The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
MEMORANDUM OPINION AND ORDER
On December 10, 2008, Defendants Mariano Morales ("Morales"), Arturo Barbosa ("Barbosa"), Harold Crowder ("Crowder"), Miguel Rodriguez ("Rodriguez"), Brian Hernandez ("Hernandez"), Lionel Lechuga ("Lechuga"), and Romel Handley ("Handley") (collectively, the "Defendants") were found guilty of multiple offenses, including racketeering conspiracy and narcotics conspiracy. The jury was unable to reach a verdict as to Defendant Steven Perez. Presently before the Court are Defendants' post-trial motions seeking acquittal or a new trial (R. 1324, 1325, 1327, 1328, 1329, 1330, 1332, 1381) and the Government's Consolidated Response (R. 1450). For the reasons stated herein, the motions are denied.
The facts underlying this case, which involves members of the Insane Deuce street gang (the "Insane Deuces"), have been set forth in several opinions by this Court and by Judge Ruben Castillo and will not be repeated here, except as is relevant to the pending motions. See, e.g., U.S. v. Morales, No. 03 CR 90, 2009 WL 331518 (N.D.Ill., Feb. 10, 2009); U.S. v. Delatorre, 581 F.Supp.2d 968 (N.D.Ill., 2008); U.S. v. Delatorre, 572 F.Supp.2d 967 (N.D.Ill., 2008); U.S. v. Delatorre, 522 F.Supp.2d 1034 (N.D.Ill., 2007); U.S. v. Delatorre, 508 F.Supp.2d 648 (N.D.Ill., 2007); U.S. v. Delatorre, 438 F.Supp.2d 892 (N.D.Ill., 2006). In short, the Government charged 16 members of the Insane Deuces with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d), violent crimes - including murder and assault with a dangerous weapon, and narcotics conspiracy - in aid of the racketeering activity. See R. 227 (Second Superseding Indictment).
Prior to trial, Judge Castillo severed the trial of the defendants into two groups, and this Court agreed to preside over the trial of Defendants Morales, Barbosa, Crowder, Rodriguez, Perez, Hernandez, Lechuga, and Handley. Delatorre, 522 F.Supp.2d at 1056.*fn1
The Court began the trial of these Defendants on April 2, 2008, but had to declare a mistrial shortly after opening statements when several jurors asked to be removed from the jury. R. 884.
On October 6, 2008, the Court began the two-month trial of Defendants Morales, Barbosa, Crowder, Rodriguez, Perez, Hernandez, Lechuga, and Handley. During the trial, the jury heard testimony from more than 100 Government witnesses and 14 Defense witnesses. See Trial Transcript ("Tr.") at 136-4140. Among the evidence was testimony of former Insane Deuce gang members now cooperating with the Government, including Orlando Rivera, a former high-ranking member of the Aurora Insane Deuces; undercover audiotapes of gang meetings; undercover videotapes; eyewitness identifications; and firearms, drugs, and gang-related documents recovered from Defendants' homes.
On December 10, 2008, after deliberating for approximately one week, the jury found Defendants guilty on all but one count (the conspiracy to murder charge against Defendant Morales). R. 1195, 1196, 1198, 1200, 1202, 1204, 1206, 1208. The jury was unable to reach a verdict on Defendant Perez, which required the Court to declare a mistrial as to that defendant. R. 1185. After further proceedings and deliberations, on December 11, 2008, the jury returned its verdict on Phase II, the special factual findings pertaining to sentencing in which the jury determined the amounts of cocaine, crack cocaine, and marijuana proven to be involved in the narcotics conspiracy. R. 1197, 1199, 1201, 1203, 1205, 1207.
Now before the Court are Defendants' post-trial motions alleging numerous reasons why each is entitled to acquittal, or alternatively, a new trial. See R. 1324, Lechuga's Mot. for Judgment of Acquittal and/or for a New Trial ("Lechuga Mot."); R. 1325, Rodriguez's Rule 33 Mot. for a New Trial and Rule 29(c) Mot. for Judgment of Acquittal("Rodriguez Mot."); R. 1327, Morales' Second Mot. for New Trial ("Morales Mot."); R. 1328, Hernandez's Mot. for a New Trial or a Judgment of Acquittal ("Hernandez Mot."); R. 1329, Handley's Mot. for Judgment of Acquittal or New Trial ("Handley Mot."); R. 1332, Barbosa's Post-Trial Mot. ("Barbosa Mot."); R. 1381, Crowder's Post-Trial Mot. for Judgment of Acquittal and/or for a New Trial ("Crowder Mot."). These motions are now fully briefed. See R. 1450, Govt.'s Resp. to Defs.' Post-Trial Mots. ("Govt. Resp.").
II. MOTIONS FOR ACQUITTAL
Defendants Crowder, Rodriguez, Hernandez, Lechuga, and Handley move for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) on the basis that there was insufficient evidence to support their convictions. First, the Court will address arguments common to multiple Defendants regarding the sufficiency of the evidence, and then it will consider contentions specific to individual Defendants.
A motion for acquittal filed after the jury has returned a guilty verdict asks the Court to set aside the verdict and enter a judgment of acquittal. FED. R. CRIM. P. 29(c). A party challenging a jury conviction based on sufficiency of the evidence "faces a steep uphill battle." U.S. v. Graham, 315 F.3d 777, 781 (7th Cir., 2003). However, a jury's verdict is not inviolate. U.S. v. Radomski, 473 F.3d 728 (7th Cir., 2007). In evaluating sufficiency of the evidence claims, a court "must determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." U.S. v. Moore, 425 F.3d 1061, 1072 (7th Cir., 2005) (internal quotations omitted); U.S. v. Carter, 410 F.3d 942, 952 (7th Cir., 2005). When making this determination, courts "do not weigh the evidence or assess the credibility of witnesses." U.S. v. Orozco-Vasquez, 469 F.3d 1101, 1106 (7th Cir., 2006).
B. Evidence Common to Multiple Defendants
1. Testimony of Orlando Rivera
First, multiple Defendants argue that their convictions cannot stand because the Government's main informant, Orlando Rivera, a former high-ranking member of the Insane Deuces, was impeached. See, e.g., Hernandez Mot. at 2-4; Handley Mot. at 1-5. Defendants contend that the Government's case depended entirely on Mr. Rivera's testimony, which they argue was inconsistent and unreliable as a matter of law.
Defendants' arguments about the inherent unreliability of Mr. Rivera's testimony amount to an attack on Mr. Rivera's credibility. The credibility of a witness is for the jury, not the court, to decide. Moore, 425 F.3d at 1073. Even upon finding inconsistencies or other flaws in a witness' testimony, a court generally refrains from interfering with a jury's credibility determination when the jury "has chosen to credit crucial testimony with full knowledge of the many faults of the witness providing it." Id. A witness' testimony is not rendered "incredible as a matter of law" merely because the witness was "impeached by certain discrepancies in his story, by prior inconsistent statements, or by the existence of a motive to provide evidence favorable to the government." U.S. v. Alcantar, 83 F.3d 185, 189 (7th Cir., 1996). In order to obtain a new trial based on the credibility of a witness, a defendant must show that a witness's testimony was incredible, either because it would have been impossible for the witness to observe what he described, or because it would have been impossible for the event described by the witness to have occurred. See U.S. v. Ortiz, 431 F.3d 1035, 1039 (7th Cir., 2005).
During trial, Mr. Rivera testified for approximately seven days.
Tr. at 393-1687. During his direct examination, Mr. Rivera testified about his prior involvement in the Insane Deuces, his cooperation with the Government, and his deal for immunity. Counsel for each Defendant had the opportunity to cross-examine Mr. Rivera thoroughly regarding his motives, prior offenses, inconsistent statements, and agreement with the Government. See id. at 1012-1687; see, e.g., id. at 1012-27 (motives, credibility, bargain for immunity, trial preparation, prior crimes, lies to police and in prior trial), 1039- 41 (drug dealing and lies to dealers), 1077-82 (memory and drug use), 1202-81 (prior violent crimes and drug use), 1325-27 (payments from the Government), 1432-38 (gang-related dangers in jail), 1586-89 (testimony during trial before Judge Castillo). During his cross-examination, Mr. Rivera admitted that he attempted murder "more than 47 times" and agreed that he would not "spend a day in prison for those murders or attempted murders" as long as he testified truthfully. Id. at 1036. He testified that, after agreeing to cooperate, he was relocated and reimbursed by the Government for his living expenses, food, and missed work. Id. at 1007, 1028. Mr. Rivera also conceded his limited knowledge about certain events and defendants. See, e.g., id. at 1188-90 (Defendant Crowder); id. at 1524-29, 1538-39 (Defendant Handley).
The jury was charged with assessing the extent to which Mr. Rivera's motives may have influenced his testimony and with determining whether inconsistencies in his testimony rendered it unreliable. The Court specifically instructed the jury that they must decide whether each witness' testimony was "truthful and accurate, in part, in whole, or not at all, as well as what weight, if any" the testimony should receive. Id. at 4828. The jury was told that they could consider multiple factors to evaluate a witness' testimony, including the witness' memory and any interest, bias, or prejudice. Id. The Court also instructed the jury that they could evaluate a witness' inconsistent statements, prior convictions, and immunity when determining his credibility. See id. at 4834-36.
After reviewing the record, the Court rejects Defendants' contentions that Mr. Rivera's testimony was incredible as a matter of law. After approximately three days of intense cross examination, the jury was made well aware of potential weaknesses in Mr. Rivera's credibility as a witness and testimony about specific events. The jury was fully informed about the caution and care it should employ in assessing the credibility of testimony, and the Court has no reason to doubt that the jury understood and abided by the Court's instructions. See U.S. v. Puckett, 405 F.3d 589, 599 (7th Cir., 2005) (Courts presume "that jurors, conscious of the gravity of their task, attend closely to the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instruction given them."). For these reasons, the jury is entitled to its credibility determination regarding Mr. Rivera's testimony. See Ortiz, 431 F.3d at 1039.
2. Evidence of a RICO Enterprise
Second, multiple Defendants imply in their motions that there was insufficient evidence of a RICO enterprise.
On Counts One, racketeering conspiracy, the jury was instructed that the Government must prove three elements beyond a reasonable doubt: (1) an agreement to conduct or participate in the affairs (2) of an enterprise (3) through a pattern of racketeering activity. Tr. at 4840-41; see also U.S. v. Olson, 450 F.3d 655, 664 (7th Cir., 2006). The Court further broke down the elements of RICO and explained what the Government must prove in order for the jury to find an enterprise, a conspiracy, a pattern of racketeering activity, and an individual Defendant's membership in the racketeering conspiracy. Tr. at 4841-51. In a similar manner, the Court instructed the jury as to what the Government must prove under Count Nine, the narcotics conspiracy charge. Id. at 4855-59.
The Court finds no reason to challenge the jury's determination that the Insane Deuces constituted a criminal racketeering enterprise. The Government offered extensive evidence regarding the street gang operations of the Insane Deuces, including audio and visual recordings, cooperating gang member testimony, and the gang's by-laws, as well as evidence that its members, including Defendants, engaged in acts of violence against rival gang members and other victims. Overwhelming evidence established that the Insane Deuces functioned as a continuing unit with a definite structure, chain of command, and distinct roles for gang members; that members engaged in drug trafficking to benefit the gang; and that the gang operated a "caja" system, in which members had access to a common fund of money, drugs, and guns. See, e.g., Tr. 415-27, 454-60, 914-15, 2330-40, 2992, 3279-96. This type of street gang operation constitutes a long-recognized form of a RICO enterprise. See 18 U.S.C. § 1961(4); see, e.g., Olson, 450 F.3d at 668 (the Latin Kings street gang); U.S. v. Phillips, 239 F.3d 829, 845-46 (7th Cir., 2001) (the Dawg Life street gang); see also Delatorre 581 F.Supp.2d at 975-76 (J. Castillo) (finding sufficient evidence to uphold the jury verdict that the Insane Deuces, Aurora chapter, constituted a RICO enterprise). The Court finds that a rational fact-finder could have found that an enterprise existed beyond a reasonable doubt. Thus, the Court will not disturb the jury's verdict. See Moore, 425 F.3d at 1072.
C. Evidence Specific to Individual Defendants
1. Evidence against Defendant Crowder
Defendant Crowder separately argues that no rational trier of fact could have found sufficient evidence against him on the racketeering charge. Crowder Mot. at 1-2; see also R. 1112 (Crowder's Mot. for Judgment of Acquittal, filed Nov. 17, 2008). Crowder contends that the Government failed to prove beyond a reasonable doubt that he was an Insane Deuce gang member or otherwise participated in the conspiracy.
The Court rejects Crowder's argument. The jury heard evidence of Crowder's membership in the Insane Deuces, including cooperator testimony that identified him as "H-Man," and testimony that Crowder had previously been a Gangster Disciple and later became an Insane Deuce member and gunner. Tr. at 436, 442-43, 839-40, 2386-90. Throughout the trial, the Government offered evidence that a primary responsibility of an Insane Deuces gang member was to kill and attempt to kill rival gang members, particularly Latin Kings. The evidence established that Crowder personally participated in numerous acts of racketeering, including the attempted murder of Latin King drug dealer Juan Corral, the murder of Robert Perez, and the shooting at the car of the Ernesto Rosas family (mistaking them for Latin Kings). See, e.g., Tr. at 621-26, 903-05, 956, 1648, 2140, 2185-89, 2276-77.
Based on the totality of the evidence, the jury determined that Crowder was, in fact, an Insane Deuce member and that he committed acts of racketeering in furtherance of the conspiracy. It is not the role of this Court to "weigh the evidence or assess the credibility of witnesses" in ruling on Crowder's sufficiency of the evidence claim, see Orozco-Vasquez, 469 F.3d at 1106, and the Court finds that a rational fact-finder could have concluded that Crowder was guilty of the racketeering conspiracy. Accordingly, the Court finds sufficient evidence to uphold Crowder's convictions.
2. Evidence against Defendant Rodriguez
Defendant Rodriguez argues that there is insufficient evidence supporting his convictions of RICO conspiracy and narcotics conspiracy. Rodriguez Mot. at 4-7.
The Court finds no merit to either argument. With respect to the racketeering conspiracy conviction, the Government provided substantial evidence of Rodriguez's longtime membership in the Insane Deuces, including audio recordings of Rodriguez self-identifying as a member of the gang and discussing making decisions as a leader in the organization. See, e.g., Tr. at 435-37, 469-70, 509, 700-09, 732, 739-40. On these tapes, the jury also heard Rodriguez discuss the gang's plans for multiple violent acts, including fighting the rival Ambrose gang and dealing with an Insane Deuce members suspected of cooperating with the police. See, e.g., id. at 525, 740, 766, 985-87. In addition, the Court finds that, based on the evidence presented during trial, the jury could have found that Rodriguez, acting as an Insane Deuce member, possessed and sold firearms to benefit the gang. See, e.g., id. at 917-20, 2756-59, 3324-29. In short, the Court finds sufficient evidence to uphold Rodriguez's racketeering conspiracy conviction.
Similarly, the evidence supporting Rodriguez's narcotics conspiracy conviction is supported by the evidence. As discussed above, the Government offered ample evidence, including testimony from cooperating gang members, consensual recordings, and controlled purchases, that demonstrated that members of the Insane Deuces sold narcotics and that the gang benefitted from narcotics trafficking. See infra at 9-11. The Government's evidence showed that the Insane Deuces operated a "caja" system, in which gang members were able to sell drugs from the caja, giving back part of the profit to the caja. See id. Moreover, the evidence established that the gang operated a "free enterprise" system of drug dealing, which allowed members to purchase drugs from any source, including non-members, so long as the drug sales benefitted the gang in some way. See id.
After reviewing the record, the Court finds no shortage of evidence supporting the jury's finding that Rodriguez was a member of the narcotics conspiracy. Among other evidence, the jury heard an audio recording of a meeting on June 7, 2002, in which Rodriguez discussed the free enterprise system of drug trafficking and of his presence at a July 5, 2002 meeting, in which gang members discussed use of drugs from the caja. Tr. at 725, 735. The Court, therefore, finds sufficient evidence to uphold both Rodriguez's racketeering conspiracy and ...