U.S. v. Benabe

• Decision Date: 26 October 2011
• Docket Number: 09–1224,09–1225,09–1226,09–1227,Nos. 09–1190,09–1251.,s. 09–1190
• Citation: 654 F.3d 753
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Bolivar BENABE, Julian Salazar, Juan Juarez, Christian Guzman, Stephen Susinka, and Fernando Delatorre, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

654 F.3d 753

UNITED STATES of America, Plaintiff–Appellee,

v.Bolivar BENABE, Julian Salazar, Juan Juarez, Christian Guzman, Stephen Susinka, and Fernando Delatorre, Defendants–Appellants.

Nos. 09–1190

09–1224

09–1225

09–1226

09–1227

09–1251.

United States Court of Appeals, Seventh Circuit.

Argued March 28, 2011.Decided Aug. 18, 2011.Rehearing and Rehearing En Banc Denied Oct. 26, 2011.

Stuart D. Fullerton (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.John M. Beal (argued), Attorney, John M. Beal, Attorney at Law, Chicago, IL, for Defendant–Appellant in No. 09–1190.Scott J. Frankel, Attorney, Frankel & Cohen, Chicago, IL, for Defendant–Appellant in No. 09–1224.Stephen E. Eberhardt, Attorney, Tinley Park, IL, for Defendant–Appellant in No. 09–1225.James M. Falvey, Attorney, Chicago, IL, for Defendant–Appellant in No. 09–1226.Stephen Susinka, Federal Correctional Institution, Pekin, IL, pro se in No. 09–1227.Kent R. Carlson (argued), Attorney, Carlson & Associates, Chicago, IL, for Defendant–Appellant in No. 09–1251.Before KANNE, SYKES, and HAMILTON, Circuit Judges.HAMILTON, Circuit Judge.

The Insane Deuces was a street gang engaged in a long-running conspiracy involving deadly violence and drug distribution in northern Illinois. In 2006, a grand jury indicted sixteen individuals involved in the gang for conspiracy under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and related charges of murder, conspiracy to commit murder, assault with a dangerous weapon, drug distribution, conspiracy to distribute drugs, and unlawful possession of firearms. One defendant named in the indictment was not apprehended and remains a fugitive. Another pled guilty. The case against the other fourteen was severed into two trials. The appeals addressed in this opinion stem from the first trial. A second set of appeals stems from the second trial. Our opinion in that case, also released today, is reported as United States v. Morales, et al., 655 F.3d 608 (7th Cir.2011).

Seven defendants were tried in the first trial. Six were found guilty and appeal their convictions.¹ They are Bolivar Benabe, Julian Salazar, Juan Juarez, Christian Guzman, Stephen Susinka, and Fernando Delatorre. The trial of these appellants began on February 6, 2008, and ran through the return of the special RICO verdicts and forfeiture verdicts on April 23, 2008. Over the course of several weeks the government presented and the jury heard evidence that in 2002 alone, the Insane Deuces committed four murders, eleven attempted murders, two solicitations to commit murder, and multiple other shootings. The evidence was presented through eyewitness testimony, the testimony of cooperating witnesses, recorded co-conspirator statements, and ballistics evidence. Eyewitnesses who were not in the gang identified the shooters in three murders and/or attempted murders proven at trial, including the identification of defendant Guzman as the shooter in a July 18, 2002 attempted murder and the August 11, 2002 murder of David Lazcano. Five former Insane Deuces testified against the defendants, describing for the jury the gang's structure, leadership, and membership, its rules and regulations, and providing horrific details of the murders and attempted murders committed by the Insane Deuces. Through search warrants, arrests, or cooperation, the government recovered firearms used in eleven of the sixteen murders and attempted murders presented to the jury at trial, directly linking the Insane Deuces to those shootings.

All six of the defendants were convicted of RICO conspiracy, 18 U.S.C. § 1962(d) (Count 1 of the Second Superceding Indictment). Delatorre and Guzman were convicted of murder in aid of racketeering activity, 18 U.S.C. § 1959(a)(1) (Count 2), and Juarez and Salazar were convicted of conspiracy to commit murder in aid of racketeering, 18 U.S.C. § 1959(a)(5) (Counts 3 (Salazar) and 4 (Juarez and Salazar)). Delatorre, Benabe, Juarez, and Salazar were convicted of conspiracy to distribute controlled substances, 21 U.S.C. § 846 (Count 9).² Delatorre was also convicted of assault with a dangerous weapon in aid of racketeering activity, 18 U.S.C. § 1959(a)(3) (Count 5),³ murder in aid of racketeering activity, 18 U.S.C. § 1959(a)(1) (Counts 6 and 7), distribution of crack cocaine, 21 U.S.C. § 841(a)(1) (Count 12), and possession of a firearm with an obliterated serial number, 18 U.S.C. § 922(k) (Count 13). After a second round of deliberations, the jury returned a special RICO verdict assigning responsibility for four murders that were charged in Paragraphs 15, 16, 19, and 20 of Count 1. The jury also returned a finding with respect to Delatorre and Benabe that eighteen firearms be forfeited.⁴

Following denial of the defendants' post-trial motions, the court sentenced Delatorre, Benabe, Juarez, Salazar and Guzman to life imprisonment. Susinka was sentenced to twenty years in prison. All defendants appeal their convictions; Susinka also appeals his sentence.

The defendants' appeals present a host of issues. We address many of those issues in a separate unpublished order issued today.⁵ We address in this opinion several issues for which a published opinion may be useful: (1) the district court's decision to try the case by an anonymous jury; (2) the district court's decision to remove defendants Delatorre and Benabe from the courtroom upon their refusal to assure the court on the eve of trial that they would refrain from inappropriate outbursts in the presence of the jury; (3) the district court's denial of a motion to suppress in-court and out-of-court eyewitness identifications of Guzman as the shooter in a gang murder; (4) the district court's jury instructions; (5) the district judge's decision to provide the jury with partial transcripts during its deliberations; and (6) alleged juror “misconduct” that came to light after the verdict was rendered. Before addressing these questions we provide an overview of the Aurora Insane Deuces gang and the relevant facts. This summary, which only scratches the surface of the evidence presented to the jury, is recounted here in the light most favorable to the verdicts. Additional facts are available in our companion case, Morales, 655 F.3d at 615–20.

The Aurora “Insane Deuces”

The Aurora faction of the Insane Deuces was the focus of this case. Its goal was to eliminate rival gangs and take over the streets of Aurora. Non–Insane Deuces were a threat to this goal. As defendant Salazar explained at a gang meeting in the summer of 2002, “They're a threat because they're a threat to our growth, our growth, because all of those neutron kids growin' up, they're given' them another option to turn to somethin' else.... They should only have one choice.... Either if you gonna be that side ... you gonna be on this side, you ain't got but one choice. Turn Deuce. They stuntin' our growth.”

The gang was organized into three levels of manpower: “Seniors,” “Juniors” and “Shorties.” The Juniors were the active gang members most responsible for day-to-day operations. Seniors were older members of the gang who were less active but advised the Juniors. The Shorties were the youngest members of the gang, often juveniles, whose job it was to carry out the orders of the Juniors. Juniors were led by members who served in roles of “Junior Governor,” “Lieutenant Governor,” and “Enforcer,” and similarly the Shorties were led internally by their own “First Seat,” “Second Seat,” and “Enforcer.” Individual gang members advanced within the gang by committing acts of violence, such as shooting members of rival gangs on “missions.” The gang conducted meetings for Juniors and Shorties, called “juntas,” at which the gang's business was discussed: missions and leadership roles were assigned, conflicts with rival gangs were reviewed, violence against rival gangs was planned, and intelligence was shared. The attending members also discussed dealing drugs, efforts to acquire firearms, the appropriate apportionment of dues and fines among the members, and how to support members who had been jailed. Insane Deuces in jail continued to enjoy the privileges of gang membership and could expect support and protection from their fellow members.

The gang had written rules, called “leyas,” and also abided by other, unwritten rules. Members were required to follow orders and report “missions” to their superiors. Members were punished, or “violated,” for disobeying a rule. “Violations” ranged from assignments to additional missions to being beaten to being killed. Cooperation with law enforcement warranted the worst violation. The gang also maintained a “caja,” which provided members with access to a common supply of drugs, guns, and money. Members took drugs from the caja, sold them, and then returned their cost and some profit to the caja. This profit went toward the purchase of additional firearms and drugs, and for bail money. Members of the Insane Deuces also could benefit from the “free enterprise” rule, which permitted members to deal drugs on the side so long as they shared their individual profits with the gang for its benefit.

In May 2002, in a coup that would lead to the indictments in this case, an Aurora police detective recruited Orlando Rivera as a confidential source. At the time, Rivera was a Junior Enforcer of the Aurora Insane Deuces. Under the supervision of local police and federal agents, Rivera provided information about the gang's activities and began making recorded purchases of firearms and cocaine from the Insane Deuces and their associates. In return for his cooperation with and assistance to law enforcement, Rivera was given total immunity.

Rivera also attended and recorded gang meetings and one-on-one conversations he had with members after shootings, including murders. In these recordings, gang members planned violent acts against rival gangs ...