Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:03-cr-00090-Ruben Castillo, Judge.
The opinion of the court was delivered by: Hamilton, Circuit Judge.
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
The Insane Deuces was a street gang engaged in a long-running conspiracy involving deadly violence and drug distribution in northern Illinois. In 2006, a grand jury indicted sixteen individuals involved in the gang for conspiracy under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d), and related charges of murder, conspiracy to commit murder, assault with a dangerous weapon, drug distribution, conspiracy to distribute drugs, and unlawful possession of firearms. One defendant named in the indictment was not apprehended and remains a fugitive. Another pled guilty. The case against the other fourteen was severed into two trials. The appeals addressed in this opinion stem from the first trial. A second set of appeals stems from the second trial. Our opinion in that case, also released today, is reported as United States v. Morales, et al., No. 09-2863, ___ F.3d ___ (7th Cir. 2011).
Seven defendants were tried in the first trial. Six were found guilty and appeal their convictions. They are*fn1 Bolivar Benabe, Julian Salazar, Juan Juarez, Christian Guzman, Stephen Susinka, and Fernando Delatorre. The trial of these appellants began on February 6, 2008, and ran through the return of the special RICO verdicts and forfeiture verdicts on April 23, 2008. Over the course of several weeks the government presented and the jury heard evidence that in 2002 alone, the Insane Deuces committed four murders, eleven attempted mur-ders, two solicitations to commit murder, and multiple other shootings. The evidence was presented through eyewitness testimony, the testimony of cooperating witnesses, recorded co-conspirator statements, and ballistics evidence. Eyewitnesses who were not in the gang identified the shooters in three murders and/or attempted murders proven at trial, including the identification of defendant Guzman as the shooter in a July 18, 2002 attempted murder and the August 11, 2002 murder of David Lazcano. Five former Insane Deuces testified against the defendants, describing for the jury the gang's structure, leadership, and membership, its rules and regulations, and providing horrific details of the murders and attempted murders committed by the Insane Deuces. Through search warrants, arrests, or cooperation, the government recovered firearms used in eleven of the sixteen murders and attempted murders presented to the jury at trial, directly linking the Insane Deuces to those shootings.
All six of the defendants were convicted of RICO conspiracy, 18 U.S.C. § 1962(d) (Count 1 of the Second Superceding Indictment). Delatorre and Guzman were convicted of murder in aid of racketeering activity, 18 U.S.C. § 1959(a)(1) (Count 2), and Juarez and Salazar were convicted of conspiracy to commit murder in aid of racketeering, 18 U.S.C. § 1959(a)(5) (Counts 3 (Salazar) and 4 (Juarez and Salazar)). Delatorre, Benabe, Juarez, and Salazar were convicted of conspiracy to distribute con-trolled substances, 21 U.S.C. § 846 (Count 9). Delatorre*fn2 was also convicted of assault with a dangerous weapon in aid of racketeering activity, 18 U.S.C. § 1959(a)(3) (Count 5), murder in aid of racketeering activity, 18*fn3 U.S.C. § 1959(a)(1) (Counts 6 and 7), distribution of crack cocaine, 21 U.S.C. § 841(a)(1) (Count 12), and possession of a firearm with an obliterated serial number, 18 U.S.C. § 922(k) (Count 13). After a second round of deliberations, the jury returned a special RICO verdict assigning responsibility for four murders that were charged in Paragraphs 15, 16, 19, and 20 of Count 1. The jury also returned a finding with respect to Delatorre and Benabe that eighteen firearms be forfeited.*fn4
Following denial of the defendants' post-trial motions, the court sentenced Delatorre, Benabe, Juarez, Salazar and Guzman to life imprisonment. Susinka was sentenced to twenty years in prison. All defendants appeal their convictions; Susinka also appeals his sentence.
The defendants' appeals present a host of issues. We address many of those issues in a separate unpub-lished order issued today. We address in this opinion*fn5 several issues for which a published opinion may be useful: (1) the district court's decision to try the case by an anonymous jury; (2) the district court's decision to remove defendants Delatorre and Benabe from the courtroom upon their refusal to assure the court on the eve of trial that they would refrain from inappropriate outbursts in the presence of the jury; (3) the district court's denial of a motion to suppress in-court and out-of-court eyewitness identifications of Guzman as the shooter in a gang murder; (4) the district court's jury instructions; (5) the district judge's decision to provide the jury with partial transcripts during its deliberations; and (6) alleged juror "misconduct" that came to light after the verdict was rendered. Before addressing these questions we provide an overview of the Aurora Insane Deuces gang and the relevant facts. This summary, which only scratches the surface of the evidence presented to the jury, is recounted here in the light most favorable to the verdicts. Additional facts are available in our companion case, Morales, No. 09-2863, slip op. at 2-14, ___ F.3d at ___.
The Aurora "Insane Deuces"
The Aurora faction of the Insane Deuces was the focus of this case. Its goal was to eliminate rival gangs and take over the streets of Aurora. Non-Insane Deuces were a threat to this goal. As defendant Salazar explained at a gang meeting in the summer of 2002, "They're a threat because they're a threat to our growth, our growth, because all of those neutron kids growin' up, they're given' them another option to turn to somethin' else. . . . They should only have one choice. . . . Either if you gonna be that side . . . you gonna be on this side, you ain't got but one choice. Turn Deuce. They stuntin' our growth."
The gang was organized into three levels of manpower: "Seniors," "Juniors" and "Shorties." The Juniors were the active gang members most responsible for day-to-day operations. Seniors were older members of the gang who were less active but advised the Juniors. The Shorties were the youngest members of the gang, often juveniles, whose job it was to carry out the orders of the Juniors. Juniors were led by members who served in roles of "Junior Governor," "Lieutenant Governor," and "Enforcer," and similarly the Shorties were led internally by their own "First Seat," "Second Seat," and "Enforcer." Individual gang members advanced within the gang by committing acts of violence, such as shooting members of rival gangs on "missions." The gang conducted meetings for Juniors and Shorties, called "juntas," at which the gang's business was discussed: missions and leadership roles were assigned, conflicts with rival gangs were reviewed, violence against rival gangs was planned, and intelligence was shared. The attending members also discussed dealing drugs, efforts to acquire firearms, the appropriate apportionment of dues and fines among the members, and how to support members who had been jailed. Insane Deuces in jail continued to enjoy the privileges of gang membership and could expect support and protection from their fellow members.
The gang had written rules, called "leyas," and also abided by other, unwritten rules. Members were required to follow orders and report "missions" to their superiors. Members were punished, or "violated," for disobeying a rule. "Violations" ranged from assignments to additional missions to being beaten to being killed. Cooperation with law enforcement warranted the worst violation. The gang also maintained a "caja," which provided members with access to a common supply of drugs, guns, and money. Members took drugs from the caja, sold them, and then returned their cost and some profit to the caja. This profit went toward the purchase of additional firearms and drugs, and for bail money. Members of the Insane Deuces also could benefit from the "free enterprise" rule, which permitted members to deal drugs on the side so long as they shared their individual profits with the gang for its benefit.
In May 2002, in a coup that would lead to the indictments in this case, an Aurora police detective recruited Orlando Rivera as a confidential source. At the time, Rivera was a Junior Enforcer of the Aurora Insane Deuces. Under the supervision of local police and federal agents, Rivera provided information about the gang's activities and began making recorded purchases of firearms and cocaine from the Insane Deuces and their associates. In return for his cooperation with and assistance to law enforcement, Rivera was given total immunity.
Rivera also attended and recorded gang meetings and one-on-one conversations he had with members after shootings, including murders. In these recordings, gang members planned violent acts against rival gangs (including murder). They discussed their ability to make money through drug sales fronted by the caja, as well as the need for more firearms. They also discussed the gang's ultimate goal of taking over Aurora's streets, the gang's organizational structure, and its system of dues and fines. These recordings featured prominently in the trial and no doubt left an indelible impression on the jury. Over Rivera's six days of testimony, the jury heard recordings he had made of gang meetings and activities on approximately 22 dates.
Through Rivera's secret recordings, the jury heard the defendants' own statements about their activities. For example, in a recorded meeting on August 22, 2002, Delatorre confirmed that the gang was involved in the July 18, 2002 shooting of a rival Latin King. He also admitted to being the driver in the Lazcano murder, giving specific details, including the car he drove and the type of gun used. The jury heard a recorded conversation between Rivera and Delatorre on October 19, 2002, when the two met to dispose of two firearms. Delatorre told Rivera in the recording that he and other Insane Deuces killed David Morales on October 16, 2002. Law enforcement recovered the firearms. Ballistics evidence matched one gun to the Morales murder and the other to two shootings - a September 19, 2002 attempted murder in which a bystander was shot in the back, and a September 28, 2002 attempted murder in which another bystander, a 14-year-old boy, was shot in the back and paralyzed. Other Insane Deuces admitted on tape to being involved in three murders and three attempted murders, and Salazar was recorded soliciting the commission of murder in August 2002.
Issues Presented on Appeal
Ordinarily, parties have available to them the names, addresses, occupations, and locations of employment of potential jurors. They can then use this information to question potential jurors to discern possible biases. Unfortunately, in some trials, potential jurors are at high risk of harassment, intimidation, or other unwelcome and disruptive influences. To protect potential jurors and their families, the trial court may decide to withhold identifying information from the parties, although the decision cannot be taken lightly. "An anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence." United States v. Mansoori, 304 F.3d 635, 650 (7th Cir. 2002), quoting United States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994). "Juror anonymity also deprives the defendant of information that might help him to make appropriate challenges - in particular, peremptory challenges - during jury selection." Mansoori, 304 F.3d at 650, citing United States v. DiDomenico, 78 F.3d 294, 301 (7th Cir. 1996); United States v. Edmond, 52 F.3d 1080, 1090 (D.C. Cir. 1995). Although empaneling an anonymous jury is an extreme measure, it may be warranted where "there is a strong reason to believe the jury needs protection." United States v. Crockett, 979 F.2d 1204, 1215 (7th Cir. 1992). The trial court therefore must weigh the defendant's and the public's interest in preserving the presumption of innocence and in conducting a useful voir dire against the dual interests of the jurors' security and their impartiality. Mansoori, 304 F.3d at 650.
Here, the government argued that anonymity was necessary to protect the safety of the jurors. The defendants objected. The defendants argued that potential jurors likely would be unwilling to be sufficiently forthcoming in voir dire if anonymous, and that an anonymous jury would be unduly alarmed about possible threats to their safety, prejudicing the defendants. After noting that the defendants were accused of being involved in organized crime and faced life sentences if convicted, Judge Castillo granted the government's motion. He further concluded that "the government has alleged with sufficient particularity that the defendants have a history of intimidating witnesses or otherwise obstructing justice such that they may do so in connection with this trial." In support of this finding, Judge Castillo relied heavily on the gang's history of retaliation and intimidation of witnesses and cooperators. He noted that Salazar and Juarez, together with severed co-defendants Mariano Morales and Arturo Barbosa, were accused of conspiring to murder an individual who they believed was cooperating with law enforcement. Rivera had surreptitiously recorded these defendants arranging the murder of the suspected informant in October and November 2002. Also, severed co-defendant Steven Perez was accused of firing 29 rounds into Rivera's parents' house, injuring his father, after the gang learned of Rivera's cooperation. Each of*fn6 these incidents occurred more than four years before the trial began, but because one of the charged defendants was still at large and other members of the gang had not been charged and were free, the judge concluded that the gang had the means to intimidate jurors, a history of such intimidation, and that under these circumstances, juror anonymity was warranted.
On appeal, we review the district court's decision to empanel an anonymous jury for abuse of discretion. Mansoori, 304 F.3d at 650. We find that there was no abuse of discretion here. Judge Castillo weighed the appropriate factors, which, as Mansoori instructs, included the defendants' involvement in organized crime, the Insane Deuces' capacity to harm jurors, the Insane Deuces' previous attempts to interfere with the judicial process, the severity of the sentences the defendants faced if convicted, and whether publicity surrounding the case presented the prospect that the jurors' names could become public and expose them to intimidation or harassment. Id. at 650-51. An anonymous jury is not appropriate in every criminal trial involving organized crime. "Something more" than the organized-crime label is necessary to justify juror anonymity, such as "a demonstrable history or likelihood of obstruction of justice" by the defendants or a "showing that trial evidence will depict a pattern of violence by the defendant and his associates such as would cause a juror to reasonably fear for his own safety." Mansoori, 304 F.3d at 651, quoting Crockett, 979 F.2d at 1216. The record in this case fully supports Judge Castillo's finding that the Insane Deuces had a history of witness intimidation, that the gang retained the capacity to strike at members of the jury, and that there was a real risk of juror intimidation. In other words, this case had the requisite "some-thing more." The district court properly exercised its discretion to keep this jury anonymous, and we affirm its decision.
II. Absence of Delatorre and Benabe from the Courtroom
On February 5, 2008, the day before jury selection began, the district judge ordered that defendants Delatorre and Benabe would not be permitted to attend the trial unless and until they assured the judge that they would not disrupt the trial. Both refused. The judge made arrangements for them to watch a video feed of the trial from their detention center, though neither did. The judge also made it clear that they could return to court to attend their trial whenever they were willing to promise to behave. Neither ever did so.
Joined by each of their co-defendants, Delatorre and Benabe argue on appeal that the judge's handling of their behavior violated their rights under the Sixth Amendment and Federal Rule of Criminal Procedure 43. As we explain below, the record shows that Judge Castillo was patient and judicious in dealing with these defendants' persistent attempts to disrupt their prosecution. He took the extraordinary step of barring them from attending trial only after it was clear that they intended to disrupt the trial and undermine the ability of the other defendants and the government to have a fair trial. Both defendants effectively consented to their removal by their conduct, so we find no constitutional error. We find that the district court erred under Rule 43 by barring the defendants from trial on the day before trial rather than on the first morning of trial, but we find that the error in timing was harmless.
A. Disruptions by Delatorre and Benabe
Removal of the accused from his criminal trial will rarely be justified, but it was justified by this record, which we describe in detail to show the judge's efforts to ensure that the trial would be fair for all parties before removing these two defendants from the courtroom. Delatorre played the leading role. He was represented by two attorneys, but on October 16, 2007, he filed the first of more than twenty pro se documents describing himself as "Sovereign Secured Party Creditor Fernando Delatorre." In these papers, he challenged the legitimacy of the United States government, its jurisdiction over him, and the validity of the charges brought against him. He claimed to be "sovereign" and immune from prosecution. Benabe later joined Delatorre in this effort to thwart the proceedings by his own assertions of "sovereignty" and immunity.
On October 17, 2007, the court heard argument on Delatorre's motion to suppress evidence. Delatorre appeared but refused to participate because his attorneys "refused to represent me as a flesh-and-blood human being." The next day, giving Delatorre the benefit of the doubt, the court ordered Delatorre to undergo a competency evaluation.
At a status hearing held on October 31, 2007, Delatorre referred to himself as "a secured party creditor . . . third-party intervenor." He claimed that he was not the person named in the indictment because his name was not spelled with all capital letters (as it was in the indictment). He demanded to know of the prosecutor "what legal definition exactly, legal definition of the term person are you applying to me for the purposes of these proceedings?" At the court's next status hearing, Delatorre repeated his claim that he was "a born sovereign flesh-and-blood human being and a secured party creditor." When the court announced that there would be a hearing on the competency evaluation, Delatorre interrupted: "I need to address these various issues right here and now." The court stated the hearing was concluded. Undeterred, Delatorre continued: "Let the record reflect the Court is not allowing me to address my various issues and is intending to punish me for exercising my rights as a sovereign secured party creditor." The court then ended the hearing.
The next hearing of note was on January 11, 2008. Delatorre's attorney introduced himself, and Delatorre broke in: "Excuse me, Mr. Kling does not represent me in any way, shape or form . . . . That is all I have to say for now." Judge Castillo then found Delatorre competent to stand trial and urged him to discuss his case with his court-appointed counsel to prepare for trial. But Delatorre's disruptions continued. He told the court that his attorneys had refused to represent him as a secured party creditor and that the government had refused to respond to his requests about the basis for his prosecution. Looking ahead toward the trial, Judge Castillo advised Delatorre that any outbursts in front of the jury would prejudice him. Delatorre, how-ever, maintained that he continued to challenge what he called the court's "subject matter and personam jurisdiction." Judge Castillo then referred to Delatorre's pro se filings and said that his requests would be denied. Delatorre asked if he would receive something in writing, and the judge said that he would issue a minute order. Delatorre asked about the nature and content of the forthcoming order. Judge Castillo told him that while he might be unhappy with the ruling, he could appeal. Delatorre continued his protests. Judge Castillo asked him to be quiet, and Delatorre responded, "I'm going to politely honor that request." He did not.
Instead, as the judge tried to move on, Delatorre interrupted to ask the court again about his pro se filings. Judge Castillo responded, "I think I already asked you, Mr. Delatorre, if there was anything else you wanted to cover." Undeterred, Delatorre continued:
DELATORRE: Well I did. You asked me to remain silent though. You asked. You responded that I do so, but I would like to continue to speak, if that would be possible. Can I?
COURT: I would ask you to remain silent then because I think I've covered it.
DELATORRE: Then I'm going to have to honor that -
COURT: Are there any other pro se motions?
DELATORRE: - because you have not answered my questions.
COURT: No, I'm asking you to remain silent at this point.
DELATORRE: And I'm asking you to respond to my questions.
Delatorre then continued for several more pages of transcript without interruption, demanding an explanation of the gold fringe on the flag in the courtroom, repeating his jurisdictional objections, and making assertions such as: "No one can explain to me why the United States has to operate as a corporation. No one can explain to me that there is, in fact, a distinction between the united 50 union states and the United States federal govern-ment. No one can explain to me who's, in fact, bringing this claim or charge against me."
By this time, Judge Castillo, the prosecutors, and defense counsel were justifiably concerned about the prospect that Delatorre would disrupt the trial, prejudicing himself and his co-defendants. Judge Castillo asked the prosecutors how they wished to proceed with Delatorre, and several co-defendants then moved for severance. Judge Castillo said at this point that it was becoming increasingly likely that Delatorre would continue in his sovereign-citizen assertions out of turn and in front of the jury. He expressed his reluctance either to remove Delatorre from the courtroom or to bind and gag him at trial.
At the next status conference, on January 29, 2008, Delatorre tried to seize the agenda by repeating his jurisdictional challenges. Judge Castillo allowed him to talk and then explained once again that he rejected Delatorre's jurisdictional challenges, and reasonably asked Delatorre whether he could refrain from disrupting the trial. Delatorre refused to answer. After listening to more of Delatorre's ramblings, the court asked once again: "My question to you is once we start picking the jury . . . will you allow your attorneys to speak for you during the jury selection and trial?" Again, Delatorre did not answer. Instead he asserted that his attorneys were refusing to represent him "as a flesh-and-blood human being," that his name was spelled incorrectly in the indictment, and that he needed the court to prove that the government had jurisdiction over him. He insisted that he did not consent to the proceedings and that he was a sovereign and thus immune from prosecution. With admirable patience, the court again asked, "Are you going to allow Mr. Kling and Mr. Huyck to represent you and stay silent while we select a jury next Wednesday?" The judge explained that "if you disrupt the jury selection, I'm going to have no choice but to have you removed from the courtroom. Do you understand that?"
Delatorre's disruptions continued. After warning him once more that "the consequences of continuing along these lines will be you being removed from the trial and the trial will proceed without you," Judge Castillo ordered him removed from the courtroom. Delatorre had been the only defendant to appear at the January 29 conference in person; the other defendants (including Benabe) were represented by counsel but were not them-selves present, having waived their right to appear.
The following day the court issued an opinion rejecting Delatorre's sovereign-citizen theories and recounting the history of his disruptive behavior. The written opinion again warned Delatorre "that his continued failure to obey this Court's orders could result in him being barred from the courtroom during jury selection or trial to avoid potential prejudice to his six co-Defendants and to himself." United States v. Delatorre, 2008 WL 312647, at *3 (N.D. Ill. Jan. 30, 2009).
At a status conference hearing on January 31, Judge Castillo asked defense counsel to read the January 30 order and to share it with each of the defendants. With all defendants present, the judge said that before the start of the trial, he would ask "each defendant if they intend to speak during the trial without . . . court permission. And any defendant who responds in the affirmative will be held at the [Metropolitan Correctional Center] from day one of the trial and will see the trial from a seat at the MCC. I will not allow any defendant to prejudice any of the other defendants on trial before any of the prospective jurors." The judge stated that "any further attempts by Mr. Delatorre or any defendant to disrupt this trial will have to be interpreted by me as a willingness on the part of that defendant to watch the trial at the MCC, and I will make arrangements to ensure that that happens."
After these warnings at the beginning of the January 31 status conference, defendant Benabe interrupted and began to pursue the same disruptive course that Delatorre had followed. Benabe began to protest the court's jurisdiction by stating that he was "a secured-party creditor, third-party intervenor" and that he was not the "all-capital, corporate fiction person, debtor, straw man" named in the indictment. He demanded "docu- mented evidence" that the court had jurisdiction over him as a "born sovereign, flesh-and-blood human being." The trial court referred Benabe to its January 30 opinion and stated that it was a "bad sign" that Benabe did not want to read the opinion. The court again warned Benabe that before the trial started, "I will ask you whether or not you're going to make statements without . . . court permission during the trial. If you give me no answer or if you say that you will, I will hold you at the MCC while the trial proceeds." When Benabe continued to demand proof that the court had jurisdiction over him, the court ordered him removed from the courtroom. (After his removal, Benabe filed multiple pro se documents on February 4 that echoed his January 31 assertion of "sovereign citizenship.") After Benabe's removal from the courtroom, Delatorre joined in again, saying, "I'm not a defendant, but I have an unresolved issue that I would like to address." He was also removed at that point.
Things came to a head on February 5 - the day before jury selection would begin. All defendants were present for another status hearing. True to his word, Judge Castillo inquired whether counsel had received the January 30 opinion, whether defendants had read it, and whether each defendant agreed not to make any statements to the jury without permission. All agreed except Delatorre and Benabe. Benabe refused to answer the ...