842 F.3d 959 (7th Cir. 2016), 12-3680, United States v. Cardena

Docket Nº:12-3680, 12-3683, 12-3747, 13-1374, 13-2321
Citation:842 F.3d 959
Opinion Judge:KANNE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT CARDENA, TONY SPARKMAN, JORGE URIARTE, HECTOR URIARTE, and GLENN LEWELLEN, Defendants-Appellants
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee (1:09-cr-00332-11): Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL. For ROBERT CARDENA, Defendant - Appellant (1:09-cr-00332-11): Heather L. Winslow, Attorney, Chicago, IL. For UNITED STATES OF AMERICA, Plainti...
Judge Panel:Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
Case Date:November 18, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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842 F.3d 959 (7th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ROBERT CARDENA, TONY SPARKMAN, JORGE URIARTE, HECTOR URIARTE, and GLENN LEWELLEN, Defendants-Appellants

Nos. 12-3680, 12-3683, 12-3747, 13-1374, 13-2321

United States Court of Appeals, Seventh Circuit

November 18, 2016

Argued December 11, 2015

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

For UNITED STATES OF AMERICA, Plaintiff - Appellee (1:09-cr-00332-11): Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For ROBERT CARDENA, Defendant - Appellant (1:09-cr-00332-11): Heather L. Winslow, Attorney, Chicago, IL.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (1:09-cr-00332-7): Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For TONY SPARKMAN, also known as BLACK, also known as BIG BLACK, also known as ANTHONY SPARKMAN, Defendant - Appellant (1:09-cr-00332-7): Andrew Gable, Attorney, Chicago, IL.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (1:09-cr-00332-4): Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For JORGE URIARTE, also known as LEFTY, Defendant - Appellant (1:09-cr-00332-4): John M. Beal, Attorney, JOHN M. BEAL, ATTORNEY AT LAW, Chicago, IL.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (1:09-cr-00332-3): Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For HECTOR URIARTE, Defendant - Appellant (1:09-cr-00332-3): James Leighton O'Connell-Miller, Attorney, HART & MILLER LLC, Chicago, IL.

For UNITED STATES OF AMERICA, Plaintiff - Appellee(1:09-cr-00332-2): Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL .

For GLENN LEWELLEN, Defendant - Appellant (1:09-cr-00332-2): Richard H. McLeese, Attorney, Chicago, IL.

Before KANNE, ROVNER, and HAMILTON, Circuit Judges.

OPINION

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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, 186 L.Ed.2d 314 (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

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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 Cardena 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 (" Channahon 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 Venegas, 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

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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...

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