United States v. Souffront, Kent R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 00-2837, 00-3017, 00-3070, and 00-3514
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE SOUFFRONT, also known as BAM BAM,
JORGE MARTINEZ, also known as DANNY,
also known as CHICO, GUSTAVO COLON, also
known as EL MAGNATE, also known as BOSS,
also known as GINO, also known as LORD GINO,
also known as JEFE, and MARISOL COLON,
also known as MARI,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 659—Wayne R. Andersen, Judge.
____________
ARGUED JANUARY 9, 2001—DECIDED AUGUST 6, 2003
____________
Before FLAUM, Chief Judge, HARLINGTON WOOD, JR. and
EASTERBROOK, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. Fourteen mem-
bers of the Latin Kings street gang, including the four
above-named defendants, were indicted on numerous drug-
related offenses, including conspiracy with intent to
distribute cocaine, heroin, and marijuana under 21 U.S.C.
2 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
§ 846, engaging in a continuing criminal enterprise (“CCE”)
under 21 U.S.C. § 848(a), knowingly and intentionally us-
ing a telephone in causing and facilitating the commis-
sion of a felony under 21 U.S.C. § 843(b), distributing
cocaine under 21 U.S.C. § 841(a)(1), and attempting to
distribute cocaine in violation of 21 U.S.C. § 846. Jose
Souffront (“Souffront”), Jorge Martinez (“Martinez”),
Gustavo Colon (“Colon”),1 and Marisol Colon (“Marisol”),
were tried before a jury and found guilty. Of the remain-
ing ten defendants, seven, including Wilfredo Escobar
(“Escobar”) and Rene Herrera (“Herrera”), pleaded guilty
prior to trial, the eighth was granted a motion to sever his
trial, the ninth is a fugitive, and the tenth was dismissed
from the indictment because he suffered severe brain
damage in a drug-related beating.
The defendants, individually and collectively, appeal
numerous issues. We reject all their arguments as the
evidence of defendants’ guilt was more than sufficient and
the alleged trial errors were either nonexistent or clearly
harmless. We affirm in all respects.
I. BACKGROUND
We recount the basic facts and elaborate as called for
in each specific issue.
In 1972, at age eighteen, Colon was sentenced to 30 to
60 years in prison for murder. See People v. Colon, 314
N.E.2d 664, 666 (Ill. App. Ct. 1974). That same year Colon
became the leader of the Latin Kings street gang, a posi-
1
Although Gustavo Colon is referred to as both Gustavo and Gino
throughout the record, we will use his legal surname.
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 3
tion he has retained since that time.2 Although incarcer-
ated in the Illinois Department of Corrections, Colon
directed and controlled the narcotics-related activities of
the gang. The charges from this particular indictment
pertain to a gang-related conspiracy from 1995 to Sep-
tember 17, 1997. Colon maintained his control through
telephone calls and personal visits with his wife Marisol.
He made telephone calls almost every evening to Marisol,
who would often conference in other members of the
conspiracy, including Souffront and Martinez. Under prison
policy, prior to any inmate making a call, a recording
is played which states that all conversations, except for
calls to attorneys, may be recorded and monitored. Ap-
proximately seventy of Colon’s telephone calls were
played at trial.
Marisol served as Colon’s advisor, informing him of the
distribution activities of the conspiracy and facilitating
communications between Colon and his key subordinates,
Souffront, Martinez, and Escobar. Marisol received weekly
payments through “street taxes,” which represented a
portion of the sales of the illegal drugs. Escobar testified
that the payments to Marisol started at $500 a week for
the first several weeks and then ranged from $500 to
$1500 a week for the duration of the conspiracy.
Souffront acted as a “regional,” or street boss, overseeing
gang activity and ordering punishment for members
2
At the sentencing hearing, Colon contested the fact that he was
the “leader” of the Latin Kings in Chicago, Illinois. The govern-
ment stated that there are two known factions of the Latin Kings,
the north side (primarily Puerto Rican) and the south side
(primarily Mexican). While the government characterized Colon
as “the leader of the Latin Kings street gang,” there was ample
evidence showing that Colon, who is Puerto Rican, directed all
of the narcotics dealings by the Latin Kings on the north side
of Chicago.
4 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
who failed to follow gang law, in addition to keeping rec-
ords of the drug sales. Colon demoted Souffront after
police executed a search warrant at Souffront’s apart-
ment and recovered approximately 34 grams of powder
cocaine, 21 grams of crack cocaine, and a .38 caliber
handgun. After Colon replaced Souffront with Martinez
as regional, Souffront withdrew from the conspiracy in
February 1996 when Colon ordered him to be shot as
punishment for leaving incriminating evidence in his
apartment.
Herrera was Colon’s main drug supplier. Herrera testi-
fied that during the time period involved, he delivered “a
little bit over 44” kilograms of cocaine to Souffront, Escobar,
and Martinez. There was also testimony that Escobar
purchased at least 1 kilogram of cocaine from Ariel
Ginjuama and 5 kilograms from Fernally Llanos. Escobar
stated in his plea agreement that he was involved in
the purchase of over 150 kilograms of powder cocaine,
based on his grand jury testimony that during the eight
months prior to his arrest in February 1997, he pur-
chased an average of 5 kilograms of cocaine a week
from Herrera. However, the district court judge based his
sentencing determination on Herrera’s 44 kilograms, and
the 6 kilos Escobar purchased from the other two dealers,
finding that Colon, Marisol, and Martinez were respon-
sible for between 50 and 150 kilograms of cocaine. Colon
was sentenced to life in prison, Martinez to 400 months,
Souffront to 240 months, and Marisol to 120 months.
One of the primary issues raised on appeal, that of the
prosecutor’s failure to disclose exculpatory or impeach-
ment evidence, originates from Martinez’s sentencing
hearing on January 20, 1999. The Assistant United States
Attorney (“AUSA”) requested that sentencing be post-
poned and that arguments be heard in camera. The dis-
trict court judge granted the requests and an in camera
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 5
hearing was held that day with the AUSA and counsel
for Martinez. The AUSA stated that he had recently learned
of a potential problem with one of the law enforcement
officers who participated in the search of Souffront’s
apartment and had testified at trial, Chicago police offi-
cer Jon Woodall (“Woodall”). Because Woodall was the
subject of an active, ongoing criminal investigation, the
AUSA did not identify him at that time and requested
that all proceedings involving Woodall be held in camera
until Woodall was indicted. The district court judge had
a transcript prepared of the in camera hearing and or-
dered it to be read by all defense counsel who were not
present at the hearing. Because the investigation was
ongoing, the government presented a motion moving for
the in camera and ex parte examination of documents
relating to the investigation. The government outlined
the nature of the investigation and impeachment evidence
and suggested that the district court judge determine
whether the impeachment evidence would have been
material at trial without disclosing the evidence to the
defendants.3
Based on a review of the material submitted by the
government, the district court judge concluded that
Woodall’s credibility was compromised, and, absent full
disclosure to the defendants, his testimony should be
struck from the record. The government argued that the
testimony should not be stricken and that the parties
could make a determination as to whether Woodall’s
3
The government conceded that its investigation of the officer
had begun prior to the defendants’ trial and that the impeaching
evidence should have been disclosed to the defendants during
the trial. However, the three AUSAs involved in the trial ad-
vised the district court judge that they had no knowledge of the
investigation. The judge believed them and accepted their
statements as true.
6 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
credibility was material to the outcome of the trial without
disclosing the evidence, maintaining that disclosure
would compromise the ongoing investigation. The judge
rejected this proposal and informed the government that
if they were unwilling to disclose the materials relating to
the investigation of Woodall, the judge would be forced to
order a new trial. Some of the materials were eventu-
ally presented to defendants subject to a protective order.
However, Judge Andersen ruled that several of the docu-
ments did not need to be disclosed because he determined
that, even under the broadest possible interpretation of
the government’s obligation to disclose exculpatory or
impeaching evidence, there were several documents
which would not have been discoverable under Giglio v.
United States, 405 U.S. 150, 154 (1972) (stating that
materiality of the evidence is required and that undis-
closed evidence “possibly useful to the defense but not
likely to have changed the verdict” is not material).
In July 1999, defendants filed a motion for a Giglio
hearing. On September 27, 1999, defendants filed a supple-
mental motion for a Giglio hearing and new trial, present-
ing six issues concerning withheld evidence4 and argu-
ing that the withholding of the evidence prejudiced their
ability to defend themselves at trial. Those allegations
related not only to Woodall’s credibility but to alleged
activities of a Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) agent, and alleged perjury of one of the witnesses
at trial.
In their joint brief, defendants contend: (1) the prosecu-
tors were guilty of misconduct under Giglio by failing
to disclose six instances of withheld evidence; (2) the
4
As will be detailed later when addressing the individual issues,
some of the material had already been disclosed to defendants,
although they continue to argue none of it was known to them.
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 7
district court erred in admitting into evidence two photo-
graphs, one recovered during the search of Souffront’s
residence which showed Souffront, Martinez, and a third
individual holding handguns, and the second, one of Colon,
Martinez, and Escobar, taken at the Pontiac Correctional
Institution; (3) their constitutional rights were violated
under Apprendi v. New Jersey, 530 U.S. 466 (2000), because
the indictment did not allege drug quantities; (4) their
sentences pursuant to 21 U.S.C. § 841(a) were in violation
of Apprendi; and (5) the district court erred under United
States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vacated
on reh’g en banc by 165 F.3d 1297 (10th Cir. 1999), and
violated 18 U.S.C. § 201(c)(2) by allowing cooperating
codefendants Escobar and Herrera and witness Santiago
to testify in exchange for lenient sentencing recommenda-
tions.
In addition to the joint brief, Colon, Martinez, and
Marisol filed separate briefs.5 Colon separately appeals five
issues, maintaining that: (1) his trial should have been
severed from that of his codefendants; (2) the district
court relied on inappropriate evidence during his sentenc-
ing hearing; (3) jury instruction No. 13 was erroneously
submitted; (4) he was denied his constitutional right to
a speedy trial; and (5) the district court erred when it
failed to instruct the jury that it must unanimously agree
on the acts which constitute a CCE. Martinez also argued
the CCE conviction was erroneous, in addition to chal-
lenging his sentence.
5
Although Marisol filed a separate brief, the only issue presented
concerned the unconstitutionality of her sentence under Apprendi,
in that the indictment did not specify drug quantity. That issue
is addressed in the joint brief.
8 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
II. ANALYSIS
A. Joint Brief
1. Undisclosed Giglio Material
Defendants maintain that the district court erred in
failing to dismiss the indictment or grant a new trial
based upon prosecutorial misconduct. Our review of a
district court’s denial of a post-trial motion for a new
trial is deferential. See Turner v. Miller, 301 F.3d 599,
601 (7th Cir. 2002); see also Amer. Nat. Bank & Trust v.
Regional Trans. Auth., 125 F.3d 420, 431 (7th Cir. 1997)
(citation omitted). We reverse the district court’s denial
of such a motion only upon a showing that the district
court abused its discretion. Carter v. Chicago Police Offi-
cers, 161 F.3d 1071, 1079 (7th Cir. 1998). Under the abuse
of discretion standard, we do not second-guess the deci-
sion of a trial judge, Amer. Nat. Bank & Trust, 125 F.3d
at 420, nor do we reweigh the evidence. See Alverio v.
Sam’s Warehouse Club, Inc., 253 F.3d 933, 939 (7th Cir.
2001). In reviewing a motion for a new trial, viewing
the evidence in the light most favorable to the prevailing
party, we draw all reasonable inferences that can be
drawn from the evidence and will not set aside the jury’s
verdict if there is a reasonable basis in the record which
supports that verdict. See Carter, 161 F.3d at 1079. Defen-
dants, therefore, face a difficult burden in order to succeed.
See Alverio, 253 F.3d at 939 (“[Defendant] bears a heavy
burden in convincing us that the district court should
have granted her a new trial.”); see also Amer. Nat. Bank
& Trust, 125 F.3d at 431.
The first issue of the joint brief repeats the six in-
stances specified in the supplemental motion for a Giglio
hearing and new trial alleging the government failed
to disclose that: (1) Woodall’s testimony lacked credibility
because he was being investigated for the theft of co-
caine from an unrelated drug dealer’s car; (2) Woodall
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 9
committed perjury in swearing to the affidavit that pro-
vided the basis for the search warrant executed on
Souffront’s apartment; (3) Woodall stole cocaine and money
from Souffront’s apartment; (4) Woodall stole drugs,
fabricated a search warrant, and engaged in criminal
activity with respect to the arrest and prosecution of
Evelyn Miranda (“Miranda”) in an unrelated case; (5) an
ATF agent in the instant case covered-up and allegedly
participated in the theft of jewelry and money from an
unrelated third party in a 1992 search; and (6) Escobar
committed perjury in omitting to testify about his receipt
and sale of drugs for another drug ring during his involve-
ment with the charged conspiracy.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), “the
suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecu-
tion.” Impeachment evidence as well as exculpatory evi-
dence falls within this rule. Giglio, 405 U.S. at 154; see
also United States v. Bagley, 473 U.S. 667, 676 (1985).
Such evidence also includes information which may be
known only to the police investigators and not the pros-
ecutors. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
With a Brady challenge, a defendant must establish
that the prosecution suppressed evidence, the evidence
was favorable to the defense, and the evidence was mate-
rial to an issue at trial. United States v. Silva, 71 F.3d 667,
670 (7th Cir. 1995) (citations omitted). Like the case in
Bagley, 473 U.S. at 678, where the government failed to
assist the defense by disclosing information that might
have been helpful in conducting cross-examination, “such
suppression of evidence amounts to a constitutional viola-
tion only if it deprives the defendant of a fair trial . . .
and . . . only if the evidence is material in the sense that
its suppression undermines confidence in the outcome of
10 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
the trial.” The suppressed evidence is material “only if
there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 682; see also Strickler v.
Greene, 527 U.S. 263, 280 (1999). In addition,
the effect that a particular piece of evidence is likely to
have had on the outcome of a trial must be determined
in light of the full context of the weight and credibility
of all evidence actually presented at trial. Having
personally observed the entire proceeding, the district
court judge is best positioned to make this determina-
tion.
Silva, 71 F.3d at 670.
Although we will address each of the six Giglio allega-
tions individually, after reviewing the extensive record,
we agree with the district court’s determination in its
unpublished memorandum opinion and order in response
to defendants’ motion and supplemental motion for a
Giglio hearing and a new trial, holding that “[t]he stagger-
ing weight of the evidence at trial leads this Court to
the certain conclusion that there was no reasonable proba-
bility of a different result at the trial even had all of the
allegedly suppressed evidence been disclosed.” The district
court noted,
During a nine-week trial, the jury listened to hours
of evidence recorded on approximately seventy audio
tapes. The tapes featured numerous conversations in
which the Defendants spoke about the charged drug
sales. The jury was presented with more than enough
evidence from the lips of the Defendants to convict
all of the Defendants.
a. Woodall’s testimony and impeachment evidence
Woodall testified that he and nine other officers executed
a search warrant at Souffront’s apartment. Woodall cata-
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 11
logued the evidence brought to him by the other officers.
The items recovered included a .38 caliber handgun and a
fire extinguisher with a false bottom which concealed a
quantity of powder and rock cocaine. No substantive
charges were based on this cocaine. The handgun, fire
extinguisher, and cocaine were introduced into evidence
at trial. The scope of Woodall’s testimony involved identify-
ing the exhibits which had been collected by the other
officers.
The materials disclosed by the government indicate
that Woodall was being investigated for allegedly stealing
narcotics from the car of a purported drug dealer named
Garza, who had no involvement in the defendants’ conspir-
acy. The district court conceded this evidence would
be favorable to the defendants in order to impeach the
credibility of Woodall’s testimony in defendants’ case.
However, the remaining question is whether this evidence
was material to an issue at trial, see Silva, 71 F.3d at
670, which would then have changed the result of the
trial if the information had been disclosed to the defen-
dants. See Bagley, 473 U.S. at 682.
Defendants argue that Woodall was not a credible wit-
ness to the search of Souffront’s apartment because he
allegedly acted improperly on a prior occasion and that
the evidence from the search should have been excluded
because Woodall was involved. Defendants conclude
this entitles them to a new trial yet they have not demon-
strated that Woodall’s testimony was false. In a single,
tape-recorded conversation with Colon, Souffront cor-
roborated Woodall’s testimony. Souffront told Colon that
the police “got a gun from the house,” “took the rest of
the [cocaine],” and recovered “the fire extinguisher.” The
trial record indicates Woodall’s testimony was corroborated
not only by other witnesses, including conversations
between some of the defendants and testimony from
Herrera and Escobar, but by the government’s physical
12 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
evidence. Even without the evidence found in Souffront’s
apartment, additional evidence against the defendants
was so overwhelming that it was sufficient to convict them
of the charges. There was no reasonable probability that
the outcome of the proceeding would have been different,
see Bagley, 473 U.S. at 682, and the district court did
not abuse its discretion in denying defendants’ motion
based on this factor.
b. Woodall’s search warrant affidavit
Defendants maintain that Woodall committed perjury
in his affidavit in support of the search warrant for
Souffront’s apartment. Although all defendants join in
this argument, only Souffront, who had an expectation
of privacy in his apartment, has standing to challenge
the affidavit. See Minnesota v. Carter, 525 U.S. 83, 91
(1998). Even had the evidence from Souffront’s apartment
been obtained through an illegal search and seizure, it
would still be admissible against the other defendants.
See Rakas v. Illinois, 439 U.S. 128, 134 (1978) (“A person
who is aggrieved by an illegal search and seizure only
through the introduction of damaging evidence secured
by a search of a third person’s premises or property has
not had any of his Fourth Amendment rights infringed.”);
see also Terry v. Martin, 120 F.3d 661, 664 (7th Cir. 1997).
Defendants state that “[t]he warrant is defective on
its face and should have been quashed,” based on the fact
that the warrant contained a statement that police
were told about Souffront’s apartment from a reliable
informant on February 4, 1994 but the warrant was signed
and dated February 4, 1996. A motion to quash a search
warrant based on false information in the supporting
affidavit is reviewed under the dictates of Franks v. Dela-
ware, 438 U.S. 154 (1978). See United States v. Jackson,
103 F.3d 561, 573 (7th Cir. 1996).
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 13
Due to the procedure of the case, in that the undisclosed
information was first revealed to the court at Martinez’s
sentencing hearing, Souffront never actually requested
a Franks hearing. The district court, therefore, did not
rule on whether or not Souffront was entitled to a hear-
ing. Although the defendants have concentrated on argu-
ing this issue as a Giglio violation, the possibility of a
Franks hearing was raised in post-trial motions and
analyzed under the Franks criteria in the district court’s
memorandum opinion and order in response to defendants’
motion and supplemental motion for a Giglio hearing
and new trial. Therefore, we will examine the underlying
issue of the Franks hearing. See United States v. Mc-
Donald, 723 F.2d 1288, 1292-93 (7th Cir. 1983) (citation
omitted).
In Franks, the Supreme Court held that intentionally
or recklessly submitting false statements in the affidavit
supporting a search warrant violates the Fourth Amend-
ment. 438 U.S. at 164-65. The Court further held that
in certain limited situations, a defendant may obtain a
hearing to present evidence challenging the affidavit’s
truth. To obtain an evidentiary hearing, the defendant
must make a “substantial preliminary showing” that the
affiant has intentionally or recklessly included a false
statement in the affidavit, and that the false statement
is material in order to find probable cause. Id. at 155-56;
see also United States v. Hornick, 815 F.2d 1156, 1158
(7th Cir. 1987) (“[defendant] bears a substantial burden
to demonstrate probable falsity”). The defendant “must
offer direct evidence of the affiant’s state of mind or infer-
ential evidence that the affiant had obvious reasons
for omitting facts in order to prove deliberate falsehood
or reckless disregard.” United States v. McNeese, 901 F.2d
585, 594 (7th Cir. 1990) (citation omitted).
If the material that is allegedly false is set aside, and
“there remains sufficient content in the warrant affidavit
14 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
to support a finding of probable cause, no hearing is re-
quired.” Franks, 438 U.S. at 171-72. In addition, there is
a presumption as to the validity of the affidavit support-
ing the search warrant which must be overcome. Id. at 171.
Souffront argues the warrant was “defective on its
face” because of the differences in the two dates—February
4, 1994 and February 4, 1996. What he fails to note is
that the complainant line of the cover page of the
Search Warrant is dated 04 FEB 96, with the judge’s
signature and date of February 4, 1996 signed at the
bottom. The first page of the Complaint for Search War-
rant again begins with “On 04 FEB 96” and the judge’s
signature and date of February 4, 1996 signed at the bot-
tom of the page. The second page of the Complaint reads,
“The [reliable informant] stated that in the afternoon hours
of 03 FEB 96, he went to [Souffront’s] residence,” and again
is signed and dated February 4, 1996 by the judge. The
singular appearance of 04 FEB 94 occurs in the probable
cause paragraph on the first page of the Complaint.
The district court correctly concluded that this singular
occurrence of 1994 was merely a typographical error. A
technical contradiction does not reveal a disregard of
the truth. United States v. Maro, 272 F.3d 817, 822 (7th Cir.
2001).
Souffront also contends that “[a] Franks motion could
have been filed if the warrant were not quashed out-
right” if the information concerning the investigation of
Woodall had been disclosed. Again, Souffront must make
a substantial showing that the affidavit contained er-
roneous information and that Woodall knew the affidavit
was false or at least demonstrate that Woodall recklessly
disregarded the truth. See United States v. Amerson, 185
F.3d 676, 687-88 (7th Cir. 1999) (citation omitted).
Evidently, Souffront bases this argument on Woodall’s
conduct concerning Garza, which we have already dis-
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 15
cussed and dismissed, and Woodall’s alleged conduct in
an unrelated search of Miranda’s apartment in 1995,
information which was part of the undisclosed material the
court reviewed in camera. Miranda, arrested for narcotics
offenses, alleged that statements made in support of
the search warrant for her apartment were false and that
the police officers who executed the search, one of whom
was Woodall, stole a kilogram of cocaine. See also People
v. Miranda, 769 N.E.2d 1000, 1003 (Ill. App. Ct. 2002).
Woodall did not sign the affidavit in support of Miranda’s
warrant, and she made no specific allegations against
him; she never mentioned him at any time. The state
court judge held a Franks hearing at which Woodall was
not asked to testify and denied Miranda’s motion to sup-
press. Miranda was tried and convicted at that time.6
Therefore, Miranda’s allegations would not have been
admissible against Woodall under FED. R. EVID. 608(b),
6
Miranda’s conviction was later vacated, see Miranda, 769
N.E.2d at 1003, based on the admissions of Chicago police officer
John Galligan, who signed the Miranda search warrant. Galligan
pleaded guilty to felony charges and stated that he had protected
his partner, Joseph Miedzianowski, who had stolen the cocaine
from Miranda’s apartment. See Todd Lightly, Ex-cop’s Partner
Guilty of Cover-up, CHI. TRIB., Nov. 9, 2001, § 2, at 1. Miedzianow-
ski, leader of a drug ring operating within the police department’s
gang crimes unit, was convicted on ten felony counts, including
racketeering and drug conspiracy. Id.; see United States v.
Miedzianowski, No. 98 CR 923, 2003 WL 280582, at *1 (N.D. Ill.
Feb. 6, 2003); United States v. Miedzianowski, No. 98 CR 923,
2002 WL 737248, at *1 (N.D. Ill. Apr. 25, 2002).
However, there was no admissible evidence against Woodall
at the time of defendants’ trial. These later developments are
irrelevant “because the question is whether the result would have
changed if the prosecutors disclosed the evidence at the time,
not whether the outcome would differ if the case were tried today.”
United States v. Dimas, 3 F.3d 1015, 1019 n.3 (7th Cir. 1993).
16 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
which only allows evidence concerning specific instances
of witness conduct as to truthfulness or untruthfulness.
See United States v. Tomblin, 46 F.3d 1369, 1389 (7th Cir.
1995).
At the time of defendants’ trial, all the AUSAs knew
was that there were unsubstantiated allegations against
several Chicago police officers, but none directly accusing
Woodall, who had participated in the search of Souffront’s
and Miranda’s apartments, of misconduct. The failure to
disclose untrustworthy and unsubstantiated allegations
against a government witness is not a Brady violation. See
United States v. Locascio, 6 F.3d 924, 948 (7th Cir. 1993).
While it is unlikely this information would have been
admissible to cast doubt on Woodall’s credibility, we do
not believe the AUSAs withheld material evidence or
that defendants were prejudiced by the nondisclosure of
the information. Defendants’ trial ended in July 1998, and
it was not until the fall of 1998 that government wire-
taps revealed the truth of Miranda’s allegations.
Souffront does not make a clear or concise argument
but insists that Woodall’s alleged involvement in the
Miranda theft, along with other evidence, would have
required a Franks hearing, resulting in suppression of the
warrant and thereby “negating [defendants’] guilt.” How-
ever, Souffront must make a “substantial preliminary
showing” that Woodall lied in the affidavit. Souffront
continues to argue that because one of the officers indicted
in the Miranda case was found to have made false state-
ments in the affidavit for a search warrant, and Woodall
was one of the officers present at the execution of the
Miranda search warrant, then Woodall must have made
false statements in this case. Souffront has failed to iden-
tify any false statement in the affidavit nor has he estab-
lished that there was a false statement material to prob-
able cause. The presumption of validity cannot be overcome
by defendant’s self-interested inferences and conclusory
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 17
statements. McDonald, 723 F.2d at 1294 (citing Franks,
438 U.S. at 171). The district court did not abuse its dis-
cretion in denying defendants’ motion for a new trial based
on Woodall’s alleged perjury in the search warrant.
c. Woodall’s alleged theft from Souffront’s apartment
Again, only Souffront has standing to contest this is-
sue concerning the search of his apartment. See Rakas, 439
U.S. at 134. And again, the argument on this issue lacks
any clarity beyond stating that “Officer Woodall stole
cocaine and money from Souffront’s apartment on Feb-
ruary 5, 1996, and other personal property.” The con-
solidated brief states:
[W]e know from the allegations of Rene Herrera
that there was substantially more than 44 grams
of cocaine at Souffront’s house on February 5, 1996. It
also seems unusual that the officers failed to inventory
any money following that search. Clearly, materials
similar to those stolen at Miranda’s house were pres-
ent in Souffront’s house.
Souffront has not presented any facts or evidence sup-
porting the conclusion he infers from these assertions. In
fact, in making this argument, he contradicts a previous
statement he made to Officer Michael Cusack and ATF
agent Terry Jackson and taped telephone conversations
which indicated that the only things taken were the gun,
some cocaine, and the fire extinguisher. There is no evi-
dence that there were substantial quantities of cocaine in
the apartment or that money had been taken. Souffront
continues to point to Woodall’s alleged behavior con-
cerning Garza and Miranda and concludes that Woodall
must have stolen from Souffront’s apartment because
Woodall was with a group of police officers who had al-
legedly stolen money and/or property before. Even if
Woodall’s testimony were totally compromised to render
the search invalid, given the weight of the evidence,
18 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
Souffront has not shown there was a reasonable probabil-
ity the trial verdict would have been different. See Bagley,
473 U.S. at 682; see also Strickler, 527 U.S. at 280.
d. Woodall’s alleged criminal activity in the Miranda
search
The merits of this issue have previously been dis-
cussed and dismissed.
e. ATF agent’s alleged corruption
ATF Special Agent Laurie Jolley (“Jolley”) was one of the
investigators in this case. In 1994, a discharged ATF
supervisor filed a civil suit against the ATF which con-
tained allegations of misconduct against Jolley, claiming
that during the execution of a search warrant, Jolley
participated in or assisted in the cover-up of the theft
of jewelry and money by Miedzianowski, one of the police
officers from the Miranda case who was eventually con-
victed of racketeering and distribution of narcotics. See
Klipfel v. Bureau of Alcohol, Tobacco and Firearms, No.
94 C 6415, 1996 WL 566452 (N.D. Ill. Sept. 27, 1996).
Defendants maintain the government failed to disclose
these allegations against Jolley. Although the district
court believed the government had provided defendants
with this information, even had they not, the use of this
information to impeach Jolley’s testimony at trial would
have been of no assistance to defendants as Jolley tes-
tified only on behalf of the defendants. The defendants
called Jolley to impeach Herrera’s testimony and to testify
as to Marisol’s state of mind when the ATF agents ar-
rested and interrogated her. Impeaching the testimony of
their own witness is not favorable to the defense, see Brady,
373 U.S. at 87, and does not raise the probability of a
different verdict. Bagley, 473 U.S. at 682. This argument
is without merit.
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 19
f. Escobar’s alleged perjury
Defendants maintain that Escobar’s testimony at trial
indicated his only source for obtaining drugs was defen-
dants’ gang and that the government failed to disclose
information that Escobar was involved in other drug deals
besides those of defendants. Again, defendants’ argument
is rambling and inferential. Defendants imply that, had
they known Escobar was dealing with other parties, they
could have used that evidence to show that the quantity
of drugs Escobar received came from other sources, not
defendants. Defendants had received discovery materials
in which Escobar stated that he had other sources. As
part of pretrial discovery in the instant case, defendants
received surveillance reports indicating that Escobar was
visiting the apartment building of a known supplier. Prior
to trial, defendants received a videotape made of Escobar
after his arrest in which he acknowledges he had other
suppliers. Defendants used a copy of that videotaped
statement during cross-examination, yet failed to ques-
tion him about receiving drugs from other sources. At
trial, Escobar testified that while he dealt cocaine from
1980 through 1996, he had “[a]bout ten, at least” suppliers,
in addition to the defendants. Defendants also rely on the
plea agreement of Yolanda Navarro, another of Escobar’s
drug suppliers. However, her plea agreement does not
mention Escobar by name or alias. Defendants argument
as to Escobar’s perjury is without merit.
Based on the above-stated arguments, taken individ-
ually or cumulatively, defendants have failed to meet
the necessary requirements to grant a Giglio hearing or
new trial. The district court did not abuse its discretion in
denying defendants’ motion and, given the overwhelm-
ing evidence of record, there is no reasonable probability
the withheld evidence would have produced a different
verdict. See Strickler, 527 U.S. at 280.
20 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
2. Two photographs
Trial courts have broad discretion to admit or exclude
evidence, and we review the district court’s decision to
admit trial evidence under an abuse of discretion stan-
dard. United States v. Spiller, 261 F.3d 683, 688 (7th Cir.
2001). Defendants maintain that the district court abused
its discretion in allowing two photographs to be entered
as government exhibits which unfairly prejudiced certain
defendants. The first was a photograph recovered dur-
ing the search of Souffront’s apartment which showed
Souffront, Martinez, and a third individual, all holding
handguns. The second was a twelve-year-old photograph
recovered during a search of Martinez’s residence which
was taken at the Pontiac Correctional Institution in 1986
showing Colon, who is giving a Latin Kings gang sign
with his hand in the photograph, Martinez, and Escobar,
along with several other unidentified males. Taped to the
top of this photograph are the words “Arriba la Gente,”
translated as “Long live the Nation.”7 Taped to the bot-
tom is the word “Gunmen.”
Although defendants objected at trial to the admission
of the photographs under FED. R. EVID. 403, the district
court admitted the photographs as relevant evidence to
establish the association between codefendants and their
propensity towards violence. The first photograph shows
that there is some type of relationship between Souffront
and Martinez and that they are familiar and at ease
with handguns. The second photograph indicates Colon,
Martinez, and Escobar were all criminals with possible
gang affiliation who had been incarcerated together, and
are identified as gunmen and supporters of the “Nation.”
7
Another photograph, which was not contested by defendants,
was of Colon wearing a belt buckle showing the initials ALKN,
for the “Almighty Latin King Nation.”
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 21
The photographs were therefore relevant and probative
of the allegations in the indictment.
Defendants renew their argument that the photographs
should have been excluded under Rule 403, which provides,
“Although relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” The court
must consider whether the probative value of the evidence
outweighs its prejudicial value. See Cook v. Hoppin, 783
F.2d 684, 689 (7th Cir. 1986). However, evidence of gang
membership has been admissible in cases where the
interplay between the people is central to proving the
elements of the conspiracy. See United States v. Thomas,
86 F.3d 647, 652 (7th Cir. 1996).
While it is true that all probative evidence is prejudicial
to the party against whom it is introduced, in this case
the prejudice was not unfair. See United States v. Adames,
56 F.3d 737, 742 (7th Cir. 1995). The photographs of the
defendants are not sufficiently shocking or repulsive to
necessarily elicit an emotional response from the jury. See
id.; see also United States v. Peters, 791 F.2d 1270, 1294
(7th Cir. 1986) (finding that evidence is unfairly prejudicial
if it arouses a sense of horror or produces an emotional
response that would cause the jury to base its decision on
something other than the evidence), superseded by statute
on other grounds as stated in United States v. Guerrero, 894
F.2d 261, 267 (7th Cir. 1990). Therefore, the district court
did not abuse its discretion by allowing the photographs
into evidence.
3. Apprendi claims
Defendants concede that, because they are challenging
the legality of the district court’s drug quantity determina-
22 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
tions for the first time on appeal, the standard of review
is for plain error. United States v. Nance, 236 F.3d 820,
824 (7th Cir. 2001). For an error to be plain, it must be
determined to have seriously affected the fairness, integ-
rity, or public reputation of the judicial proceedings.
Johnson v. United States, 520 U.S. 461, 467 (1997) (cita-
tions omitted). The applicability of Apprendi is a ques-
tion of law reviewed de novo. See Spiller, 261 F.3d at 692(citation omitted).
Defendants maintain Apprendi requires that the quan-
tity of drugs involved has to be charged in the indict-
ment and proved beyond a reasonable doubt. However, it
is well-recognized in both the Seventh Circuit and sister
circuits that “the Apprendi rule applies only to drug
quantities that permit a sentence in excess of the default
statutory maximum . . . .” Nance, 236 F.3d at 825; see
Apprendi, 530 U.S. at 490 (“Other than the fact of a
prior conviction, any fact that increases the penalty for
a crime beyond the statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable doubt.”).
The default statutory maximum for a conviction under
21 U.S.C. § 841 which involved cocaine, a Schedule II
controlled substance as per 21 U.S.C. § 812(c), is twenty
years. 21 U.S.C. § 841(b)(1)(C). The statutory maximum
for a CCE conviction is life imprisonment. 21 U.S.C.
§ 848(a). Colon was sentenced to life imprisonment under
the CCE count and 96 months concurrently on each of the
substantive drug violations. Martinez was sentenced to 400
months imprisonment based on the CCE count and 96
months concurrently on each of the substantive violations.
Souffront was sentenced to twenty years based on his
convictions for the conspiracy count and substantive
drug charges. Marisol was sentenced to ten years based
on her convictions for three violations, including the
conspiracy count. All defendants received sentences at
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 23
or below the maximum levels applicable to them. Even
under de novo review, there were no Apprendi violations.
Marisol argues that her mandatory minimum ten-year
sentence was not binding under Apprendi. However,
Apprendi does not apply to statutory mandatory minimum
sentences. See Harris v. United States, 536 U.S. 545, 568-
69 (2002).
4. Singleton claim
Based solely upon Singleton, 144 F.3d 1343, a vacated
case from the Tenth Circuit, defendants contend the
indictment should have been dismissed because cooperat-
ing witnesses Escobar, Herrera, and Santiago allegedly
testified in exchange for leniency, a violation of 18 U.S.C.
§ 201(c)(2).8 The decision in Singleton was immediately
stayed and soon after withdrawn. See United States v.
Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc). All
circuits except for the Federal Circuit9 have rejected
Singleton’s original holding. See United States v. Condon,
170 F.3d 687, 688 (7th Cir. 1999) (listing cases); see also
8
18 U.S.C. § 201(c)(2) states:
(2) directly or indirectly, gives, offers, or promises anything
of value to any person, for or because of the testimony under
oath or affirmation given or to be given by such person as
a witness upon a trial, hearing, or other proceeding, before
any court, any committee of either House or both Houses
of Congress, or any agency, commission, or officer authorized
by the laws of the United States to hear evidence or take
testimony, or for or because of such person’s absence there-
from; . . . .
9
The Federal Circuit has nationwide jurisdiction to hear ap-
peals in specialized cases such as those involving patent law or
cases decided by the Court of International Trade and the Court
of Federal Claims, and has never had occasion to address the
Singleton issue.
24 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
United States v. Lara, 181 F.3d 183, 198 (1st Cir. 1999);
United States v. Stephenson, 183 F.3d 110, 118 (2d Cir.
1999); United States v. Hunte, 193 F.3d 173, 174 (3d Cir.
1999); United States v. Richardson, 195 F.3d 192, 197 (4th
Cir. 1999); United States v. Smith, 196 F.3d 1034, 1038-39
(9th Cir. 1999). Defendants’ position is without merit and
we hope that future defendants will refrain from present-
ing such frivolous arguments supported by absolutely no
authority and contrary to clearly-stated precedent.
B. Colon’s Brief
Colon argues that: (1) his trial should have been severed
from that of his codefendants; (2) the district court relied
on inappropriate evidence during his sentencing hearing;
(3) jury instruction No. 13 was erroneously submitted; (4)
he was denied his constitutional right to a speedy trial;
and (5) the district court erred when it failed to instruct the
jury that it must unanimously agree on the acts which
constitute a CCE.
1. Severance
Colon filed a pretrial motion to have his trial severed
from that of his codefendants, which the district court
denied. Colon maintains that his trial should have been
severed because: (1) the statements of both Marisol and
Souffront were submitted into evidence but neither tes-
tified and were therefore not subject to cross-examina-
tion; (2) Marisol presented prejudicial evidence in con-
nection with her defense that she participated in the
conspiracy because she was under the “psychological
domination” of Colon; and (3) other codefendants presented
similar “mutually antagonistic” defenses, in that “the
appearance of one party’s defense preclude[d] the acquit-
tal of the other defendant.” United States v. Zafiro, 506
U.S. 534, 537 (1993) (citation omitted).
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 25
We review the denial of a motion to sever for an abuse
of discretion. United States v. Smith, 223 F.3d 554, 573
(7th Cir. 2000) (citation omitted). Multiple defendants may
be tried together “if they are alleged to have par-
ticipated . . . in the same series of acts or transactions,
constituting an offense or offenses.” FED. R. CRIM. P. 8(b). In
fact, “[t]here is a preference in the federal system for joint
trials of defendants who are indicted together. Joint
trials ‘play a vital role in the criminal justice system.’ They
promote efficiency and ‘serve the interests of justice
by avoiding the scandal and inequity of inconsistent ver-
dicts.’ ” Zafiro, 506 U.S. at 537 (quoting Richardson v.
Marsh, 481 U.S. 200, 209-10 (1987)). There is a particularly
strong preference for a single trial with codefendants
who have been jointly indicted. See United States v. Mc-
Clurge, 311 F.3d 866, 871 (7th Cir. 2002) (citation omitted).
However, “[i]f the joinder of offenses or defendants in
an indictment . . . or a consolidation for trial appears to
prejudice a defendant or the government, the court may
order separate trials of counts, sever the defendants’ trials,
or provide any other relief that justice requires.” FED. R.
CRIM. P. 14(a). In addition, “Rule 14 does not require
severance even if prejudice is shown; rather it leaves the
tailoring of the relief to be granted, if any, to the district
court’s sound discretion.” Zafiro, 506 U.S. at 538-39. When
defendants have been properly joined under Rule 8(b),
“a district court should grant a severance under Rule
14 only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment
about guilt or innocence.” Id. at 539. “A defendant must
demonstrate that the denial of severance caused him ‘actual
prejudice’ that deprived him of his right to a fair trial; it
is insufficient that separate trials would have given a
defendant a better opportunity for an acquittal.” United
States v. Rollins, 301 F.3d 511, 518 (7th Cir. 2002) (citations
omitted); see also Zafiro, 506 U.S. at 540.
26 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
a. Statements of nontestifying codefendants
In Bruton v. United States, the Supreme Court held
that a defendant’s Sixth Amendment right to confront
witnesses against him is violated when the confession of
a nontestifying codefendant, in which the defendant is
expressly implicated as a participant in the crime, is
admitted in the joint trial of the two defendants, even if
the jury is instructed to consider the confession only
against the confessing codefendant. 391 U.S. 123, 135-36
(1968). In Bruton, one of two jointly-tried defendants did
not testify but had admitted to committing armed robbery
and named the second defendant as his accomplice. Id.
at 124.
In Richardson, a joint trial of two defendants with the
third respondent a fugitive at the time of trial, the Court
held there was no Bruton violation where the nontestify-
ing codefendant’s statement was redacted to remove all
reference to the defendant and his existence and the jury
was given a proper limiting instruction. 481 U.S. at 202,
211. The redacted statement, unlike the defendant’s con-
fession in Bruton, was not incriminating because it did
not directly implicate the other defendant in the crime;
therefore, there was no Bruton violation. Id. at 208; United
States ex rel. Cole v. Lane, 752 F.2d 1210, 1216 (7th Cir.
1985).
In Gray v. Maryland, 523 U.S. 185 (1998), again a case
with only two defendants, the Court stated that even
though the redactions in the confession of the nontestify-
ing codefendant replaced the defendant’s name with a
deletion or blank space, a Bruton violation occurred be-
cause “the redacted confession with the blank prominent on
its face . . . ‘facially incriminat[es]’ the codefendant.” Id. at
196 (emphasis in original) (quoting Richardson, 481 U.S. at
209). However, we held that the substitution of a defen-
dant’s name with a neutral pronoun or phrase in a
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 27
codefendant’s confession which does not “strategically
incriminate much less implicate” the defendant does not
violate Bruton. Cole, 752 F.2d at 1216. In Cole, two defen-
dants were jointly tried for armed robbery. Witnesses
and one codefendant stated that three men participated
in the robbery. Id. The use of neutral pronouns in the
codefendant’s redacted statement, a statement which
did not specifically incriminate or implicate the other
defendant, does not violate the holding in Bruton. Id.; see
United States v. Hernandez, 330 F.3d 964, 973 (7th Cir.
2003) (“it is clear that a redacted confession may be admit-
ted as long as the redaction does not obviously refer to the
co-defendants”).
Marisol was interviewed by Agent Jolley on September
18, 1997, and signed a statement made of that interview.
That statement was read at trial. The only sentence in
Marisol’s statement referencing Colon was, “One person
directed the flow of money that members of the street gang
received from the sale of drugs.” There is no direct incrimi-
nation much less implication that this person was Colon,
particularly in light of the number of codefendants and
numerous references in Marisol’s statement concerning the
many gang members she worked with. The district court
instructed the jury that the statement was not admissible
against any defendant other than Marisol.
In Souffront’s initial statement to Officer Cusack and
Agent Jackson, he admitted he held a certain position
within the Latin Kings gang and that he dealt drugs for
them. He later made a second statement to Cusack and
Jackson, providing a list of Latin Kings members from
whom he had collected drug money and how much money
was collected. Both statements were read at trial. There
was no direct incrimination or implication of Colon. And
again, the district court offered a limiting instruction to the
jury.
28 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
There was no Bruton violation in either Marisol’s or
Souffront’s statements. Colon has incorrectly argued that
both codefendants’ statements “implicate” him. Colon
must show that the redacted statements “expressly,”
“facially,” or “directly” implicate him. Richardson, 481 U.S.
at 208 (citing Bruton, 481 U.S. at 124 n.1); Gray, 523 U.S.
at 196; Cole, 752 F.2d at 1216. He has failed to do so.
Even had there been a Bruton error, that error would
have been harmless. See Hernandez, 330 F.3d at 974 (citing
United States v. Hoover, 246 F.3d 1054, 1059-60 (7th Cir.
2001)). After a nine-week trial, the evidence of a narcotics
conspiracy was substantial. See id. The codefendants
basically convicted themselves with seventy hours of
recorded conversations. See Hoover, 246 F.3d at 1059-60.
Colon also maintains that these statements bolster the
testimony of other witnesses. The Supreme Court declined
to expand Bruton to include a statement which is not
incriminating on its face but becomes so when “linked” with
other evidence at trial. Richardson, 481 U.S. at 208-09. If
a proper limiting instruction is given to the jury, a re-
dacted statement which incriminates a defendant only
in conjunction with other evidence in the case does not
violate Bruton. Id.; Cole, 752 F.2d at 1216.
In addition, Colon contends, but makes no argument,
that “Martinez was implicated in the ‘hit’ on Souffront
and was not subject to cross-examination.” Colon provides
no facts to substantiate his inference that Martinez may
have been responsible for the hit. Evidence of the proposed
hit was introduced through the government tapes of Colon’s
conversations with Marisol and Martinez. Colon warned of
a possible hit on Souffront and instructed Marisol and
Martinez to stay away from him. These conversations were
admitted as an admission by a party and as statements by
a coconspirator. FED. R. EVID. 801(d)(2)(A) & (E). The
district court did not abuse its discretion in allowing any
of these statements into evidence.
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 29
b. Psychological domination evidence
Colon asserts a Bruton violation based on the testimony
of Dr. Teresa Risolo (“Dr. Risolo”), who was called at trial
by Marisol as an expert witness. Dr. Risolo, a clinical
psychologist who had interviewed, tested, and evaluated
Marisol, testified that Marisol was highly dependent on
Colon and would do anything for him. Dr. Risolo also
stated that Marisol had difficulty expressing disagreement,
was easily manipulated, and was unable to use critical
thinking. Marisol’s attorney then argued that she was
incapable of forming the intent to participate in and
promote the drug conspiracy. Colon maintains that, “[s]ince
Marisol Colon did not testify none of these matters were
subject to cross-examination.”
Prior to Dr. Risolo’s testimony, the district court in-
structed the jury:
I anticipate that during Dr. Risolo’s testimony she
will relate statements that were made to her by
Marisol Colon. I instruct you that those statements may
not be considered by you for the truth of the matters
asserted in them. I further instruct you that Dr.
Risolo’s testimony may not be considered by you
against any other defendant.
The district court repeated the instruction prior to jury
deliberations.
The majority of Dr. Risolo’s testimony dealt with
Marisol’s childhood and adolescence, which Dr. Risolo
stated were the basis of her dependent personality disor-
der. Her statements regarding Marisol and Colon were
extremely general, including the fact that Marisol met
and married Colon while he was incarcerated (with no
mention of his crime or term of imprisonment), that he
gave her money (with no mention of where the money
came from), that Colon showed warmth and kindness
towards Marisol, that Marisol had two children with him,
that Marisol knew of Colon’s infidelities, that Marisol did
30 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
not want to be a secretary for Colon, and that Marisol
had made general comments to Dr. Risolo about the value
of gangs. There is no basis for a Bruton violation because
there is no direct criminal implication of Colon in any
of these statements.
c. Mutually antagonistic defenses
The occurrence of mutually antagonistic defenses is
generally not sufficient grounds to require severance. See
United States v. Mietus, 237 F.3d 866, 873 (7th Cir. 2001)
(citing Zafiro, 506 U.S. at 538).
The courts have reversed relatively few convictions
for failure to grant a severance on grounds of mutually
antagonistic or irreconcilable defenses. . . . Mutually
antagonistic defenses are not prejudicial per se. . . .
[and] Rule 14 does not require severance even if prej-
udice is shown; rather, it leaves the tailoring of the
relief to be granted, if any, to the district court’s sound
discretion.
Zafiro, 506 U.S. at 538 (citations omitted).
When defendants have been properly joined, “a district
court should grant a severance under Rule 14 only if
there is a serious risk that a joint trial would compromise
a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or
innocence.” Zafiro, 506 U.S. at 539. A defendant must
demonstrate that the denial of severance caused him
“actual prejudice.” United States v. Lane, 474 U.S. 438, 449
(1986). “Actual prejudice” occurs when a defendant has
been deprived of his right to a fair trial; “it is insufficient
that separate trials would have given a defendant a
better opportunity for an acquittal.” Rollins, 301 F.3d at
518 (citations omitted); see also Zafiro, 506 U.S. at 540.
Defendant has not demonstrated any actual prejudice
requiring severance.
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 31
Even if the district court had erred in denying Colon’s
severance motion based on mutually antagonistic defenses,
the misjoinder of defendants is harmless error if the jury
was appropriately instructed to “give separate considera-
tion to each individual defendant and to each separate
charge against him.” Zafiro, 506 U.S. at 541. “In Lane, the
Supreme Court relied upon the presence of instructions
requiring the jury to consider each defendant separately,
the likelihood that evidence relating to the misjoined
count would have been admitted in a separate trial and
the strong evidence of the defendant’s guilt in concluding
that the misjoinder was harmless.” United States v. Diaz,
876 F.2d 1344, 1356 (7th Cir. 1989) (citing Lane, 474 U.S.
at 450). Proper jury instructions are “an adequate safe-
guard against the risk of prejudice in the form of jury
confusion, evidentiary spillover and cumulation of evi-
dence.” United States v. Alexander, 135 F.3d 470, 478 (7th
Cir. 1998) (internal quotations and citations omitted). The
district court provided the proper limiting jury instruc-
tions. The vast majority, if not all, of the evidence admit-
ted in the joint trial would have been admissible had Colon
been tried alone, and the evidence against Colon was
overwhelming. Defendant has failed to demonstrate
actual prejudice on this issue. The district court did not
abuse its discretion in denying the motion for severance
based on any of the arguments presented by Colon.
2. Inappropriate evidence during the sentencing hearing
Colon’s convictions10 in the instant case were for a CCE
violation under 21 U.S.C. § 848 (count 2), use of a tele-
10
Colon’s and Martinez’s convictions on count 1, for a drug
conspiracy in violation of 21 U.S.C. § 846, were vacated subse-
quent to a post-trial motion. The district court held that the
conspiracy convictions violated the double jeopardy clause because
Colon and Martinez were also convicted of count 2 for engaging
in a CCE.
32 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
phone to facilitate a drug felony in violation of 21 U.S.C.
§ 843(b) (counts 3-9, 13, 16), and distribution of cocaine
in violation of 21 U.S.C. § 841 (counts 10-12, 14, 15, 18-21).
For each count except the CCE, the district court calcu-
lated the base offense level at 36 because more than 50
kilograms of cocaine were involved in the conspiracy. See
U.S.S.G. § 2D1.1(c)(2) (“At least 50 KG but less than 150
KG of Cocaine”). The district court then added a two-
level enhancement for the involvement of a dangerous
weapon pursuant to § 2D1.1(b)(1) and a four-level enhance-
ment for Colon’s leadership role pursuant to § 3B1.1(a),
arriving at a final offense level of 42.
Colon argues that the three enhancements—for drug
quantity, use of a dangerous weapon, and a leadership
role—violated Apprendi. Colon also maintains that the
district court erred in placing his criminal history category
at level VI, that of a career offender.
a. Drug quantity
The district court’s calculation concerning the quantity
of drugs involved in an offense is a finding of fact which
will be reversed only for clear error. United States v. Hall,
109 F.3d 1227, 1233 (7th Cir. 1997). The finding will be
affirmed unless we are “left with the definite and firm
conviction that a mistake has been committed.” Id. (citation
omitted). Because the drug quantity table assigns a
base offense of 36 to narcotics-related conduct involving 50
to 150 kilograms of cocaine, see U.S.S.G. § 2D1.1(c)(2), we
must determine whether the evidence permits the at-
tribution of at least 50 kilograms of cocaine to Colon.
As the district court noted at sentencing, “I have no
doubt in my mind that this—this portion of Mr. Colon’s
life—this particular criminal conspiracy involved the
distribution of over, over 50 kilograms of cocaine.” Based
on the evidence that more than 44 kilograms were pur-
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 33
chased from Herrera, 5 kilograms from Llanos, more than
1 kilogram from Ginjuama, and the estimated street taxes
paid to Marisol during the 138 weeks of this particular
conspiracy, the district court made a conservative calcula-
tion and did not err in finding the conspiracy involved
more than 50 kilograms, thereby assigning Colon a base
offense level of 36.
Colon challenges the credibility of the witnesses as to
the quantity of drugs and contends their testimony should
not have been relied on under Apprendi. Apprendi does
not affect or alter calculations of relevant conduct or
other guideline determinations for sentences that fall
within the statutory maximum. See Talbot v. Indiana, 226
F.3d 866, 869 (7th Cir. 2000). In addition, credibility ques-
tions like these are for the trier of fact to resolve in all
but the most extraordinary circumstances. See Anderson
v. Bessemer City, 470 U.S. 564, 575 (1985); United States
v. House, 110 F.3d 1281, 1286 (7th Cir. 1997); see also
United States v. Noble, 246 F.3d 946, 953 (7th Cir. 2001)
(“we defer to the district court’s determination of witness
credibility, which can virtually never be clear error”). Colon
has not provided any valid reason why the district court
should have been precluded from crediting the witnesses
in making sentencing determinations. We find no
clear error in the district court’s drug quantity calculation.
b. Weapon enhancement
We review the court’s decision to impose a U.S.S.G.
§ 2D1.1 enhancement for clear error. United States v.
Watson, 189 F.3d 496, 501 (7th Cir. 1999). A weapon found
in “close proximity” to illegal drugs is presumptively
considered to have been used in connection with the drug
trafficking offense. United States v. Grimm, 170 F.3d 760,
767 (7th Cir. 1999). Once the government meets the initial
burden of demonstrating that the defendant “possessed
34 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
a weapon in a place where drugs were present,” the bur-
den shifts to the defendant to show that it was “clearly
improbable” that the weapon was connected with the
offense. Id.A two-level enhancement is imposed by § 2D1.1(b)(1) for
possession of a dangerous weapon, pursuant to Colon’s
convictions under 21 U.S.C. § 841. Not only was a gun
found in the apartment of Colon’s named regional street
boss and enforcer, but, as the court noted, Colon ordered
that “Souffront’s punishment [for the discovery of drugs
and a gun in his apartment] was to be shot.” Testimony
at trial revealed that weapons were carried and used for
disciplinary and security purposes as part of the con-
spiracy. The district court did not err in determining it
was reasonably foreseeable that Colon, as leader of the
drug conspiracy, knew guns were involved in maintaining
and enforcing the work of the conspiracy.
c. Leadership enhancement
A four-level enhancement was applied under U.S.S.G.
§ 3B1.1(a) as Colon was found to be an organizer or leader
of a conspiracy involving five or more participants, pursu-
ant to a conviction under 21 U.S.C. § 841. The sentencing
court’s application of § 3B1.1 is reviewed for clear error.
United States v. Gracia, 272 F.3d 866, 876 (7th Cir. 2001).
We will reverse only if there is a “definite and firm con-
viction” that a mistake has been made. Id. at 876 (citing
United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948)).
The jury was charged with the burden of determin-
ing Colon’s role in the conspiracy when given the instruc-
tion that they must “unanimously agree . . . that the
defendant you are then considering organized, supervised
or managed five or more persons within the same time
period charged in the indictment in committing the series
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 35
of offenses.” The overwhelming evidence indicated, as the
district court stated, that “every single witness treated
himself as a subordinate to Gino Colon” and “there was
unanimous agreement on his authority.”
Colon also argues that the leadership enhancement,
in conjunction with the CCE conviction, results in double-
counting in the calculation of his sentence. However, the
CCE calculation is imposed by § 2D1.5, excluding any
enhancement for a leadership role. See U.S.S.G. § 2D1.5,
cmt. n.1. There was no double-counting.
d. Prior convictions
Colon’s criminal history was calculated as category VI.
He was convicted of murder in 1971 and had served twenty-
five years of that sentence when he was released to the
U.S. Marshals Service in relation to the charges in the
current case. Colon argues that this sentence “likely”
violated Apprendi and is not applicable under U.S.S.G.
§ 4A1.2(e)(1) because the sentence for murder was im-
posed thirty-one years prior to the instant offense. Section
4A1.2(e)(1) specifically directs the court to “count any
prior sentence of imprisonment exceeding one year and
one month, whenever imposed, that resulted in the defen-
dant being incarcerated during [the fifteen years prior
to defendant’s commencement of the instant offense].” Colon
has misread the statute.
While incarcerated in 1989, Colon pled guilty to pos-
session of heroin with intent to deliver. Colon maintains
that the conviction cannot count because he was framed
and was not actually guilty, even though he pled guilty.
When a defendant pleads guilty, he may not later chal-
lenge that admission before the federal appellate court.
See United States v. Wallace, 280 F.3d 781, 784 (7th Cir.),
cert. denied, 536 U.S. 949 (2002).
36 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
Section 4B1.1 mandates that when the defendant is
at least eighteen years old at the time of conviction in the
current case, and the current conviction is a felony that
is either a crime of violence or a controlled substance
offense, and the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense, the criminal history is Category VI, that
of a career offender. Colon is over eighteen, his current
convictions are for controlled substance offenses, and he
has been convicted of two previous felonies, murder and
possession of heroin with intent to deliver. The district
court correctly placed him as a Category VI career offender.
e. CCE conviction
For the CCE count, U.S.S.G. § 2D1.5 imposes either a
base offense level of 38 or 4 plus the offense level required
by the drug quantity as determined in § 2D1.1, whichever
is the greater. Under § 2D1.1, level 36 was applied accord-
ing to drug quantity, then adding the two-level enhance-
ment for possession of a dangerous weapon, as mandated
by § 2D1.1(b)(2), arriving at a base offense level of 38.
Under § 2D1.5, the base offense level must then be 42 (38
plus 4), as the greater of 38 or 42 must be imposed. The
district court correctly calculated Colon’s base offense
level at 42 for the CCE count, with a criminal history
Category VI, allowing for a sentencing range of 360 months
to life.
3. Jury instruction No. 13
We review the instructions the district court gave to
the jury as a whole and reverse “only if the jury instruc-
tions viewed as a whole, misguide the jury to the litigant’s
prejudice.” United States v. Rodriguez-Andrade, 62 F.3d
948, 953 (7th Cir. 1995); see also Smith, 223 F.3d at 566. As
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 37
long as “the instructions treat the issues fairly and accu-
rately,” they will not be disturbed on appeal. United States
v. Thibodeaux, 758 F.2d 199, 202 (7th Cir. 1985) (internal
quotations and citation omitted).
Jury instruction No. 13 states:
You have heard evidence of acts of Gustavo Colon
other than those charged in the indictment. You may
consider this evidence only on the question of plan,
preparation and intent. The evidence is to be consid-
ered by you only for this limited purpose and may not
be considered against the other defendants.
Colon argues that this instruction encouraged the jury
to consider both his prior criminal history and the testi-
mony of Dr. Risolo.
Colon’s prior criminal history was allowed under FED. R.
EVID. 404(b) as evidence of other crimes, wrongs, or acts
“admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .” Limiting instruc-
tions are sufficient to cure potential prejudice resulting
from the admission of Rule 404(b) evidence. See United
States v. Asher, 178 F.3d 486, 495 (7th Cir. 1999) (citations
omitted). The district court properly weighed the Rule
404(b) factors and observed numerous safeguards to
reduce the possibility of unfair prejudice. See id. The
district court did not abuse its discretion in allowing the
404(b) evidence and did not err in using jury instruction
No. 13. As to Dr. Risolo’s testimony, Colon merely reiterates
his arguments about the confrontation clause and sever-
ance, which we have already dismissed as without merit.
4. Speedy trial
Colon argues that he was denied his right to a speedy
trial under the Sixth Amendment. The Sixth Amendment
38 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial.” U.S.
CONST. amend. VI. The Sixth Amendment right to a
speedy trial is triggered by an arrest, an indictment, or
some other type of official accusation. See Doggett v.
United States, 505 U.S. 647, 655 (1992); United States v.
Dote, 328 F.3d 919, 922 (7th Cir. 2003). A defendant’s trial
must “commence within seventy days from the filing
date . . . of the information or indictment, or from the date
the defendant has appeared before a judicial officer of the
court in which such charge is pending, whichever date
last occurs.” 18 U.S.C. § 3161(c)(1). A number of exclusions
may be invoked which do not count against the seventy
days. 18 U.S.C. § 3161(h).
The seventy days does not begin to run until all de-
fendants have been arraigned. United States v. Baker, 40
F.3d 154, 159 (7th Cir. 1999) (citing Henderson v. United
States, 476 U.S. 321, 323 n.2 (1986)). In addition, any
delays attributable to the filing and resolution of any
defendant’s pretrial motions are excluded from the
seventy days. 18 U.S.C. § 3161(h)(1)(F). Under § 3161(h)(7),
“the excludable delay of one defendant may be ascribed
to all codefendants in the same case, absent severance.”
Baker, 40 F.3d at 159 (citation omitted).
Colon was indicted on September 17, 1997, as one of
fourteen codefendants. Charlie Alejandro, a fugitive and
the final codefendant to be located, was arraigned on
January 15, 1998. On that date, the seventy-day clock
commenced. On that same day, Colon moved for addi-
tional time to file pretrial motions, stopping the clock. The
request was granted and the deadline for filing pretrial
motions was set for February 8. Colon subsequently
requested and was granted several additional extensions.
On March 20, 1998, Colon filed his pretrial motions and
a motion for a bill of particulars. On April 3, the govern-
ment responded. The district court ruled on the motions
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 39
on April 13. Consequently, this entire period was prop-
erly excluded from the speedy trial calculation. Colon’s
trial began on May 18, 1998, thirty-five days after the
April 13 resolution of his pretrial motions and motion for
a bill of particulars. Colon’s trial commenced within the
seventy-day period as required by 18 U.S.C. § 3161(c)(1).
See Baker, 40 F.3d at 159.
5. CCE jury instruction
Martinez joins Colon in correctly arguing that the dis-
trict court should have instructed the jury that they must
unanimously agree on which three or more drug viola-
tions constitute a CCE. See Richardson v. United States,
526 U.S. 813, 824 (1999). Defendants maintain this fail-
ure requires reversal of their CCE convictions. However,
at the time of defendants’ trial in 1998, Seventh Circuit
precedent did not require a CCE instruction. See United
States v. Jackson, 207 F.3d 910, 919 (7th Cir. 2000).
A CCE charge involves a “violat[ion]” of the drug stat-
utes where “such violation is a part of a continuing series
of violations.” 21 U.S.C. § 848(c). “[A] jury in a federal
criminal case brought under § 848 must unanimously
agree not only that the defendant committed some ‘continu-
ing series of violations’ but also that the defendant com-
mitted each of the individual ‘violations’ necessary to make
up that ‘continuing series.’ ” Richardson, 526 U.S. at 815.
In direct appeals from judgments of conviction in the
federal system, “[a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disre-
garded.” FED. R. CRIM. P. 52(a). For all constitutional errors,
except those limited fundamental errors which require
automatic reversal, i.e., those affecting substantial rights,
“reviewing courts must apply Rule 52(a)’s harmless-error
analysis and must disregard errors that are harmless
‘beyond a reasonable doubt.’ ” Neder v. United States, 527
40 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
U.S. 1, 7 (1999) (citing Chapman v. California, 386 U.S. 18,
24 (1967)). The failure to instruct the jury on an essential
element of a CCE is harmless error when “it appears
‘beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.’ ” Id. at 15
(quoting Chapman, 386 U.S. at 24).
Jackson is a similar case which involved the Gangster
Disciples, a street gang operating a widespread drug
distribution conspiracy in the Chicago suburbs. 207 F.3d
at 913. Twelve Gangster Disciples codefendants argued
their CCE convictions should have been reversed because
the district court did not give a CCE jury instruction. Id.
at 919. We found harmless error because the jury had
found the defendants guilty of “many more than three
predicate offenses relating to the drug conspiracy.” Id. The
same is true here. Colon and Martinez were named in a
series of substantive drug counts in the indictment. Aside
from the CCE conviction, Colon was convicted of nine
counts of using a telephone to facilitate a drug felony
and nine counts of distributing cocaine. Martinez, in
addition to the CCE conviction, was convicted of five
counts of using a telephone to facilitate a drug felony and
nine counts of distributing cocaine. The jury unanimously
found that both defendants had committed more than
three specific predicate offenses, which makes any error
in the jury instructions harmless. See Smith, 223 F.3d at
568; see also United States v. Hardin, 209 F.3d 652, 659 (7th
Cir. 2000) (finding harmless error in same circumstances).
“[W]here a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error, the
erroneous instruction is properly found to be harmless.”
Neder, 527 U.S. at 17.
Martinez additionally argues that his CCE conviction
should be reversed because his conviction for the predicate
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 41
drug offenses was based solely on coconspirator liability
under Pinkerton v. United States, 328 U.S. 640, 646-47
(1946), which holds that the acts of one person may be
attributed to another when there is a conspiracy. Pinkerton
has been regularly applied to drug conspiracies, primarily
through the use of what is known as the Pinkerton in-
struction. See Smith, 223 F.3d at 567. The Pinkerton
instruction, which was given in the instant case, states, “A
conspirator is responsible for the acts of any other mem-
ber of the conspiracy if he was a member of the conspiracy
when the act was committed, and if the act was commit-
ted in furtherance of or as a natural consequence of the
conspiracy.”
The court in Smith found that the question of whether
the actions of others were reasonably foreseeable to a
particular defendant is a factual one, and refused to reject
Pinkerton as a matter of law in a street gang, drug con-
spiracy case. 223 F.3d at 567. The case in Smith, like that
of Jackson, dealt with the Gangster Disciples street gang.
Id. at 560. The codefendants in Smith, like the codefen-
dants in the instant case, were charged with operation of
a drug conspiracy and operation of a CCE, in addition to
numerous drug-related charges, including the use of a
telephone to facilitate drug crimes. Id. at 560-61. Following
Smith, we also reject the argument that Pinkerton liabil-
ity is unavailable. In any case, Martinez was personally
involved in four of the drug distribution counts and five of
the telephone counts. His conviction on the CCE count
is affirmed.
C. Martinez’s Brief
Although Martinez stated in his “Summary of the Argu-
ments” section that there were “inappropriate additions
to the base offense level in violation of Apprendi used to
determine the criminal history category,” his arguments
42 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
all focus on the base offense level, not the computations of
the criminal history category. Because he has not de-
veloped any argument on the criminal history category, that
issue is waived. See United States v. Berkowitz, 927 F.2d
1376, 1384 (7th Cir. 1991).
Martinez objects to his sentence based on the same
issues as Colon, that there were Apprendi violations in
calculating the drug quantity, that the drug quantity
calculation was based on perjured testimony, and that
the district court erred in applying the use of a dan-
gerous weapon enhancement pursuant to U.S.S.G.
§ 2D1.1(b)(1) and a leadership role enhancement in the
conspiracy under § 3B1.1(a). Martinez’s convictions were
for a CCE in violation of 21 U.S.C. § 848 (count 2), use
of a telephone to facilitate a drug felony in violation of
21 U.S.C. § 843(b) (counts 6, 8, 9, 13), and distribution of
cocaine in violation of 21 U.S.C. § 841 (counts 10-12, 14, 15,
18-21).
Although the district court had determined the amount
of drugs involved in the conspiracy was more than 50
kilograms, the judge acknowledged that there was a
transaction between Colon and Escobar for five kilo-
grams “that Colon explicitly kept Mr. Martinez out of.”
Therefore, the court set the base offense level for Martinez
at 34, for an amount less than 50 kilograms. See U.S.S.G.
§ 2D1.1(c)(3) (“At least 15 KG but less than 50 KG of
Cocaine”). For each count except the CCE, the district
court calculated the base offense level at 34 because less
than 50 kilograms of cocaine were involved. U.S.S.G.
§ 2D1.1(c)(2). As we previously discussed, Apprendi does
not affect the calculation of sentences that fall within
the statutory maximum. See Talbot, 226 F.3d at 869.
The district court then added a two-level enhancement
for the involvement of a dangerous weapon. The judge
stated that the evidence showed that guns “would be used
Nos. 00-2837, 00-3017, 00-3070, and 00-3514 43
to enforce gang discipline, to facilitate the sale of drugs,”
and “it is, frankly, not conceivable to me that [Martinez]
would have believed that he could exercise his, his [sic]
duties as a regional head of the north side without his
subordinates using guns or threatening to use guns.” The
judge also took note of Martinez’s personal history, which
“shows repeated use of guns on an illegal basis.” This
last statement was due in part to Martinez’s criminal
history. He had been convicted of aggravated battery in
1991 when he was involved in a shootout with a rival gang.
He was charged with murder in 1987 but pled guilty to
voluntary manslaughter with the use of a gun. In 1997, he
pled down from felony armed robbery to misdemeanor
robbery. In addition, during the search of Martinez’s home,
agents recovered an empty gun box and ammunition.
Escobar stated that he frequently saw both Souffront and
Martinez with weapons. There are numerous discussions
on the tape-recordings between Colon, Marisol, Escobar,
and Martinez about the use of violence and shootings to
protect territory, to enforce the collection of drug debts
and street taxes, and in disciplining gang members. The
district court did not err in applying the dangerous weap-
on enhancement.
The district court determined that, given the fact that
Colon was clearly the leader, Martinez was a manager
or supervisor in a conspiracy of five or more participants.
The testimony at trial showed that Colon replaced Souffront
with Martinez as regional boss. Escobar testified that
after the search of Souffront’s apartment, Escobar was
told by Martinez that Martinez was now the boss. On one
tape, Colon told Marisol, “I want everybody to go through
[Martinez]. . . . and that’s it.” A three-level enhancement
for Martinez’s leadership role was added. See U.S.S.G.
§ 3B1.1(b). The court carefully followed the dictates of
the sentencing guidelines in calculating Martinez’s base
offense level for the non-CCE counts at 39. There was
no error.
44 Nos. 00-2837, 00-3017, 00-3070, and 00-3514
For the CCE count, the court again began with a base
offense level of 34 and added the two-level enhancement
for possession of a dangerous weapon, arriving at an of-
fense level of 36. The base offense level for a CCE under
§ 2D1.5 must be 38 or 4 plus the calculated offense level,
which is 36 for Martinez. The district court correctly
computed Martinez’s base offense level at 40, as required
by the guidelines. There was no error.
Martinez also argues the enhancement for a manager/
supervisor, in addition to the CCE conviction, results in
double-counting. As we previously noted, the district
court followed the mandates of the sentencing guide-
lines, and there was no double-counting.
III. CONCLUSION
We find no merit in any of the arguments raised by
any of the defendants. For the reasons stated, we AFFIRM
the convictions and sentences of all four defendants.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-6-03