F.3d at
854. “When an error relates to the validity of a defendant’s
sentence, it is harmless only if it did not affect the district
court’s choice of sentence.” 403 F.3d at 854. The government
argues that the error was harmless here because Acosta
executed Angelique Morales, carried out a brutal premedi-
tated attack on a deputy at a local jail while awaiting trial
in this case, and because Acosta occupied positions of
leadership in the Latin Kings where he was a large-scale
drug trafficker. Moreover, Acosta told the probation officer
drafting his pre-sentence report that he will always be a
Latin King and he expressed no remorse for his crimes. The
government has not demonstrated that the court’s misappli-
cation of the Guidelines as mandatory did not affect its
choice of sentence. We have reviewed the transcript of
Acosta’s sentencing hearing, which occurred at a time when
no one anticipated the changes brought about by Booker.
The district court made no definitive comments that we
44 Nos. 01-1772, et al.
could use to determine that the error was harmless.
Therefore, we must vacate Acosta’s sentence and remand
for resentencing. Schlifer, 403 F.3d at 853-54.
Olson did not preserve a Booker objection but he argues
that the district court miscalculated his Guidelines range.
Both the government and Olson agree that he is entitled to
a Paladino remand but we must first address the merits of
his arguments about errors in the court’s Guidelines
calculations. United States v. Dean, 414 F.3d 725, 727 (7th
Cir. 2005); United States v. Skoczen, 405 F.3d 537, 549 (7th
Cir. 2005), cert. denied, 126 S. Ct. 1380 (2006). The Guide-
lines “retain force even though they are no longer manda-
tory, and thus errors in their application remain relevant.
Skoczen, 405 F.3d at 549. The Guidelines are now treated
as advisory and if the district court erred in its Guidelines
calculations, its judgment about a reasonable sentence
would presumably be affected by that error. Dean, 414 F.3d
at 727 (Booker requires the sentencing judge first to
compute the Guidelines sentence and then to decide
whether the Guidelines sentence is the correct sentence to
give that particular defendant); Skoczen, 405 F.3d at 549.
We continue to review the district court’s factual findings at
sentencing for clear error and we review the application of
the Guidelines to those facts de novo. United States v.
Arnaout, 431 F.3d 994, 998 (7th Cir. 2005).
The jury found Olson guilty of one count of conspiracy to
commit racketeering and one count of conspiracy to distrib-
ute controlled substances. The verdict form for the latter
count asked the jurors to specify which controlled sub-
stances Olson conspired to distribute and they indicated
“cocaine in any form” and marijuana. Olson now argues
that the district court erred when it found that (1) he could
have reasonably foreseen the distribution of more than
30,000 kilograms of marijuana-equivalent; and (2) he
possessed firearms at the time he committed his crimes. He
also contends that his sentence of 262 months violates the
Eighth Amendment prohibition against cruel and unusual
Nos. 01-1772, et al. 45
punishment. In finding that Olson reasonably foresaw the
sale of more than 30,000 kilograms of marijuana equiva-
lent, the district court accepted a summary of the trial
evidence prepared by the government and included in the
pre-sentence investigation report (“PSR”). The court
declined to apply a two-point enhancement for a
leader/organizer in a drug conspiracy and instead found
that Olson was a minor participant, warranting a two-level
decrease. The court accepted the PSR recommendation to
add two levels to Olson’s drug conspiracy sentence pursuant
to § 2D1.1(b)(1) because Olson stored Nation guns.
We begin with the gun enhancement. Olson complains
that the court adopted the PSR recommendation without
making any findings on the issue. The government charac-
terizes this argument as frivolous, noting that Olson never
objected to this enhancement when given an opportunity to
do so in the district court. The government urges us to limit
our review of this issue to plain error. Under any standard,
Olson’s objection fails. Olson conceded at his sentencing
hearing that he stored 160 pounds of marijuana at his
home; we will address the other quantities below but for the
sake of the gun enhancement, we will take Olson at his
word that he stored this enormous amount of marijuana in
his home. This is not, needless to say, a personal use
quantity, although Olson apparently helped himself to
whatever amounts he wanted for personal consumption.
Olson also conceded that he participated in shootings and
ample testimony supported Olson’s participation in violent
Latin Kings “missions” that involved shootings. At least two
witnesses testified that Nation guns were stored at Olson’s
house. To support an enhancement under § 2D1.1(b), the
government bears the burden of proving by a preponderance
of the evidence that a gun was possessed during the
commission of the offense or relevant conduct. United States
v. Berthiaume, 233 F.3d 1000, 1003-04 (7th Cir. 2000). See
also United States v. Hernandez, 330 F.3d 964, 991 (7th Cir.
46 Nos. 01-1772, et al.
2003), cert. denied, 541 U.S. 904 (2004) (a defendant may be
held responsible for a co-defendant’s possession of a weapon
if that possession was in furtherance of jointly undertaken
criminal activity and was reasonably foreseeable by the
defendant). If the government satisfies this standard, the
burden shifts to the defendant to show that it was clearly
improbable that the gun was connected to the offense.
Berthiaume, 233 F.3d at 1004. The government met its
burden with evidence that Nation guns were stored at
Olson’s house, that Olson stored and sold drugs out of the
house and that Olson participated in Nation shootings
where Nation guns were used. Olson has presented no
evidence to demonstrate that the guns were not connected
to the offenses at issue. The court thus did not err in adding
two levels to Olson’s offense level for possession of a gun
under § 2D1.1(b).
We next consider whether the court erred in finding Olson
liable for more than 30,000 kilograms of marijuana equiva-
lent. Olson attacks the credibility of a number of witnesses
who testified at trial and also challenges several erroneous
statements that appear in the PSR. The government
concedes several errors in the PSR but argues that they are
harmless. For example, the PSR states that Miguel Romero
testified that Vasquez’s drug houses sold one to two ounces
of crack each week. In fact, the PSR should have stated that
Romero would testify to that figure if asked and had given
that number in a pretrial statement. The PSR also stated
that Douglas Beyreis saw Olson sell crack when in fact
Beyreis testified that he saw Olson sell only marijuana. The
PSR also slightly misstated the testimony of Thomas
Overland. Overland had testified to providing Vasquez with
cocaine outside of another house on the same block as
Olson’s house but the PSR placed the transfer outside of
Olson’s house. Finally, the PSR mischaracterized the pre-
trial statements of Benjamin Drews as testimony. Drews,
like Romero, provided information to authorities before trial
that he was not asked to repeat under oath at the trial.
Nos. 01-1772, et al. 47
The district court’s calculation of the quantity of drugs
involved in the offense is a finding of fact reviewed for clear
error. United States v. Hamzat, 217 F.3d 494, 499 (7th Cir.
2000). As the government points out, other witnesses
provided testimony that supported the court’s findings
about the amount of drug sales reasonably foreseeable to
Olson, and in the instances where the PSR
mischaracterized proffers as testimony, the district court
would have been entitled to use the proffers in calculating
drug quantities. Indeed, the district court presided over the
trial and knew which statements were made under oath at
trial and which were made in pre-trial proffers, even if the
PSR mischaracterized those statements. Among the
evidence at trial that demonstrated the extent of Olson’s
involvement with crack sales, Brian Turner’s testimony
alone established an amount of crack that would justify
Olson’s sentence. Turner testified that Olson ran a crack
house for Vasquez, selling approximately one ounce per
week from the winter of 1995 until March of 1997. That
means that for approximately sixteen months or sixty-eight
weeks, Olson sold an ounce of crack each week. Sixty-eight
ounces translates to approximately 1927.8 grams of crack.
Under the 2000 Sentencing Guidelines, one gram of crack
is treated as equivalent to 20 kilograms of marijuana, which
would mean Olson sold the equivalent of 38,556 kilograms
of marijuana. Jordan Mueller also testified that Olson and
Vasquez sold crack out of Olson’s house, and Mueller
delivered one to two ounces of crack to Olson’s house five to
ten times. And of course, Olson was liable not only for the
amounts he personally sold but also for the foreseeable
amounts sold by his co-conspirators, including Vasquez.
United States v. Jarrett, 133 F.3d 519, 531 (7th Cir.), cert.
denied, 523 U.S. 1112 (1998). The determination of reason-
able foreseeability is a factual determination reviewed for
clear error. Jarrett, 133 F.3d at 531. Olson attempts to
attack the credibility of Turner who he describes as “not
just unreliable” but “incredible.” The sentencing judge is
48 Nos. 01-1772, et al.
best situated to determine the credibility of the witnesses,
however, and we will not disturb the court’s finding on
credibility unless it is without foundation. United States v.
Ferguson, 35 F.3d 327, 333 (7th Cir. 1994), cert. denied, 514
U.S. 1100 (1995). Olson claims that the sentencing judge
may have mistakenly believed that Turner’s testimony was
corroborated by Romero, Beyreis, Overland and Drews.
Again, however, the sentencing judge presided over the trial
and heard the testimony; he was thus able to distinguish
between statements made under oath at trial and state-
ments proffered in the pre-trial process. We cannot find
clear error in the drug quantity calculation.
Olson also argues that his sentence violates the Eighth
Amendment’s prohibition against cruel and unusual
punishment because his sentence is grossly disproportion-
ate to the crime committed. He contends he was a small-
scale dealer and that he was only a minor participant in the
Latin Kings conspiracy. He notes that after he was sen-
tenced, Congress amended the Guidelines in November
2002 to cap the base offense level for drug offenders who
receive mitigating role reductions (as he did here) in
conspiracy to distribute offenses. If the amendment were
taken into account, he argues, his sentence would have been
capped at 135 months, or roughly half of the sentence he
ultimately received. The government points out that the cap
on which Olson relies was rescinded in November 2004 and
that the Guidelines now apply a sliding scale tied to the
defendant’s drug quantity when the defendant receives a
minor role adjustment. Under that scenario, the govern-
ment posits, Olson’s 262-month sentence would still be
within the range of the current Guidelines. The government
also points out that Olson was not merely a drug dealer but
stored guns for the Latin Kings, gave violations, and was
present when shootings were ordered and completed. Based
on this additional conduct, Olson was exposed to a forty-
year sentence, twenty years on Count II and twenty years
Nos. 01-1772, et al. 49
on Count III. Olson disagrees with the government’s
calculations, contending that, under the November 2004
amendment, he would be subject to, at most, a 210-month
sentence.
The Eighth Amendment prohibits punishments which
involve the unnecessary and wanton infliction of pain, are
grossly disproportionate to the severity of the crime for
which an inmate was imprisoned, or are totally without
penological justification. Whitman v. Nesic, 368 F.3d 931,
934 (7th Cir. 2004). In non-capital felony convictions, a
particular offense that falls within legislatively prescribed
limits will not be considered disproportionate unless the
sentencing court abused its discretion. Henry v. Page, 223
F.3d 477, 482 (7th Cir. 2000), cert. denied, 532 U.S. 959(2001). The primary reason for the length of Olson’s
sentence is his sale of crack cocaine and the foreseeable
sales of crack by his co-conspirators. His sentence was
within the properly calculated range prescribed by the
Sentencing Guidelines at the time of sentencing and the
district court did not abuse its discretion in sentencing
Olson within those limits. The Supreme Court has upheld
against an Eighth Amendment challenge a sentence of life
without the possibility of parole for possession of 672 grams
of cocaine. Harmelin v. Michigan, 501 U.S. 957, 994-95
(1991). We thus find no constitutional violation here. Even
though we find no error in the district court’s Guidelines
calculations, Olson is entitled to a limited remand pursuant
to our procedures in Paladino, so that the court may
consider whether it would have imposed a different sen-
tence had it known that the Guidelines were advisory
rather than mandatory.
IV.
In sum, we affirm the convictions of all five defendants.
We order limited remands in the cases of Martinez, Mendez,
50 Nos. 01-1772, et al.
Vasquez and Olson for proceedings consistent with
Paladino and this opinion. We vacate Acosta’s sentence and
remand for resentencing consistent with this opinion.
Pending the outcome of the limited remands, this court will
retain jurisdiction over the appeals.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-12-06