United States v. Robert Nieto

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-2209 & 19-3408
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT NIETO and DARRICK P. VALLODOLID,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:15-cr-00072 — Philip P. Simon, Judge.
____________________
ARGUED SEPTEMBER 13, 2021 — DECIDED MARCH 28, 2022
____________________
Before RIPPLE, ROVNER, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Robert Nieto and Darrick Vallod-
olid once led chapters of the Latin Kings gang in northwest
Indiana. Both received life sentences following a jury trial re-
sulting in convictions for violating federal racketeering and
narcotics laws, with the jury also finding that Nieto and Val-
lodolid participated in murders to further the gang’s activi-
ties. Nieto and Vallodolid raise a host of issues on appeal,
ranging from a contention that the prosecution committed a
2 Nos. 19-2209 & 19-3408
Batson violation by striking two prospective Hispanic jurors
from the venire, to challenges to the sufficiency of the evi-
dence and to aspects of their sentencing. We see no errors and
affirm.
I
A federal investigation of the Latin Kings in Chicago and
northwest Indiana uncovered evidence of the gang’s wide-
spread drug trafficking and violence, including several mur-
ders. In time a grand jury charged multiple members with
participating in racketeering and narcotics conspiracies from
2003 through 2017. Of the many individuals indicted, most
pled guilty. The two defendants before us on appeal, Nieto
and Vallodolid, chose to go to trial in May 2018.
The jury heard considerable evidence about the Latin
Kings’ organizational structure at the national, regional, and
local levels. Suffice it to say that the gang organized itself like
a corporation, with roles and responsibilities assigned to var-
ious members—all to further the gang’s unity of purpose, in-
cluding its lucrative and expansive drug trafficking activities.
The trial evidence showed that Nieto and Vallodolid held
leadership positions in the northwest Indiana chapters of the
Latin Kings. Nieto joined the Kings in 1986 and founded the
gang’s chapter in Gary. For several years, he served as “Inca,”
the chapter’s highest leadership role. After a period of incar-
ceration from 2001 to 2007, Nieto returned to holding leader-
ship positions through at least 2013. At one point, he served
as the King’s regional Enforcer—a position, as its name im-
plies, in which Nieto enlisted other members to impose disci-
pline on Kings who stepped out of line by violating one or
another of the gang’s rules. For his part, Vallodolid belonged
Nos. 19-2209 & 19-3408 3
to the 148th Street Indiana Latin Kings chapter from 2008 until
at least 2012. Like Nieto, Vallodolid held various leadership
positions, including for a time as Inca in the chapter in Ham-
mond.
The trial also focused on the Latin Kings’ drug business in
northwest Indiana. For now all we need to say is that the busi-
ness was substantial, profitable, and conducted with sophisti-
cation and persistence. The Kings had a stable stream of reli-
able suppliers of large quantities of marijuana and cocaine. At
other times, the gang would acquire drugs by robbing rivals
on the streets. The evidence showed that Nieto and Vallodolid
were meaningful and active players in the gang’s drug trade.
The government also presented evidence of the violence
that accompanied the affairs of the Latin Kings. By way of ex-
ample, witnesses testified that initiation into the Kings
brought with it violence, with new members having to endure
beatings. Harsh physical discipline also befell a King who vi-
olated the gang’s rules or made a costly mistake like losing a
gun. Gang members further testified that individual chapters
would respond to interference by or unwanted competition
from rival gangs with targeted shootings or other acts of vio-
lence.
The trial focused on two specific murders—one from 2009
and another from 2013:
The 2009 murder of Victor Lusinski. While riding his bicycle
along a Hammond alleyway in the spring of 2009, 16-year-old
Victor Lusinski was shot in the head at point-blank range with
a .22-caliber gun. The physical evidence recovered by the po-
lice was thin, but witnesses, including many Kings, testified
that Vallodolid had bragged about his role in the murder.
4 Nos. 19-2209 & 19-3408
Keith Manuel, for example, testified that he heard Vallodolid,
a fellow King, boast about using a .22-caliber revolver to shoot
a kid on a bike that he believed was a member of a rival gang.
Manuel recalled Vallodolid saying that he “took care” of gang
business.
The 2013 murder of Rolando Correa. On December 2, 2013, a
group of five men—including Nieto and at least one other
man affiliated with the Latin Kings—planned and executed a
drug robbery at the home of Anthony Martinez, who they sus-
pected had ties to a rival organization. The jury learned that
on the night of the robbery, Nieto stayed home and played the
role of a lookout by listening to a police scanner while four
others forced their way into Martinez’s home to steal a drug
stash. A fight ensued and ended with Rolando Correa, a
neighbor who had gone to Martinez’s house to deter the rob-
bers, being shot and killed. After the murder, Nieto admitted
to his role in the robbery and told investigators that he knew
the hit had “something to do with gang bang” to protect Latin
King territory from a rival competitor.
After an 11-day trial, a jury convicted Nieto and Vallodolid
on both the RICO (18 U.S.C. § 1962(d)) and drug conspiracy
(21 U.S.C. § 846) counts. In returning this verdict, the jury
made four special findings—that Vallodolid participated in
the 2009 murder of Victor Lusinski, that Nieto played a role
in the 2013 murder of Rolando Correa, and that each defend-
ant was responsible for distributing more than five kilograms
of cocaine and 100 kilograms of marijuana. In the end, and
relying on the jury’s special findings, the district court sen-
tenced both Nieto and Vallodolid to life—the maximum pen-
alty available under 18 U.S.C. § 1963(a).
Nos. 19-2209 & 19-3408 5
Nieto and Vallodolid now appeal their convictions and
sentences.
II
A
We begin with Nieto’s and Vallodolid’s challenge to the
district court’s denial of their Batson motion. They claim the
government violated the equal protection-based rule an-
nounced in Batson v. Kentucky, 476 U.S. 79, 85–86 (1986), in-
cluding its inherent fair cross-section requirement, by exercis-
ing peremptory strikes to remove nearly all Hispanic mem-
bers from the venire.
Here is what happened during jury selection: Both de-
fendants are Hispanic, and the venire included five Hispanics.
One of those five (Ms. Mariscal) ultimately sat as a juror. The
government used peremptory strikes against three of the oth-
ers—Mr. Acosta, Ms. Gonzalez, and Mr. Garcia. Nieto and
Vallodolid objected, claiming that the government struck Ms.
Gonzalez and Mr. Garcia based on their ethnicity. The prose-
cutors disagreed, explaining that their strikes reflected the
“disdain” and “distaste and dismay” Ms. Gonzalez and Mr.
Garcia expressed for the government during jury selection.
As to Ms. Gonzalez, the government stated that the disap-
proval she expressed of the government’s immigration poli-
cies could affect her impartiality. What concerned the govern-
ment was Ms. Gonzalez confirming her own “preconceived
attitudes about the American legal system and the courts or
lawyers,” including that she was upset with many govern-
ment actions taken as to “immigration, mental health …
knowing that I have family or relatives that may have gone
through certain things.” The government explained that even
6 Nos. 19-2209 & 19-3408
though Ms. Gonzalez swore she could set aside those views,
it struck her from the venire out of concern that her displeas-
ure with national immigration policy could spill over and
prejudice her or the broader jury against the United States and
its prosecutors.
The government voiced a similar concern with Mr. Garcia.
It noted that he had expressed contempt for police and courts
by saying that “the justice system is flawed and biased against
people who don’t have means.” Even more, the government
continued, Mr. Garcia admitted that he had preconceived no-
tions about the criminal justice system but “suppose[d]” he
could listen to the evidence of the case and decide the case
based on the law. The prosecutors heard these answers as in-
dicative of an anti-government bias and therefore exercised a
peremptory strike against Mr. Garcia.
In assessing Nieto’s and Vallodolid’s objections, the dis-
trict court employed the familiar three-step framework from
in Batson and its progeny. See Miller-El v. Cockrell, 537 U.S.
322, 328–29 (2003) (citing Batson, 476 U.S. at 96–98). At step
one, the defendant must present a prima facie case that eth-
nicity motivated the peremptory strike in question. At step
two, the government must respond with an ethnicity-neutral
reason for the strike. If the government does so, step three re-
quires the court to determine whether the defendant has car-
ried the burden of showing that the government engaged in
purposeful discrimination. See id.Applying this framework, the district court found the gov-
ernment’s ethnicity-neutral justifications as “entirely believa-
ble and acceptable” and therefore rejected Nieto and Vallod-
olid’s Batson challenge.
Nos. 19-2209 & 19-3408 7
B
We see no error in the findings underpinning the district
court’s Batson ruling. See United States v. Cruse, 805 F.3d 795,
806 (7th Cir. 2015) (“We review the district court's Batson find-
ings for clear error.”).
Because the government offered neutral justifications for
the challenged strikes, the Batson step-one question whether
Nieto and Vallodolid presented a prima facie case of imper-
missible discrimination is moot. See Hernandez v. New York,
500 U.S. 352, 359 (1991) (“Once a prosecutor has offered a race-
neutral explanation for the peremptory challenges and the
trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defend-
ant had made a prima facie showing becomes moot.”).
Turning to Batson’s second prong, Nieto and Vallodolid ar-
gue that the government’s proffered reason for striking Ms.
Gonzalez—because her disagreement with U.S. immigration
policy reflected anti-government bias—was not neutral. They
claim that because Ms. Gonzalez’s views on immigration
were the product of her experience as a Hispanic woman, the
government’s justification necessarily rooted itself in her eth-
nicity. We are not persuaded.
The district court committed no clear error in finding that
the government’s reason for striking Ms. Gonzalez was not
“expressly predicated on her ethnicity.” Rather, the govern-
ment struck Ms. Gonzalez because of its concern that her dis-
agreement with U.S. immigration policy would result in bias
against the government at trial. And so, too, did the district
court reasonably conclude that the government would have
struck a non-Hispanic prospective juror that expressed the
8 Nos. 19-2209 & 19-3408
same policy views. Disagreeing with U.S. immigration policy,
in short, is not dependent on ethnicity.
We reach the same conclusion when considering the gov-
ernment’s strike of Mr. Garcia. When asked if he had views of
the criminal justice system, he said yes, explaining that he saw
the system as biased against people of lesser means. Nothing
about that explanation, the district court rightly concluded,
rooted itself exclusively in Mr. Garcia’s Hispanic heritage.
Moving to Batson’s third step, we see no error there either.
In attempting to show purposeful discrimination, Nieto and
Vallodolid contended that (1) the government’s peremptory
strikes removed 60% of the prospective Hispanic jurors but
only 11% of the prospective non-Hispanic jurors, (2) its justi-
fications disparately impacted Hispanic individuals, and (3)
it did not use peremptory strikes on similarly situated non-
Hispanic individuals. The district court reasonably found that
each contention fell short.
Although the government struck a greater proportion of
Hispanic than non-Hispanic prospective jurors, the statistical
disparity alone is not enough in these circumstances to show
purposeful discrimination at Batson’s third step. Our prior
cases have cautioned against finding intentional discrimina-
tion from statistical analysis rooted in a small data set. See,
e.g., Bennett v. Gaetz, 592 F.3d 786, 791 (7th Cir. 2010) (deter-
mining that although the government struck two of five Afri-
can American prospective jurors, “the relatively small num-
bers of African American prospective jurors and peremptory
challenges” made it difficult to draw any inferences of dis-
crimination). Striking only three of five Hispanic jurors here—
a small number to begin with—similarly makes it “difficult to
draw significance from th[e] disparity.” Id. The district court
Nos. 19-2209 & 19-3408 9
committed no error in declining at step three to find purpose-
ful discrimination from the statistical disparity urged by the
defendants. Compare Miller-El, 537 U.S. at 342 (holding that
the government’s exclusion of 10 out of 14, or 91%, of Black
prospective jurors—along with the state’s unreliable justifica-
tions—showed purposeful discrimination).
We also reject Nieto’s and Vallodolid’s argument that the
disparate effect of the government’s peremptory strikes on
prospective Hispanic jurors shows purposeful discrimina-
tion. Nobody questions that Ms. Gonzalez’s experience as a
Hispanic woman influenced her views on immigration pol-
icy, at least at some level. And perhaps Mr. Garcia’s experi-
ence as a Hispanic man affected his views toward the criminal
justice system. At step three of the Batson inquiry, however,
the Supreme Court has observed that disparate impact alone
cannot be enough to show intentional government discrimi-
nation. See Hernandez, 500 U.S. at 361 (explaining that “dis-
proportionate impact does not turn the prosecutor’s actions
into a per se violation of the Equal Protection Clause”). The
district court’s acceptance of the government’s ethnicity-neu-
tral explanation resulted in a finding of no intentional dis-
crimination. We see no clear error in the district court’s factual
analysis.
Finally, Nieto and Vallodolid more generally insist that the
government engaged in discrimination by not exercising per-
emptory strikes against non-Hispanic members who had ex-
pressed anti-government bias during jury selection. The
premise does not hold: the voir dire transcript shows many
prospective jurors discussing their experiences with the crim-
inal justice system, but we see not a single instance of a non-
Hispanic individual expressing anti-government bias—at
10 Nos. 19-2209 & 19-3408
least not to any degree close to what the district court heard
from Ms. Gonzalez and Mr. Garcia. Like the district court, we
do not see differential treatment between Hispanic and other
members of the venire.
In all, the district court took great care in handling and re-
solving the defendants’ Batson challenge. The court applied
the correct legal standards, reasonably accepted the govern-
ment’s ethnicity-neutral justifications, and adequately sup-
ported its finding of no intentional government discrimina-
tion. We will not upset the district court’s ruling.
III
We turn next to Nieto’s and Vallodolid’s challenges to the
sufficiency of the trial evidence. Our review is highly deferen-
tial, as the law affords great respect to a jury’s weighing and
assessment of the evidence. See Jackson v. Virginia, 443 U.S.
307, 318–19 (1979). “[W]e review the evidence in the light
most favorable to the Government and will overturn a verdict
only when the record contains no evidence, regardless of how
it is weighed, from which the jury could have found guilt be-
yond a reasonable doubt.” United States v. Norwood, 982 F.3d
1032, 1039 (7th Cir. 2020).
And where, as here with Nieto, a defendant invokes Fed-
eral Rule of Criminal Procedure 29 and moves for a judgment
of acquittal at the close of the government’s case but fails to
renew that motion following an adverse verdict at the end of
the trial, we extend even greater deference to the jury’s ulti-
mate determination of guilt. See id. In these circumstances, we
will upset the jury’s verdict only upon Nieto showing that
leaving the conviction in place would amount to a “manifest
miscarriage of justice.” Id.Nos. 19-2209 & 19-3408 11
A
We begin with Vallodolid’s challenge to the sufficiency of
the evidence for his involvement in the 2009 murder of Victor
Lusinski.
Vallodolid first challenges various witness testimony. For
starters, he claims the testimony of co-conspirators, including
Josh Roberts and Keith Manuel, was too unreliable to sustain
a conviction for murder. The jury could have found other-
wise, though.
Josh Roberts testified that on the day of the Lusinski mur-
der, Vallodolid called him to ask for help disassembling a .22-
caliber revolver—the same type of weapon used to kill Lusin-
ski. Keith Manuel corroborated Roberts’s account by explain-
ing that Vallodolid told him he had shot a kid and then took
the gun to Roberts’s house afterward. Roberts also testified,
as did other gang members, that Vallodolid had bragged to
him about shooting a kid on a bike who wore his hat in the
style of a rival gang. After the murder, Vallodolid even began
referring to himself as “deuce”—an apparent reference to the
weapon (the .22) used to shoot Lusinski.
Vallodolid further claims the testimony of eyewitnesses to
the Lusinski murder proves he could not have been the killer.
On the day of the Lusinski murder, Vallodolid underscores,
four eyewitnesses to the shooting—all 10- or 11-year-old
boys—reported that the shooter was Black. Vallodolid sees
this testimony as exonerating because he has light skin.
But Vallodolid fails to account for the evidence that called
into question the accuracy of the eyewitnesses’ accounts. The
witnesses saw the shooting from across the street—a point
they acknowledged in their trial testimony. Even more, the
12 Nos. 19-2209 & 19-3408
witnesses confused other important details, including the di-
rection from which the shooter came and later escaped to,
how many people were with the shooter, whether Lusinski
was on a bicycle, and the distance from which the shooter
killed Lusinski.
In short, the district court reasonably observed that the
eyewitness testimony “was riddled with inconsistencies, and
[the jury] was entitled to either credit or discredit it.” And un-
less a witness provides testimony that would have been phys-
ically impossible for them to see or “impossible under the
laws of nature”—which did not happen here—the jury makes
the ultimate credibility determinations. See United States v. Al-
cantar, 83 F.3d 185, 189 (7th Cir. 1996). On this record, we owe
respect to the jury’s credibility determinations.
Vallodolid argues that the lack of physical and forensic ev-
idence tying him to the crime also helps establish his insuffi-
ciency claim. But the law is clear that a circumstantial case can
be enough. See United States v. Garcia, 754 F.3d 460, 470 (7th
Cir. 2014); United States v. Ray, 238 F.3d 828, 833–34 (7th Cir.
2001). And considered altogether, the record provided a suf-
ficient basis for the jury to conclude that Vallodolid murdered
Lusinski to help defend Latin King territory.
B
That brings us to Nieto’s challenge to his conviction for the
2013 murder of Rolando Correa. We conclude here, too, that a
rational jury could have found beyond a reasonable doubt
that Nieto shouldered responsibility for Correa’s murder.
Nieto does not contest the jury’s finding that he partici-
pated in the offense. He instead claims that the evidence did
not show that the robbery and murder bore any connection to
Nos. 19-2209 & 19-3408 13
the affairs of the alleged RICO enterprise, the Gary, Indiana
Latin Kings. Indeed, Nieto contends that the evidence demon-
strated that he was no longer even affiliated with the Kings at
the time of the Correa robbery and murder. And of the four
men who committed the robbery, he adds, only Bruce Hendry
was a Latin King. The other two participants, Nieto urges,
were unaffiliated with the gang. On this score, Nieto points to
the testimony of Mark Cherry, a member of the Black P.
Stones gang, who told the jury that the Correa robbery had no
connection to the Latin Kings.
But our review shows that the evidence was not that one-
sided. To the contrary, the government presented ample
proof that the robbery and Correa murder related to and fur-
thered the activities of the northwest Indiana Latin Kings. Per-
haps most damaging to Nieto’s contention is a statement he
made to the FBI following the murder: he admitted that he
and others planned the robbery at Martinez’s house to protect
Latin King territory from a rival gang, the Latin Dragons. To
put the point in Nieto’s own words, he believed the robbery
“was something to do with a gang bang” because “[t]here was
a Dragon moved in the hood.”
The jury also heard testimony that Nieto, while leading
the Kings’ Gary chapter, had arranged drug-related rob-
beries. This testimony, combined with the other evidence, was
enough for the jury to find that Nieto planned and partici-
pated in both the robbery and Correa murder. When he
learned that Martinez’s house was full of marijuana, Nieto
called fellow gang member Bruce Hendry to help execute a
robbery, just as Kings had done in the past. The duo then en-
listed Mark Cherry’s help with the job. To be sure, Cherry tes-
tified that he was a member of the Stones gang, not the Latin
14 Nos. 19-2209 & 19-3408
Kings. But the jury was entitled to credit evidence that the
Latin Kings and the Stones were both part of an alliance of
gangs called the People Nation and thus that the robbery and
murder furthered the activities of the Kings, at least to some
extent.
We see no merit to Nieto’s contention that the district court
improperly admitted certain testimonial evidence relating to
the robbery and Correa murder. He argues, for example, that
the district court should have excluded Mark Cherry’s testi-
mony because it was conditional co-conspirator evidence un-
supported by the record. See United States v. Davis, 845 F.3d
282, 286 (7th Cir. 2016) (allowing the government to present
co-conspirator statements so long as there is sufficient evi-
dence showing a conspiracy, that the defendant and the de-
clarant were part of the conspiracy, and that the proffered
statement was made in furtherance of the conspiracy).
We see the evidence another way, however. In the testi-
mony at issue, Cherry told the jury about a conversation he
had with Nieto and Hendry leading up to the robbery and
murder. He testified that just before the December 2 robbery,
Nieto and Hendry planned the job, including by discussing
how much money and marijuana to expect in Martinez’s
house. There was no abuse of discretion in admitting Cherry’s
testimony. That evidence, and, in the end, the remainder of
the trial evidence was sufficient to support Cherry’s testi-
mony and the jury could rely on it in reaching its special ver-
dict as to the Correa murder.
Nor do we see any error in the district court’s admission
of Arturo Lizardi’s testimony. Lizardi told the jury that on the
day of the robbery, Martinez had told him and Nieto’s step-
son, Erik Brink, that there was a lot of marijuana in his house.
Nos. 19-2209 & 19-3408 15
The government used that testimony to show that Nieto
learned about Martinez’s marijuana stash from his stepson
and from there planned the robbery. The district court admit-
ted Martinez’s statement not for its truth, but for its effect on
Brink—to show that Brink had reason to believe Martinez had
a sizeable marijuana stash.
On the stand, Lizardi testified that Brink stood only a few
feet away from him when Martinez referenced the amount of
marijuana in his house, and that he believed Brink had been
listening. The testimony that Brink was nearby and listening
allowed a finding that the statement, regardless of its truth,
had an effect on Brink. And Nieto did nothing to impeach this
testimony. In these circumstances, we see no abuse of discre-
tion in the admission of Lizardi’s testimony. This testimony
only added to the basis on which the jury could have con-
cluded the Martinez robbery and Correa murder were con-
nected to the affairs of the Latin Kings.
All of this evidence, considered collectively, supported the
jury’s special finding that Nieto participated in the drug rob-
bery and the related murder of Mr. Correa to further the af-
fairs of the Latin Kings.
C
We likewise reject Nieto and Vallodolid’s challenge to the
sufficiency of the evidence supporting the drug conspiracy
conviction under 21 U.S.C. § 846.
To prove the alleged conspiracy, the government had to
show that two or more people agreed to distribute narcotics
and that the defendant in question knowingly and intention-
ally joined in the agreement. See United States v. Maldonado,
893 F.3d 480, 484 (7th Cir. 2018). It is also essential that the
16 Nos. 19-2209 & 19-3408
government prove the existence of a distinct agreement to dis-
tribute drugs and not just mere buying and selling. See id.Nieto and Vallodolid posit that the government’s circum-
stantial evidence fell short because “it cannot be said that the
members acted in concert to further each other’s drug distri-
bution effort.” The record shows otherwise.
As for the existence of an agreement to distribute cocaine
and marijuana, we start with the observation that Nieto and
Vallodolid were members and leaders of Latin Kings chap-
ters. That fact alone makes conspiracy more likely. See United
States v. Alviar, 573 F.3d 526, 537 (7th Cir. 2009) (“The fact that
[the defendants] were bound together by their gang member-
ship made it more likely that they participated in a conspir-
acy.”). But the government also presented more specific evi-
dence—most of which came from Nieto’s and Vallodolid’s fel-
low gang members—showing the Latin Kings, including both
defendants here, profited from drug distribution.
For example, Indiana Latin King Alexander Vargas testi-
fied that for almost a decade he received substantial amounts
of cocaine—up to a half a kilogram a week—from gang supe-
riors that he would then sell or front to other Latin Kings in
Indiana. He also explained that sometimes drugs were given
to King chapters to help with gang fundraising and that he
sold drugs so that his local chapter could “keep up” finan-
cially with rivals. The practice of sending drugs down the
chain of command to benefit the organization, Vargas ex-
plained, was commonplace for the Kings.
Several other witnesses, including Latin Kings members,
similarly described how individual members or regions of the
gang would receive substantial quantities of drugs from
Nos. 19-2209 & 19-3408 17
superiors to then sell or front to other members. Keith Ma-
nuel, for instance, testified that one leader, Hector Pelon, pro-
vided Latin Kings, including Vallodolid, with cocaine and
marijuana once or twice a week for many years. All this evi-
dence, we think, could lead a reasonable jury to find that the
Latin Kings had a common goal of distributing narcotics for
the benefit of the organization.
Next, we look to the second prong of the statute and assess
whether the jury could have properly concluded that Nieto
and Vallodolid knowingly participated in the conspiracy.
Here too we have no doubt a rational jury could have found
as much.
The government presented evidence that Nieto received
drugs through a chain of Latin King leaders. On this score,
consider the testimony of Alexander Vargas. He testified to
selling drugs to another Latin King who, in turn, sold to
Nieto. And the jury also heard the testimony of several wit-
nesses who stated that, more than once, they had purchased
drugs from Nieto and had seen him sell to others. Jason
Brown, for example, told the jury that as a Latin King, he reg-
ularly bought marijuana from Nieto and saw him “move[ ]
pounds” of drugs at a time. Another Latin King, Raphael Can-
cel, testified that he got “maybe about a half—maybe a kilo”
of cocaine from Nieto and that he had seen him in possession
of significant weights of the drug. And former Latin King Jose
Sanchez offered similar testimony. And Joshua Roberts—yet
another Latin King—testified that Nieto often gave him and
other Kings cocaine over the course of five years.
All of this evidence was enough to lead a reasonable juror
to the conclusion that Nieto’s drug business was, in fact, part
of the larger Latin Kings’ drug distribution conspiracy.
18 Nos. 19-2209 & 19-3408
Likewise with Vallodolid. For his part, Keith Manuel tes-
tified (like several other witnesses) that he saw Vallodolid sell
at least four kilograms of cocaine that he received from Latin
Kings leader, Hector Pelon. Joshua Roberts similarly testified
that Vallodolid “was getting [marijuana] from another Latin
King” to, in turn, provide to other members. Even Vallodolid
himself admitted that he “purchased drugs from an ILK [In-
diana Latin King] and sold drugs to other ILKs.” Based on the
evidence of receiving drugs from gang members and selling
to both Kings and non-Kings, a reasonable juror could have
concluded Vallodolid, like Nieto, played a role in the drug
distribution chain of the Latin Kings organization.
Much of the same evidence supports the jury’s determina-
tion that, over the lifetime of the decade-long conspiracy,
Nieto and Vallodolid were responsible for the requisite
amount of drugs to justify an increased sentence. Recall that
the jury determined that both Nieto and Vallodolid were
guilty of participating in a RICO conspiracy, in violation of 18
U.S.C. § 1962(d). The provision ordinarily carries a maximum
sentence of twenty years. See 18 U.S.C. § 1963(a). But Con-
gress created an exception to that maximum where “the vio-
lation [of § 1962(d)] is based on a racketeering activity for
which the maximum penalty includes life imprisonment.” Id.
That is what happened here.
Under § 1963(a), the jury could (and did) find each defend-
ant was eligible for a life sentence if each defendant conspired
to distribute or possess with intent to distribute at least 5 kil-
ograms of cocaine or 100 kilograms of marijuana—an offense
that qualifies as “racketeering activity” (see 18 U.S.C.
§ 1961(1)(D)) and that is itself eligible for a life sentence (see
21 U.S.C. § 841(b)(1)(A)).
Nos. 19-2209 & 19-3408 19
We begin with Nieto. Again, several witnesses testified
that they regularly purchased drugs from Nieto for individ-
ual use. But beyond those frequent but small amounts, wit-
nesses like Jose Sanchez and Raphael Cancel testified that
Nieto sold four or five ounces of cocaine a week during a two-
year period and that he sold at least one individual up to a
full kilogram of cocaine. Assuming the jury believed all that
to be true, those amounts would have totaled more than thir-
teen kilograms—much more than the requisite five kilograms.
Even more, there was sufficient evidence for jury to con-
clude that Nieto was responsible for distributing five kilo-
grams of cocaine because of the reasonably foreseeable
amounts in the transactions of co-conspirators. See United
States v. McLee, 436 F.3d 751, 765 (7th Cir. 2006). Nieto was a
major participant and leader in the Indiana Latin Kings—an
organization that profited from a large drug distribution con-
spiracy. Witnesses’ testimony confirmed that Latin King peers
of Nieto sold at least a combined 12 kilograms in just one year.
Consequently, it would not have been irrational for the jury
to find that Nieto was responsible for at least five kilograms
of cocaine through either his own possession or the reasona-
bly foreseeable distribution of his co-conspirators.
As to Vallodolid, the government presented similarly
strong testimonial evidence. Keith Manuel, for one, testified
that he saw Vallodolid buy “four bricks” over the course of
two years. And he was not the only Latin King to testify as to
quantities: Jose Sanchez told the jury he bought at least a gram
and a half of cocaine from Vallodolid, while Raphael Cancel
testified Vallodolid sold him cocaine 20 or 25 times, giving
him approximately three grams of cocaine each time. Plus, the
jury again could consider the evidence of Vallodolid’s peers’
20 Nos. 19-2209 & 19-3408
drug distribution. In all, a reasonable jury could have con-
cluded that Vallodolid too was responsible for distributing at
least five kilograms of cocaine.
We affirm Nieto and Vallodolid’s drug conspiracy convic-
tions.
IV
We come, then, to Nieto’s and Vallodolid’s sentencing
challenge. They contend that the district court lacked the legal
authority under the applicable provision of RICO, 18 U.S.C.
§ 1963, to impose a life sentence without first complying with
certain procedural requirements imposed by state law. Their
position requires some unpacking.
Remember that the jury, in returning guilty verdicts
against both defendants, made special findings pursuant to 18
U.S.C. § 1963(a) that increased Nieto’s and Vallodolid’s maxi-
mum sentence to life. In addition to finding that the defend-
ants distributed a sufficient quantity of drugs to justify a life
sentence under federal law, the jury also found each played a
role in a murder to further the activities of the Latin Kings—a
crime also punishable by life in prison under Indiana law. See
Ind. Code § 35-50-2-9(b)(1)(I). Even more specifically, the jury
found that Nieto served as lookout during the robbery that
led to the murder of Rolando Correa and that Vallodolid shot
and killed 16-year-old Victor Lusinski. These express find-
ings—by operation of § 1963(a)—allowed the district court to
increase both defendants’ punishment to life imprisonment.
Both defendants challenge the sentencing enhancement
based on the special verdicts for murder. Under Indiana law,
Nieto and Vallodolid observe, a defendant must be given a
separate proceeding before receiving a life sentence for
Nos. 19-2209 & 19-3408 21
murder. See Ind. Code § 35-50-2-9(d) (“If the defendant was
convicted of murder in a jury trial, the jury shall reconvene
for the sentencing hearing.”). The purpose of the separate pro-
ceeding is to allow the jury to consider mitigating circum-
stances and, in the end, to determine whether the government
has carried its evidentiary burden of showing that the murder
in question involved aggravating circumstances—here, that
the murders furthered the affairs of the Latin Kings. See id.The district court did not hold a separate hearing before im-
posing the life sentences, an error both defendants contend
renders their life sentences procedurally invalid under Indi-
ana law and, by extension, under § 1963(a).
It is the last link in the chain—the extension from Indiana
law to RICO—where the defendants falter in their reasoning.
Put simply, the defendants misinterpret the requirements and
operation of § 1963(a). No doubt Congress incorporated cer-
tain state offenses—those “for which the maximum penalty
includes life imprisonment”—into RICO. 18 U.S.C. § 1963(a).
But substantive incorporation and procedural incorporation
are not one and the same. We made this observation in United
States v. Muskovsky, explaining that the enhancement in
§ 1963(a) is not concerned with state procedures—like addi-
tional hearings—but focuses on what constitutes a crime un-
der state law. See 863 F.2d 1319, 1330–31 (7th Cir. 1988). Fed-
eral law supplies the procedures that district courts must fol-
low in imposing federal sentences.
All other circuits to have considered the question have
reached the same conclusion. See, e.g., United States v. Paone,
782 F.2d 386, 393 (2d Cir. 1986) (“Congress did not intend to
incorporate the various states’ procedural and evidentiary
rules into the RICO statute. The statute is meant to define, in
22 Nos. 19-2209 & 19-3408
a more generic sense, the wrongful conduct that constitutes
the predicates for a federal racketeering charge.”); United
States v. Licavoli, 725 F.2d 1040, 1046 (6th Cir. 1984) (“The ref-
erence to state law in the statute is simply to define the wrong-
ful conduct, and is not meant to incorporate state procedural
law.”); United States v. Frumento, 563 F.2d 1083, 1087 (3d Cir.
1977) (specifying that RICO’s “reference to state law is neces-
sary only to identify the type of unlawful activity in which the
defendant intended to engage”).
Because the jury found beyond a reasonable doubt that
each defendant committed murder (as defined under Indiana
law), while also committing criminal organizational activity,
the district court properly incorporated the substance of the
predicate offense. No bifurcated proceeding was necessary.
Consequently, the district court committed no legal error,
substantive or procedural, in imposing life sentences on Nieto
and Vallodolid.
V
Nieto and Vallodolid raise a host of other issues. For ex-
ample, they claim the evidence presented against them—in-
cluding testimony of Latin Kings members and evidence of
the gang’s violent acts—was unnecessary, cumulative, and
shocking and that the district court impermissibly allowed
the testimony of several witnesses. Having carefully reviewed
the record, we find no merit in these additional contentions.
Both Nieto and Vallodolid were well represented on ap-
peal but because there are no errors, we are left to AFFIRM.