Argued: December 5, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CR 746 -- Charles R. Norgle, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee (11-3179, 11-3410, 11-3493, 11-3615, 11-3874, 11-3886, 12-1141, 12-1804, 13-1370): Georgia N. Alexakis, Attorney, Mark E. Schneider, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.
For LUIS GARCIA, also known as WILD, also known as JOSE CAMPOS, Defendant - Appellant (11-3179): William Donald Shaver, Attorney, LAW OFFICE OF WILLIAM D. SHAVER, Chicago, IL.
For FELIPE ZAMORA, Defendant - Appellant (11-3410): Michael P. Gillespie, Attorney, MICHAEL P. GILLESPIE, LTD., Chicago, IL; William S. Stanton, Attorney, LAW OFFICE OF WILLIAM S. STANTON, Chicago, IL.
For FERNANDO KING, Defendant - Appellant (11-3493): Johanna M. Christiansen, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL; John C. Taylor, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL.
For SAMUEL GUTIERREZ, also known as WEDO, Defendant - Appellant (11-3615): Susan M. Pavlow, Attorney, LAW OFFICE OF SUSAN M. PAVLOW, Chicago, IL.
For JAVIER RAMIREZ, also known as CONVICT, Defendant - Appellant (11-3874): Paul M. Brayman, Attorney, LAW OFFICES OF PAUL M. BRAYMAN, Chicago, IL; Lisa Lundell Wood, Attorney, Chicago, IL.
For JOSE GUZMAN, also known as BOO BOO, Defendant - Appellant (11-3886): Nishay Sanan, Attorney, Chicago, IL; Daniel A. Rufo, Attorney, BLEGEN & GARVEY, Chicago, IL.
For AUGUSTIN ZAMBRANO, also known as BIG TINO, also known as TINO, also known as VIEJO, also known as OLD MAN, Defendant - Appellant (12-1141): Adam M. Altman, Attorney, Chicago, IL; Lisa M. Lopez, Attorney, JOSEPH R. LOPEZ, LTD, Chicago, IL.
For ALFONSO CHAVEZ, Defendant - Appellant (12-1804): Matthew Robert Carter, Attorney, WINSTON & STRAWN LLP, Chicago, IL; Gabrielle R. Sansonetti, Attorney, Chicago, IL.
For VICENTE GARCIA, Defendant - Appellant (13-1370): Justina Shobat, Attorney, Chicago, IL.
Before WOOD, Chief Judge, and SYKES and TINDER, Circuit Judges.
Wood, Chief Judge.
This extensive criminal prosecution arises out of the operations of the Latin Kings street gang in Chicago from 2000 to 2008. Fifteen highly placed gang leaders were charged with violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute, as well as the commission of other crimes. Nine of those defendants have joined in the present appeals: Luis Garcia, Felipe Zamora, Fernando King, Samuel Gutierrez, Javier Ramirez, Jose Guzman, Augustin Zambrano, Alfonso Chavez, and Vicente Garcia. We find no reversible error in either the convictions or the sentences for defendants Luis Garcia, King, Ramirez, Guzman, Zambrano, Chavez, and Vicente Garcia. Nor do we find any error in the convictions of Zamora and Gutierrez; the sentences for the latter two defendants, however, must be revisited.
The Almighty Latin Kings Nation is a notorious street gang in Chicago. During the time covered by the indictment, the Latin Kings carried out a racketeering conspiracy involving murder, attempted murder, aggravated assault, extortion, and drug trafficking. This particular case focuses on the gang's activities in Chicago's Little Village neighborhood.
The gang operated under a constitution that set forth an elaborate governing hierarchy. At the summit stood La Corona (The Crown), the title the Latin Kings chose for their highest ranking officers nationwide. According to the constitution, Coronas ensured that officers complied with gang rules, administered the gang's rules when needed, and gave final approval to all such rules. Defendant Zambrano occupied the post of Corona during the years 2000 to 2008. According to the government, Zambrano was the only active Corona in the gang nationwide during that period.
Immediately below the Corona were the Supreme Regional Incas. Each Supreme Regional Inca oversaw operations in all regions within his designated geographic area, implemented gang rules, ensured punishment when the rules were violated, and ordered retaliatory strikes against rival gangs. Defendant King was a Supreme Regional Inca from 2007 to 2008, and defendant Vicente Garcia took over King's post in 2008.
Under the Supreme Regional Inca were a series of Regional Incas, who managed operations in smaller territories. Defendants Zamora, Vicente Garcia, King, and cooperating witness Milton Shanna all held at one time or another the rank of Regional Inca. Each region was further divided into a number of sections; each section was under the control of someone called the Section Inca or just the Inca. The Regional Incas formed a crucial link between the gang's top leaders and its street-level managers and foot-soldiers. Shanna, for example, was responsible for distributing cocaine to and later collecting the sales proceeds from the Section Incas in his region, under the orders of then-Supreme Regional Inca Vicente Garcia. Section Incas provided a steady flow of information to the Regional Incas; that information then made its way up the gang's chain of command. The Regional Incas also set rules for their areas. For example, while serving as a Regional Inca, King wrote what came to be known as the Little Village Rules, which, among other things, required the Latin Kings to maintain an armed presence (" mandatory bust-out" )
every Thursday through Sunday from 10 p.m. to 3 a.m.
Other gang officers, called the Regional Enforcers, reported to the Regional Incas. Defendant Guzman and cooperating witnesses Ruben Caquias and Shanna spent some time as Regional Enforcers. As the title suggests, Regional Enforcers ensured compliance with gang rules and meted out punishment against rule-breakers. For example, they patrolled gang territory during mandatory bust-outs and administered timed beatings (known as violations) when gang rules were broken. If another gang member was assigned to inflict the " violation" on someone, the Regional Enforcers watched to be sure that the beating was conducted properly.
The Section Incas (or simply Incas) were leaders of street sections, also called " branches" or " chapters." Defendants Chavez (after October 2007), Luis Garcia, Gutierrez, and Ramirez, along with cooperating witnesses Caquias and Shanna, held this position for at least part of the relevant period. Sections were relatively small: most contained about 25 members. Incas carried out directives from those above them in the hierarchy. They ensured that the proper armed presence was maintained when required; they remitted about $200 per week from the gang's cocaine business to their superiors; and they carried out mandatory retaliatory shootings within 48 hours whenever a Latin King in a nearby neighborhood was shot by a rival. The Inca had a sectional " Casique" who served as second-in-command and as the local enforcer. Under gang rules, an Inca was fully responsible for the actions of his subordinates and would be " violated" along with the offender if one of his street-level subordinates broke the rules.
Although it would be impossible in a reasonable space to recount all of the gang's activities from 2000 to 2008, that is fortunately unnecessary. At trial, the government focused on a number of specific incidents, which we summarize here. We include further details where necessary below, as we discuss the individual defendants' appeals. Broadly speaking, the criminal activities fell into four categories: murder (including attempted murder and indiscriminate shootings); drug distribution; extortion; and violent punishments of disobedient gang members. Examples of each will suffice.
Murders and Attempted Murders .
Testimony at the trial revealed that Latin Kings regularly shot rival gang members on the orders of gang superiors; they used the terms " burns" and " missions" to describe these incidents. In the early 2000s, Vicente Garcia ordered Shanna to shoot a suspected member of the rival Two-Six gang who had been seen in a bar frequented by Latin Kings. The order was carried out: Latin Kings shot the man in the chest about five times. Around the same time, King ordered Shanna (then an Inca) to have one of his soldiers shoot other Two-Six gang members; once again, the subordinates completed the mission.
The fall of 2007 was a particularly violent period. That September, the Latin Kings carried out retaliatory drive-by shootings against members of two rival gangs, the Two-Sixes and the Latin Disciples, after defendant Gutierrez was shot. Shanna testified that Guzman ordered the five sections nearest Gutierrez's to carry out the attacks. The jury heard a recording of Guzman discussing this " burn" with Shanna; Zambrano and Vicente Garcia were present when Guzman gave the order. In October 2007, soldiers under Ramirez's command shot and killed Oberia
Pierce and wounded his companion Keith Morgan. The two victims apparently had come to Little Village to buy drugs. In a recorded conversation, Ramirez told Shanna that " some pimp" was " smoked" by his guys, and that Ramirez was hiding the shooter. Then, in November of the same year, unidentified Latin Kings shot at an SUV carrying members of a band who were trying to park in the Kings' territory. In a recorded conversation, Inca Chavez explained that the Kings shot at the car because it was speeding in Little Village. Shanna testified at the trial that the gang had standing instructions to fire at traffic violators, as they were thought to indicate a threat to the gang.
The violence continued in 2008. In January, the Latin Kings retaliated viciously after Shanna was shot by a Two-Six gang member. The victim, Jaime Galvan, was shot multiple times, once " in the dome" as the local Inca later boasted in a recorded conversation. Two other Latin Kings proceeded to beat Galvan after he was shot; he survived and testified at the trial, even though the bullet remains lodged in his head.
One way the Latin Kings made money was by selling cocaine. Evidence at the trial illustrated several occasions in 2007 and 2008 when gang leaders distributed cocaine to Incas, who were expected to sell it on the street. Vicente Garcia organized weekly distributions of seven grams of cocaine to each of the 24 Incas in Little Village; they were all supposed to return $200 from the proceeds of these sales to the gang's treasury (known as The Box) within a few days. Guzman also met with each distributing Inca. Chavez was one of the Incas who took the cocaine and later returned the required cash. Similar transactions took place throughout early 2008.
Another source of the gang's funds was extortion of a group known as the " Miqueros." The Miqueros were in the business of selling fraudulent identification documents at several locations in the Latin Kings' 26th Street Region. The Latin Kings required the Miqueros to pay a substantial " street tax" of about $2,000 to $2,500 every month for " protection." In return for the tax, the Latin Kings agreed that they would not start their own phony-document business, a commitment codified in the Little Village Rules. The evidence showed that this practice had been going on since at least 1996.
Shanna testified that as long as the Miqueros paid the tax and complied with certain restrictions, the Latin Kings refrained from harassing or punishing them. The consequences for disobeying the Latin Kings, however, were severe. In January 1998, for example, after some Miqueros failed to comply with the Latin Kings' terms, Shanna and other Latin Kings were ordered to " beat the heck out of them." After the beating, it appears that the Miqueros never again dared defy the Latin Kings.
Shanna testified that the money was collected at the behest of Vicente Garcia and Zambrano. Other evidence indicated that Zamora also collected money from the Miqueros on King's orders. The money collected from the Miqueros went directly to the gang's coffers; it was devoted to expenses such as gang member funerals and gun purchases.
The word " violation" was used by the Latin Kings to denote the prescribed punishment (usually brutal) for failure to abide by gang rules. A gang member who was " violated" was, euphemisms aside, beaten severely for a set number of minutes, normally under the supervision of the Regional Enforcer. For instance, when one person left the gang for
a time, he was beaten from head to toe for three minutes; the punishment left him with a broken rib. Sometimes the " violation" administrators used only their legs and fists, but other times they used devices such as lead pipes, hammers, or crowbars. Gang members who failed to carry out a violation with sufficient viciousness were themselves violated.
A variety of offenses could lead to a violation: leaving the gang; failing to repay a debt owed to a fellow gang member; failing to pay dues; refusing to participate in mandatory bust-outs (in other words, not helping the section maintain an armed street presence during specified hours); and refusing to carry out a retaliatory shooting. But the reason was not always so specific. On one occasion, Vicente Garcia ordered violations for people that he " deemed not worthy of being a Latin King anymore."
A vivid example comes from February 2006, when Vicente Garcia settled a fight between two sections in Little Village by ordering the violation of a man named Chongo and the murder of a member of the rival Latin Counts gang. Testimony at trial indicated that Chongo failed to carry out a retaliatory shooting. This led to the violation of Nedal Issa, the Inca of Chongo's section, whose leadership position made him responsible for Chongo's insubordination. Issa suffered two black eyes, fractured ribs, and bruises all over his body. Chongo was also violated; his ordeal was captured on a video that the jury viewed. Eventually, other Latin Kings from Issa's section carried out the retaliatory murder of the rival gang member.
In April 2008, Zambrano ordered gang members to break the hands of Latin Kings Rodolfo Salazar and Enrique Enriquez. Salazar had been dealing cocaine with a woman named Maria, who was Zambrano's girlfriend at the time. Salazar had the bad judgment to try to steal drugs and money from Maria. Zambrano passed the word along to Salazar that he had two choices: leave Maria alone or Zambrano would " have somebody bring him and whoop his ass." After Salazar and Enriquez were caught stealing from Maria, Salazar chose option two, but it was their hands rather than their backsides that suffered. On Zambrano's orders, gang member Caquias used a hammer and a landscaping brick to smash Salazar's and Enriquez's hands as a violation. After hearing that the hand-smashings had been carried out, Zambrano mused that Salazar " did that to himself." Shanna later explained that Salazar " was warned, and he still messed up, and he suffered the consequences."
The record contains many additional examples of violations, but this is enough to give a flavor of what they were and how they were used to enforce strict discipline within the gang. The Latin Kings also had a well-elaborated governance structure, reflected in the gang's manifesto, its constitution, and rules specific to the Little Village region. The manifesto set forth the Kings' national emblem, colors, flag, prayer, and salute. It included a code that governed every member. The constitution provided details about positions, ranks, leadership hierarchy, voting procedures, the adoption of new laws, and certain trial procedures. At the regional level, Little Village had a set of 25 rules, all of which had been approved by Zambrano. A couple of rules highlighted the proper use of guns; another described the mandatory bust-outs; and some rules underscored the life-and-death character of gang membership. All gang members were required to be familiar with the gang's literature.
A brief overview of the charges provides helpful context as we turn to the individual
appeals. In an 80-count superseding indictment returned on September 30, 2009, all nine appellants--as well as several others not involved in this appeal--were charged with participating in a RICO conspiracy in violation of 18 U.S.C. § 1962(d). Zambrano, Vicente Garcia, King, Gutierrez, and Zamora were also charged with conspiring to commit extortion in violation of 18 U.S.C. § 1951, and Zambrano, Vicente Garcia, and Guzman with committing assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3). Vicente Garcia and Guzman were charged with using and carrying a firearm during an assault in violation of 18 U.S.C. § 924(c). Finally, the indictment charged Vicente Garcia, Guzman, Luis Garcia, Gutierrez, Ramirez, and Chavez with conspiring to distribute cocaine in violation of 21 U.S.C. § 846, and it accused Vicente Garcia, Chavez, Gutierrez, Ramirez, and Luis Garcia of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1).
A jury found Zambrano, Vicente Garcia, Guzman, and Chavez guilty on all counts. The other five defendants pleaded guilty. The district court sentenced all nine to substantial terms in prison. Although some of the points on appeal are common to more than one appellant, for ease of exposition we address each person's arguments individually.
A. Augustin Zambrano
Four of Zambrano's arguments on appeal pertain to his conviction, and five attack his sentence. In addition, he raises several points that we can treat more summarily. With respect to his conviction, Zambrano maintains that the evidence was insufficient on the charge of conspiracy to commit extortion; that the admission of another defendant's post-arrest statement violated Zambrano's Sixth Amendment rights; that the evidence was insufficient to support the conviction for assault in aid of racketeering; and that the jury instructions on assault improperly had the effect of constructively amending the indictment. With respect to the sentence, Zambrano argues that the court exceeded the statutory maximum for each offense; that his convictions and sentences for both RICO and extortion conspiracies violated the Double Jeopardy Clause; that the sentence was based on facts not found by the jury; that the district court applied the wrong standard of proof at sentencing; and that the district court improperly applied the sentencing guidelines. Zambrano also complains (referring to Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)) that what he calls the judge's half- Pinkerton instruction violated his rights; that there is an unwarranted disparity between his sentence and those of his co-defendants; and that cumulative errors deprived him of a fair trial. We address these points in turn.
Sufficiency of the Evidence on Extortion and Constructive Amendment of Extortion Charge.
Count Ten of the indictment charged that Zambrano participated in the conspiracy " [f]rom sometime in at least 2000 and continuing until at least September 2008." This charge referred to the Latin Kings' regular shake-downs of the Miqueros. Zambrano seizes on the fact that the direct evidence of force or threatened force comes only from before 2000, the start of the conspiracy alleged in the indictment. (He also hints at arguments based on a variance in the indictment and some kind of Fifth Amendment violation, but in substance he is really attacking the sufficiency of the evidence, an argument he preserved through a motion under Federal Rule of Criminal Procedure 29.) Former Latin King and cooperating witness Shanna
testified that in 1998 or thereabouts he was twice sent to beat up some Miqueros who were not complying with their arrangement with the Latin Kings. Although Zambrano does not dispute the fact that the Miqueros made monthly payments to the Latin Kings beginning in 1997 and continuing throughout the period covered by the indictment, he insists that there is no evidence that these payments were the result of " wrongful use of actual or threatened force, violence, or fear." See 18 U.S.C. § 1951(b)(2).
The standard of review for such a challenge is highly deferential to the jury's verdict. We assess a challenge to the sufficiency of the evidence in the light most favorable to the government and will reverse a conviction " only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 132 S.Ct. 2, 3-4, 181 L.Ed.2d 311 (2011) (per curiam) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Zambrano has not cleared that high bar, because some evidence supports the finding that it was the use of actual or threatened force that inspired the Miqueros to pay the Latin Kings, not some other motivation. The evidence is circumstantial, but there is nothing wrong with circumstantial evidence. The government's evidence showed that the Miqueros made monthly payments of $2,000 to $2,500 in exchange for protection and that Latin Kings beat up non-compliant Miqueros twice in 1998. In light of the earlier beatings, the jury was entitled to conclude that the group from whom the Miqueros needed protection was the Latin Kings themselves. Zambrano suggests that the payments ensured protection from renegade Latin Kings ...