U.S. v. Olson
| Citation | 450 F.3d 655 |
| Decision Date | 12 May 2006 |
| Docket Number | No. 01-2065.,No. 01-1949.,No. 01-1772.,No. 01-1800.,No. 01-1891.,01-1772.,01-1800.,01-1891.,01-1949.,01-2065. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry OLSON, also known as Oreo; Andrew Acosta, also known as BK; Antonio Mendez, also known as Spa; Pedro Martinez, also known as Pistol Pete; and Wilfredo Vasquez, also known as Pito, also known as Pete, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Karine Moreno-Taxman (argued), Richard G. Frohling (argued), Office of the United States Attorney, Milwaukee, WI, for U.S.
Cristina D. Hernandez-Malaby (argued), Quarles & Brady, Paul E. Benson, Jonathan C. Wertz (argued), Michael Best & Friedrich, Milwaukee, WI, for Larry Olson.
Michael J. Gonring, Quarles & Brady, Milwaukee, WI, for Andrew Acosta.
Kent R. Carlson, Carlson & Associates, Chicago, IL, for Antonio Mendez.
Marian C. Haney, Matthew C. Sostrin (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Pedro Martinez.
James D. Dasso, Kelly L. Koeppl (argued), Foley & Lardner, Chicago, IL, for Wilfredo Vasquez.
Before RIPPLE, ROVNER and SYKES, Circuit Judges.
Five defendants appeal their various convictions for racketeering, racketeering conspiracy, conspiracy to distribute controlled substances, murder and drug trafficking. Four of the defendants were sentenced to life imprisonment and one received a prison term of 262 months. All of the charged conduct arises out of the defendants' participation in the Milwaukee Chapter of the street gang known as the Almighty Latin King Nation ("Latin Kings"). All five defendants also appeal their sentences. We affirm the convictions of all five defendants, and order a limited remand of the sentences of four defendants. For the fifth defendant, we vacate the sentence and remand for resentencing.
The Latin Kings are a national criminal organization (often called the "Nation") based in Chicago, with chapters in many states. The chapters follow a written Constitution and Manifesto (collectively, the "Manifesto") that set forth the rules for membership and a code of conduct to which members must adhere. The Manifesto describes, among other things, the hierarchy that rules the national and local chapters of the organization, the colors and symbols that are to be worn and displayed by members, and certain hand gestures that indicate allegiance to the group. A five-pointed crown is the national emblem of the Latin Kings; black and gold are the official colors of the group. According to the Manifesto, a fist on the heart is the national salute, a gesture meaning, "I die for you." Another Latin Kings gesture known as "the crown" involves displaying the fingers of one hand in a configuration that resembles a crown. The Latin Kings have a national flag, several official prayers, and a set of trial procedures to be used when a member commits an offense. The Latin Kings code of honor denies membership to anyone who has killed a member of the group or killed a relative of a member. The Manifesto also ostensibly excludes as members rapists and men who are addicted to heroin.
On the national level, the Latin Kings are led by an executive committee known as the Crown. The Crown is headed by the Sun-King, a leader chosen by the Crown as a whole. The Crown has the authority to make laws for the entire Latin Kings organization, which is further subdivided into chapters. Each chapter is led by an Inca who has the authority to make rules for his own chapter but not for the Nation. So long as he abides by the Nation's laws, the Inca has absolute authority over his chapter and also bears responsibility for the actions of his chapter. Next in command at the chapter level is the Cacique (also called the Casinca), whose duty is to make certain that the Inca's orders are carried out. The Cacique takes on the Inca's role if the Inca is imprisoned or dies, although the Inca retains ultimate authority if his absence is due to imprisonment. The Inca and Cacique are elected by the members of the chapter. Each chapter also has an Enforcer, a Treasurer and a Secretary, each appointed by the Inca and Cacique. The Enforcer is in charge of "security" for every member of the chapter and ensures that members obey the Nation laws and the orders of the Inca and Cacique. Any member who publicly discredits the Inca or Cacique may be charged with conspiracy and treason. Latin Kings may not wear anything that can be construed as being an emblem of another organization. Members are admonished to protect the lives and reputations of all other Nation members, not to discuss Nation business with outsiders, and not to submit to lie detector tests. The Nation is apparently wary of the press but not entirely opposed to publicity; one rule forbids giving press interviews on Nation business without prior approval. According to the Manifesto, any member who cooperates with the police will be expelled from the group. In practice, that expulsion invariably is accompanied by beatings (called "violations" in Latin Kings parlance) and is sometimes accomplished by murder. The Manifesto also mandates that "No King shall stand idle when another King is in need of assistance." There are other rules and other positions in the hierarchy; we have described only those parts of the Manifesto necessary to understand the issues in this case. In addition to the rules recorded in the Manifesto, a number of unwritten rules also came into play in this case. We will address these as they become relevant to the issues.
The Milwaukee Chapter began operations in the mid-1980s and eventually grew large enough to control a large territory on Milwaukee's south side. The Milwaukee Chapter was, at times, divided into smaller geographically-based territories known as the Kagel Kings, the 23rd Street Kings, the Sawyer Kings and the 15th Street Kings. Within the Kagel Kings was a younger group known as the Junior Kings. The Milwaukee Chapter employed a city-wide Crown Council, with the chain of command continuing above the Inca. A regional Jefe and Corona reported directly to national leaders in Chicago. All of the defendants in this case were members of the Latin Kings in Milwaukee. Pedro Martinez ("Martinez") was the Inca of the Kagel Kings beginning in 1991 or 1992. Andrew Acosta ("Acosta") served as Cacique and Enforcer under Martinez and as Enforcer under a different Inca, Ray Rivera.1 Wilfredo Vasquez ("Vasquez") led the Junior Kings. Antonio Mendez ("Mendez") was a member of the Latin Kings as a result of a merger between the Latin Kings and the Nasty Boys, the gang that Mendez joined initially. After his incarceration in 1993, Mendez became the Acting Chief Enforcer of a prison chapter of the Latin Kings. Olson was a member of the Junior Kings and later the Kagel Kings. He did not hold a particular rank.
The five defendants, together with twenty-six other Latin Kings, were charged in a Second Superseding Indictment with a variety of crimes. Count I alleged that Acosta, Martinez, Mendez, Vasquez and others conducted and participated in the conduct of the affairs of the Latin Kings through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c). The indictment alleged sixty-seven underlying predicate offenses, including murders, robberies, kidnappings, arson, intimidation, drug trafficking and witness tampering. Many of the original thirty-one defendants resolved their cases before trial, reducing the number of predicate acts that remained in dispute at the time of trial. Moreover, the issues raised by these remaining five defendants implicate only a subset of the remaining acts presented at trial; to keep the facts manageable, we will detail only those predicate acts that play a part in the defendants' appeals. Acosta and Martinez were charged with Racketeering Act 8 ("Act 8"), which was divided into three subparts. Act 8(a) alleged conspiracy to murder Angelique Morales; Act 8(b) alleged the murder of Angelique Morales on January 23, 1994 and Act 8(c) alleged the attempted murder of Jennifer Burzynski on January 23, 1994. Racketeering Act 4 alleged that Mendez murdered Jenna Gonzales in May 1993. Count II alleged that all five defendants (and others) engaged in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). Count III alleged that Acosta, Martinez, Olson, Vasquez and others conspired to distribute and possess with intent to distribute controlled substances, including cocaine, cocaine base and marijuana, in violation of 21 U.S.C. §§ 841 and 846. Count IV charged Mendez with the murder of Jenna Gonzales for the purpose of maintaining his position with the Latin Kings, in violation of 18 U.S.C. § 1959. Count VIII charged Acosta with possession with intent to distribute a large quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1). Count X charged Vasquez with marijuana distribution, in violation of 21 U.S.C. § 841(a)(1). The jury returned a guilty verdict on all counts. As for the racketeering acts alleged, the jury found that the government had proved the acts we have already listed (Acts 4 and 8) as well as a variety of crimes involving arson, conspiracies to murder, attempts to murder, drug possession and distribution, kidnappings, witness tampering, and solicitation of murder. The dates of these various criminal acts spanned approximately from January 1987 through April 1999. The district court sentenced Olson to 262 months' imprisonment; Acosta, Mendez, Martinez and Vasquez all received sentences of life in prison.
In their appeals, the defendants jointly raise two challenges to the sufficiency of the evidence and one challenge to sentencing. First, for the racketeering counts, they contend that the government failed to prove that the Latin Kings were a single, ongoing enterprise during the time...
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