December 11, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 CR 0332 - Joan
B. Gottschall, Judge.
Kanne, Rovner, and Hamilton, Circuit Judges.
Police Department officer Glenn Lewellen arrested drug dealer
Saul Rodriguez in 1996 and eventually turned him into an
informant. By 1998, the two had established a more lucrative
arrangement: Rodriguez would collect information about local
drug dealers, and then Lewellen would make a seemingly
legitimate detention of the dealers and rob them of their
drugs and money.
the next several years, Rodriguez and Defendant Lewellen ran
a successful criminal enterprise, bringing in at least
thirteen more participants, including Defendants Hector
Uriarte ("Hector"), Jorge Uriarte
("Jorge"), Tony Sparkman, and Robert Cardena.
Robbing drug dealers eventually escalated into kidnapping
them for ransom money or even murdering them for money and
several of the members arranged plea agreements, six of the
organization's members were tried, and five were
convicted. They appealed, challenging various aspects of
their convictions, and we affirm. In addition, Defendants
Hector, Jorge, and Sparkman challenge their sentences. We
vacate those sentences and remand for resentencing in light
of Alleyne v. United States, 133 S.Ct. 2151 (2013).
case involves an extensive cast of characters engaging in
numerous criminal acts. The conspiracy's collapse
resulted in the indictment of at least fifteen individuals
and a three-month jury trial for six Defendants. Despite the
complexity of the conspiracy, investigation, and trial, each
issue raised on appeal has a discrete set of relatively
simple facts. For that reason, we will lay out the facts
relating to a particular claim at the time it is discussed.
Before turning to Defendants' arguments, however, we
offer a brief description of the crimes that brought us here.
1996, Chicago Police Department ("CPD") officer
Glenn Lewellen arrested Saul Rodriguez for marijuana
distribution, and Rodriguez agreed to become an informant.
Rodriguez was not the typical informant, however, because by
1998, his information on area drug dealers was no longer
being used for law-enforcement purposes. Instead, Rodriguez
would identify drug dealers for Lewellen, and
Lewellen-sometimes with help from Rodriguez-would rob them.
Often, Lewellen would pretend to conduct a traffic stop or
arrest and would confiscate the dealers' drugs and money
to share with Rodriguez.
venture was profitable, and it evolved to include more
members and more violent crimes to further the venture.
Between 1998 and 2009, members of the conspiracy committed at
least three murders, twenty kidnappings and robberies, and
numerous drug-trafficking offenses.
conspiracy came to an end in April 2009 when the Drug
Enforcement Agency ("DEA") filmed an attempted
robbery of 600 kilograms of cocaine from a warehouse. A
lengthy prosecution followed.
third superseding indictment, returned on January 13, 2011,
alleged two conspiracies: (1) Count 1 alleged a racketeering
conspiracy to commit murders, kidnappings, robberies, drug
trafficking, and obstruction of justice ("RICO
conspiracy") and (2) Count 13 alleged a conspiracy to
possess with intent to distribute five or more kilograms of
narcotics ("narcotics conspiracy"). Defendants were
charged with both conspiracies, with the exception of Cardena
who was only charged with participation in the narcotics
with conspiracy charges, Defendants were also charged for
their individual participation in substantive offenses of the
conspiracy. We briefly describe those relevant to this
2006, Defendants Hector, Jorge, Sparkman, and Car-dena broke
into a house in Joliet, Illinois, and stole several boxes
containing 300 kilograms of cocaine ("Joliet
Joliet cocaine belonged to a high-ranking member of the
Mexican cartel. After the cocaine was stolen, the cartel
hired Rodriguez to investigate. Rodriguez blamed rival drug
dealers Lou Vega and Francisco Pizarro. Rodriguez, Hector,
and Jorge kidnapped Pizarro and Vega and then bound,
threatened, interrogated, and tortured them to convince the
cartel that it had thoroughly investigated the cocaine theft
2007, Hector, Jorge, Sparkman, and co-conspirator Andres
Flores robbed Pedro Avila, who Rodriguez believed was hiding
$2 million in cash in his home ("Avila
kidnapping"). The group posed as police officers and
used a battering ram to break into the home. The group
threatened Avila, his wife, and children, and stole only $2,
000. Defendants Hector, Jorge, and Sparkman were also charged
with using firearms in connection with this offense.
2008, Hector, Jorge, Sparkman, and Flores kidnapped Jose
Carranza and his friend ("Carranza kidnapping").
Hector served as lookout while Sparkman kicked in
Carranza's door. Flores covered Carranza with a blanket
and held a gun to his head, while Jorge did the same with
Carranza's friend. The group found and stole only $2, 000
in cash. Defendants Hector, Jorge, and Sparkman were also
charged with using firearms during this offense.
April 2009, the crew attempted to steal 600 kilograms of
cocaine from a warehouse in Channahon, Illinois
("Chan-nahon robbery"). The DEA filmed the robbery
and arrested most of the co-conspirators at that time.
Defendants went to trial-Lewellen, Hector, Jorge, Sparkman,
Cardena, and Manuel Uriarte. The government's
case-in-chief spanned eleven weeks with more than 100
witnesses, including the testimony of cooperating
co-conspirators Rodriguez, Flores, Fares Umar, Lisette and
David Vene-gas, Jorge Lopez, Pedro Victoria, and Andres
January 31, 2012, the jury returned its verdict. The jury
acquitted Manuel Uriarte on two counts and could not reach a
verdict on count 1; he subsequently pled guilty to count 1
and is not involved in this appeal. Defendants Lewellen,
Hector, Jorge, Sparkman, and Cardena were each convicted on
some or all of the charges against them, and they appeal.
and Lewellen, who do not challenge their terms of
imprisonment, were sentenced to 120 months and 216 months,
respectively. Because Hector, Jorge, and Sparkman were
convicted of two 18 U.S.C. § 924(c) offenses each, they
were subject to a mandatory minimum of 40 years'
imprisonment. The district court sentenced Sparkman to the
mandatory minimum of 504 months; Jorge to a below-guidelines
sentence of 720 months; and Hector to a below-guidelines
sentence of 600 months.
now to the issues raised in Defendants' appeals.
Defendants raise numerous distinct issues on appeal arising
from both their trial and sentencings. We treat each
issue in turn.
Dismissal of Juror 24 for Cause Defendants first
challenge the district court's dismissal for cause of
voir dire, the district court asked if any juror had ever
been arrested. Juror 24 did not raise his hand. Later, a
police officer, unbeknownst to the government, ran a criminal
history check on Juror 24 and found that he had been arrested
nine times. The district court then asked Juror 24 if he had
ever been arrested, but he only disclosed one arrest for
marijuana. The government then moved to dismiss Juror 24 for
cause. The district court asked the government to confirm the
accuracy of the criminal history report before it would grant
the motion. The report was correct, so the district court
dismissed Juror 24 for cause because of his false statements.
we review a district court's ruling on for-cause
challenges to jurors for an abuse of discretion. United
States v. Fletcher, 634 F.3d 395, 409 (7th Cir. 2011).
We need not even consider whether the district court abused
its discretion, however, because Defendants have not pointed
to any legally cognizable harm. See Marshall v. City of
Chicago, 762 F.3d 573, 578 (7th Cir. 2014) ("[E]ven
quoting the standard of review is getting ahead of ourselves.
[The defendant] has suggested no remotely cognizable legal
harm to support this argument.").
is "no legally cognizable right to have any particular
juror participate in [a defendant's] case."
United States v. Polichemi, 201 F.3d 858, 865 (7th
Cir. 2000). We have repeatedly rejected the challenge
Defendants raise, explaining:
[The defendant's] argument that one prospective juror who
did not sit on his jury would have been unbiased
does not establish a violation of his constitutional rights
to due process and an impartial jury; these rights are
satisfied as long as a defendant is tried before a
"qualified jury composed of individuals not
challengeable for cause."
United States v. Russell, 463 F.App'x 585,
586-87 (7th Cir. 2012) (quoting Rivera v. Illinois,
556 U.S. 148, 157 (2009)); see also United States v.
Osigbade, 195 F.3d 900, 905 (7th Cir. 1999).
reliance on cases where a district court denied a
for-cause challenge is misplaced because such a denial may
have resulted in the seating of a juror who is actually
partial, thereby affecting the impartiality of the jury.
There are no such concerns where a for-cause challenge may
have been mistakenly granted,  but the jury was
otherwise impartial, which is the circumstance we face
Rereading the Silvern Instruction
next argue that the district court abused its discretion when
it chose to reread the Silvern instruction instead
of declaring a mistrial after the jury indicated that it was
unsure if it could reach a verdict.
deliberating, the jury was read a modified version of the
instruction this court promulgated in United
States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en
twenty-three hours of deliberation, the district court
received a note from the jury that said: "Dear Judge, we
have been talking about all the evidence, and unfortunately
believe that there are some counts we can't agree on.
What might our next step be? We have voted, discussed, voted
over and over again. Some of us stand very strong in our
opinions." (Trial Tr., vol. 32,  5432.) In light of the note
from the jury Defendants moved for a mistrial, but the
government requested that the district court reread the
Silvern instruction instead.
the discussion about the jury's note, the district court
disclosed that the previous day a court security officer had
told the court that "one of the jurors [was] near tears
because she's afraid she's going to lose her job if
these deliberations don't come to an end."
(Id. at 5433.) The court instructed the officer to
tell the jury that if there is "any juror who needs me
to deal with an employer, they should bring their concerns to
me." (Id. at 5441.) No juror approached the
defense requested, and the district court agreed, to take
this fact into consideration when deciding whether to reread
the Silvern instruction. The district court found it
appropriate to reread the instruction instead of declaring a
review a district court's decision to read (or reread)
the Silvern instruction for an abuse of discretion.
United States v. Sanders, 962 F.2d 660, 676 (7th
Cir. 1992). The Silvern instruction may be reread
"to the jury after deliberations reach a deadlock,
provided that a supplemental instruction is deemed
necessary." United States v. Collins, 223 F.3d
502, 509 (7th Cir. 2000) (internal quotation marks omitted).
At bottom, "[t]he relevant inquiry, under
Silvern, ... is whether the court's
communications pressured the jury to surrender their honest
opinions for the mere purpose of returning a verdict."
United States v. Kramer, 955 F.2d 479, 489 (7th Cir.
1992) (internal quotation marks omitted).
content of the instruction is not inherently coercive.
Sanders, 962 F.2d at 676; United States v.
Beverly, 913 F.2d 337, 352 (7th Cir. 1990). But,
Defendants argue, it was the context in which the instruction
was reread that led to coercion. In this case, the jury sent
one deadlock note after only three days of deliberation in a
trial that had lasted eleven weeks and had six Defendants and
more than 100 witnesses. In such a situation, the district
court did not abuse its discretion in rereading the
Silvern instruction. See, e.g., Sanders,
962 F.2d at 665-66, 676 (no error in two rereadings of
Silvern instruction after two-month, multi-defendant
trial where jury had only deliberated for two days but one
juror was refusing to participate).
addition, the jury did not return its verdict until five days
after the court reread the Silvern instruction, and
it did not convict all Defendants of all counts, indicating
that rereading of the instruction did not pressure jurors to
"surrender their honest opinions for the mere purpose of
returning a verdict." Kramer, 955 F.2d at 489
(internal quotation marks omitted).
respect to the crying juror, it is quite speculative to infer
that the juror felt coerced to agree. No juror came forward
after the district court requested the jury be informed that
anyone having trouble with an employer should discuss the
issue with the court. It is more likely that whatever
frustration plagued that juror had been resolved, or else the
district court would have been informed. Accordingly, the
district court did not abuse its discretion in rereading the
the district court abuse its discretion in refusing to grant
a mistrial. A district court has broad discretion to deny a
motion for a mistrial, and we only review for an abuse of
that discretion. Beverly, 913 F.2d at 351. Again,
deliberations had only gone on for three days after a trial
that had lasted almost three months. The jury had only sent
one note to the court expressing its inability to agree. The
district court responded appropriately by asking for jurors
to come forward if there were problems with work and
rereading the Silvern instruction to encourage
Failure to Hold Hearing about Crying Juror
relying on Remmer v. United States, 347 U.S. 227
(1954), also contend that the district court abused its
discretion when it did not hold a hearing to assess whether
the crying juror's employment pressures were an
extraneous jury influence that violated their right to a fair
Defendant requested a hearing to evaluate the upset
juror's situation, nor did any Defendant object to the
district court's solution, which was to request that any
juror having trouble with work bring it to the court's
attention. A failure to object, coupled with acquiescence in
the district court's solution, could constitute waiver of
a hearing. See United States v. Verkuilen, 690 F.2d
648, 658 (7th Cir. 1982) ("Defense counsel's express
acquiescence to the manner in which the court handled the
jury taint question clearly amounts to a waiver of the
not waived, our review is made particularly difficult in
light of the fact that Defendants did not request a hearing.
See United States v. Walker, 160 F.3d 1078, 1083
(6th Cir. 1998) ("[A] defendant who waits until appeal
to request a [Remmer] hearing bears a heavy burden,
since the defendant has thereby effectively deprived this
court of any basis for concluding that a hearing would be
necessary, and asks us to presume that the district court
would not have acceded to such a request, and would have done
so for erroneous reasons."). Defendants' claim that
the district court erred in failing to sua sponte order a
Remmer hearing cannot survive the heavy burden of
plain-error review, which requires an error that is
plain and affects the defendant's substantial
rights. Fed. R. Crim. P. 52(b); United States v.
Marcus, 560 U.S. 258, 262 (2010).
it is true that extraneous influences on a juror can give
rise to a violation of a defendant's right to an
impartial jury Wisehart v. Davis, 408 F.3d 321, 326
(7th Cir. 2005), not all extraneous influences are
presumptively prejudicial such that they require a
Remmer hearing. See United States v.
Warner, 498 F.3d 666, 680 (7th Cir. 2007)
("Sometimes the circumstances are such that the
Remmer presumption does not even apply").
invoke the Remmer presumption, "the extraneous
communication to the juror must be of a character that
creates a reasonable suspicion that further inquiry is
necessary to determine whether the defendant was deprived of
his right to an impartial jury." Wisehart, 408
F.3d at 326. "How much inquiry is necessary (perhaps
very little, or even none) depends on how likely was the
extraneous communication to contaminate the jury's
present case, any extraneous communication was not "of a
character that creates a reasonable suspicion that further
inquiry is necessary." Id. The juror was near
tears because of concern about losing her job; nothing about
the communication was related to the case or to influence a
vote. This was not a "purposeful intrusion into the
sanctity of the juror's domain" to which the
Remmer presumption applies. Schaff v.
Snyder, 190 F.3d 513, 534 (7th Cir. 1999). In addition,
the district court relayed to the jurors that if there were
problems with an employer, they should alert the district
court. No juror came forward, indicating that any extraneous
communication was no longer affecting the juror. And finally,
the district court disclosed the situation and its solution
to both parties, at which point Defendants did not request a
hearing. Those facts are a far cry from Remmer where
the extraneous communication was an offer to bribe a juror,
and the court and prosecutor resolved the situation ex
parte. 347 U.S. at 228-29.
Government's Introduction of "False"
Hector, Jorge, Sparkman, and Lewellen argue that the
government knowingly introduced false testimony at trial,
which warrants a new trial.
Defendants did not object at trial to the government's
alleged presentation of knowingly false testimony, our review
is for plain error. United States v. Peak, 856 F.2d
825, 830-31 (7th Cir. 1988).
it violates due process for the government to obtain a
conviction by the knowing use of perjured testimony.
Napue v. Illinois, 360 U.S. 264, 269 (1959);
Schaff, 190 F.3d at 530. But, to receive a new
trial, the defendant must show "(1) that there was false
testimony; (2) that the government knew or should have known
it was false; and (3) that there is a likelihood that the
false testimony affected the judgment of the jury"
United States v. Freeman, 650 F.3d 673, 678 (7th
first allege that Pedro Victoria gave testimony the
government knew to be false regarding Hector's
involvement in the Avila kidnapping and Delatorre robbery.
false testimony at issue is Victoria's trial testimony
that he gave the government information in January, November,
and December 2008 that Hector was involved in the Avila
kidnapping. But Officer Healy testified that he did not
recall Victoria identifying the Uriartes as being involved
until his grand-jury testimony in February 2010.
Victoria's "false" testimony relates to the
dates on which he informed the government that
Hector was involved in the Avila kidnapping. But, "[t]he
alleged perjured testimony must bear a direct relationship to
the defendant's guilt or innocence." Shasteen v.
Saver, 252 F.3d 929, 933 (7th Cir. 2001) (internal
quotation marks omitted). The date on which Victoria
told the government that Hector was involved in the Avila
kidnapping has nothing to do with whether Hector was involved
or not, and so any falsehood does not bear on Hector's
guilt or innocence.
the argument that the government presented Victoria's
false testimony appears to be an attempt to re-weigh the
credibility of Victoria's testimony. Their
contention is that when Rodriguez was placed in the
Metropolitan Correctional Center in February 2009 along with
Victoria and other government witnesses, Rodriguez coerced or
attempted to coerce those witnesses to corroborate his story
so that he could get a better plea deal. But the jury was
fully apprised of the fact that Rodriguez had engaged in such
conduct. Defendants cross-examined Victoria extensively about
the dates, and the jury also heard Officer Healy's
testimony that Victoria did not identify Hector as involved
until February 2010. Defendants were able to argue to the
jury the implication that Rodriguez told Victoria to testify
that Hector was involved, an implication it rejected by
convicting Hector. "When a jury has chosen to credit
crucial testimony with full knowledge of the many faults of
the witness providing it, we have no basis to interfere,
" United States v. Alcantar, 83 F.3d 185, 189
(7th Cir. 1996), and we decline to do so here.
Vega's and Rodriguez's Testimony
Defendants argue that the government presented false
testimony from either Rodriguez or Vega over whether there
was a dead body in the basement where Vega was held during
Vega's testimony was the following:
Q: From where you were, you could see a dead male body on the
floor of the basement?
Q: You were able to look at that body for an hour or so
because you were-while you were in the basement you were not
A: Yes. ...
Q: Based on the clothes and the build of the body, you
believed that the body was Mauricio's.
A: Yes. (Trial Tr. 2474-75.)
however, testified to the following:
Q: ... Let me ask you this: Was there a dead body on the
floor by this body shop guy [Vega]?
Q: Was there ever a dead body in Rogelio Corral's home?
A: No. ...
Q: Was [Mauricio's] dead body lying on the floor of
Rogelio Corral's home?
A: There was no dead body.
(Id. at 3566-67.)
to Defendants, one of the two had to be lying about whether
there was a dead body, and therefore, the government
knowingly presented false testimony.
"[m]ere inconsistencies in testimony by government
witnesses do not establish the government's knowing use
of false testimony." United States v. Verser,
916 F.2d 1268, 1271 (7th Cir. 1990) (internal quotation marks
omitted). The difference in testimony between the two
witnesses as to whether Mauricio's dead body was in the
basement does not establish that either's testimony was
deliberately false, rather than a difference in
personal knowledge or perception.
only viewed the body for an hour from a distance during a
stressful kidnapping. Rodriguez, on the other hand, denied
that there ever was a dead body in the house. Perhaps there
was an unconscious body or perhaps it was just a pile of
clothing that resembled a body. There are countless
possibilities that could explain why the two witnesses had
different recollections, and there is no evidence the
government "knew" one of the witnesses'
descriptions to be "false."
assuming-which is quite a large assumption-that the
inconsistency between Rodriguez and Vega's testimony
amounts to the government's knowing use of false
testimony the alleged perjured testimony does not relate to
Defendants' guilt or innocence. Shasteen, 252
F.3d at 933. There was no charge in this case related to
Mauricio's murder, so any "false testimony"
that may have resulted over whether his dead body was in the
basement has no bearing on whether a particular Defendant was
involved in Vega's kidnapping. Defendants do not explain
how the alleged "false testimony" about whether or
not there was a dead body in the basement prejudiced them,
and so we decline to grant a new trial on those grounds.
Witnesses Brought to the Courtroom Window
Hector, Jorge, Sparkman, and Lewellen next argue that a new
trial should be granted because witnesses were brought to the
courtroom window for purposes of making identifications prior
to testifying in violation of Defendants' Sixth Amendment
right to counsel.
trial, Defendants learned that the government was having
agents bring witnesses to the courtroom window to see if they
could identify Defendants. Defendants brought the practice to
the attention of the court. In response, the government said
the practice had only been used for witnesses "who have
had social and business relationships with these defendants
for months and years." (Trial Tr. 2325.) The government
also disclosed that Salvador Hernandez, a witness who had not
yet testified, was asked to look through the courtroom window
and said he did not recognize anyone despite having
previously identified the Uriartes in pictures.
district court ordered that the practice stop. It also
permitted the defense to cross-examine Hernandez about his
inability to identify any Defendant through the window.
Later, the government sent a letter to the defense in which
it disclosed the witnesses who were asked to make
identifications through the courtroom window. Defendants did
nothing further with the information.
the verdicts, Lewellen and Jorge moved for a new trial,
arguing that the identifications violated due process. U.S.
Const, amend. V. The district court, after a hearing, denied
did not raise the argument that the identifications violated
their Sixth Amendment right to counsel until October 21,
2012. On that date, Jorge filed a post-trial "list of
issues [Defendant] wishes to raise related to his trial and
conviction." (R. 1051 at 1.) The list described the
identification procedure and called it "an
impermissible, post-indictment show-up. ..." citing
United States v. Wade, 388 U.S. 218 (1967), and
Gilbert v. California, 388 U.S. 263 (1967).
(Id. at 4.)
appeal, Defendants appear to forfeit any argument that the
procedure violated due process and only pursue the distinct
argument that the identification violated the Sixth
Amendment. Because Defendants did not make a contemporaneous
objection on Sixth Amendment grounds, we will review for
plain error. See, e.g., United States v. Bell, 624
F.3d 803, 808 (7th Cir. 2010) (plain-error review where
argument on appeal "rests on different grounds").
Sixth Amendment right to counsel requires the presence of
counsel at any "critical stage of the prosecution."
Wade, 388 U.S. at 237. There appears to be a circuit
split on the question of whether permitting a witness to
identify the defendant in the courtroom prior to testifying
violates the Sixth Amendment. Compare United States v.
Roth, 430 F.2d 1137, 1140-41 (2d Cir. 1970) (extending
Wade to courtroom walkthrough of witness) and
Cannon v. Alabama, 558 F.2d 1211, 1217 (5th Cir. 1977)
(applying Wade where officer asked witness to look
through courtroom window), with United States v.
Montgomery, 150 F.3d 983, 994-95 (9th Cir. 1998) (not
extending Wade to identification through courtroom
window because it was a "non-adversarial"
identification not requiring assistance of counsel).
decline to wade into the circuit split, however, because any
error in allowing witnesses to look through the courtroom
window to identify Defendants could not have prejudiced them
because the witnesses had an "independent source"
for their identification. See Gilbert, 388 U.S. at
272. The only witnesses that had testified by the time the
government's practice was disclosed were co-conspirators
or business associates who had repeated interactions with
Defendants. The only victim that looked through the
courtroom window, Hernandez, did not make an in-court
identification and was cross-examined extensively about the
courtroom-window practice. Therefore Defendants have not
shown that they were prejudiced by any error the government
committed by bringing witnesses to the courtroom window.
not go unnoticed that the government's practice of
bringing witnesses to the courtroom window before testifying
appears to be a subversion of the long-standing tradition
that a witness identify the defendant in the courtroom on the
witness stand in front of the jury and counsel.
fact, in-court identifications are not subject to due-process
concerns of suggestiveness because "the jury is
in the unique position of observing the entire identification
procedure, and it may weigh the accuracy of the
identification accordingly." United States v.
Recendiz, 557 F.3d 511, 526 (7th Cir. 2009). The
government flouted that tradition by conducting in-court
identification dress rehearsals without the procedural
protection of the jury's and counsel's gaze.
Nevertheless, we do not find that in this case the practice
prejudiced Defendants or "seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings." United States v. Olano, 507 U.S.
725, 736 (1993) (internal quotation marks omitted).
Lewellen's Motion to Sever
trial, Lewellen moved to sever his trial (or at least the
murder-related counts) from the other Defendants, arguing
that joinder was improper. Lewellen argued that because he
did not participate or even know about the murders and did
not have a relationship with the alleged murderers, he could
not have "participated in the same act or
transaction" with them. Fed. R. Crim. P. 8. In addition,
he contended that he would be unfairly prejudiced by the
government's introduction of evidence of murder because
he was not alleged to have participated in murder. Fed. R.
Crim. P. 14.
district court denied Lewellen's motion on both grounds,
concluding that because the government had alleged a RICO
conspiracy, there was no requirement that every Defendant
know each other or have personally participated in each act
close of evidence, Lewellen filed a motion alleging that the
evidence was insufficient to sustain a conviction on the RICO
counts and the narcotics conspiracy counts. Lewellen did not,
however, renew his motion to sever at that time. After he was
convicted of the narcotics conspiracy counts but not
convicted of the RICO conspiracy, Lewellen ...