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United States v. Cardena

United States Court of Appeals, Seventh Circuit

November 18, 2016

United States of America, Plaintiff-Appellee,
Robert Cardena, Tony Sparkman, Jorge Uriarte, Hector Uriarte, and Glenn Lewellen, Defendants-Appellants.

          Argued December 11, 2015

         Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 0332 - Joan B. Gottschall, Judge.

          Before Kanne, Rovner, and Hamilton, Circuit Judges.

          Kanne, Circuit Judge.

         Chicago 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.

         Over 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 drugs.

         Although 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).

         I. Background

         This 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.

         In 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.

         The 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.

         A. Indictment

         The 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.

         The 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 conspiracy.

         Along with conspiracy charges, Defendants were also charged for their individual participation in substantive offenses of the conspiracy. We briefly describe those relevant to this appeal.

         In 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 robbery").

         The 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 ("Vega/Pizarro kidnapping").

         In 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.

         In 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.

         In 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.

         B. Trial

         Six 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 Torres.

         On 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.

         C. Sentencing

         Cardena 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.

         II. Analysis

         We turn now to the issues raised in Defendants' appeals. Defendants raise numerous distinct issues on appeal arising from both their trial and sentencings.[1] We treat each issue in turn.

         A. Dismissal of Juror 24 for Cause Defendants first challenge the district court's dismissal for cause of Juror 24.

         During 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.

         Generally, 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.").

         There 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).

         Defendants' 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, [2] but the jury was otherwise impartial, which is the circumstance we face here.[3]

         B. Rereading the Silvern Instruction

         Defendants 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.

         Before deliberating, the jury was read a modified version of the instruction[4] this court promulgated in United States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc).

         After 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, [5] 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.

         During 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 court.

         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 mistrial.

         We 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).

         The 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).

         In 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).

         With 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 Silvern instruction.

         Nor did 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 further deliberation.

         C. Failure to Hold Hearing about Crying Juror

         Defendants, 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 trial.

         No 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 issue.").

         Even if 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).

         While 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").

         To 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 deliberations." Id.

         In the 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.

         D. Government's Introduction of "False" Testimony

         Defendants Hector, Jorge, Sparkman, and Lewellen argue that the government knowingly introduced false testimony at trial, which warrants a new trial.

         Because 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).

         Undoubtedly, 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 Cir. 2011).

         1. Victoria's Testimony

         Defendants first allege that Pedro Victoria gave testimony the government knew to be false regarding Hector's involvement in the Avila kidnapping and Delatorre robbery.

         The 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.

         Thus, 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.

         Rather, 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.

         2. Vega's and Rodriguez's Testimony

         Next, 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 his kidnapping.

Vega's testimony was the following:
Q: From where you were, you could see a dead male body on the floor of the basement?
A: Yes.
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 blindfolded?
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.)

         Rodriguez, 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]?
A: No.
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.)

         According 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.

         But "[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.

         Vega 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."

         Even 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.

         E. Witnesses Brought to the Courtroom Window

         Defendants 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.

         During 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.

         The 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.

         After 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 the motion.

         Defendants 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.)

         On 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").

         The 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).

         We 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.

         It does 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.

         In 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).

         F. Lewellen's Motion to Sever

         Before 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.

         The 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 alleged.

         At the 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 ...

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