U.S.A. v. Torres

• Decision Date: 18 October 1999
• Docket Number: Nos. 98-1272,98-1389,98-1401,DEFENDANTS-APPELLANTS,PLAINTIFF-APPELLEE,98-3357,s. 98-1272
• Citation: 191 F.3d 799
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA,, v. MIGUEL TORRES, JOSE DE LA PAZ SANCHEZ, SALOME VARELA AND JESUS RUIZ,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 799

191 F.3d 799 (7th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MIGUEL TORRES, JOSE DE LA PAZ SANCHEZ, SALOME VARELA AND JESUS RUIZ, DEFENDANTS-APPELLANTS.

Nos. 98-1272, 98-1389, 98-1401, 98-3357

United States Court of Appeals, Seventh Circuit

Argued May 21, 1999

Decided September 15, 1999

Rehearing and Rehearing En Banc Denied October 18, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 CR 407--Charles R. Norgle, Sr., Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Flaum, Kanne and Rovner, Circuit Judges.

Kanne, Circuit Judge.

This case arises from four kidnapings, one of which resulted in the death of a seventeen-year-old boy who had been abducted, shot and left unattended. All four victims were kidnapped because the kidnappers believed them to owe, or to be related to someone who owed, debts connected with cocaine trafficking.

A jury convicted the defendants, Miguel Torres, Salome Varela, Jesus Ruiz and Jose de la Paz Sanchez of various criminal charges arising from the string of hostage takings. Subsequently, the district court sentenced Torres, Varela and Ruiz to mandatory terms of life imprisonment and terms of forty-five years imprisonment to be served consecutively. It sentenced Sanchez to mandatory life imprisonment to be served consecutively with a term of twenty-five years. We have consolidated the defendants' appeals challenging their convictions and sentences.

I. History

Torres, Varela, Ruiz and Sanchez (along with fugitive Luis Alberto Carreno) served as "enforcers" who carried out a kidnapping scheme to collect drug debts at the direction of persons in El Paso, Texas. During the month of June 1996, the group kidnapped four individuals. Each kidnapping occurred in roughly the same manner. Members of the group used a blue and white Chevrolet van to abduct the victims. The group held three of the victims captive in the basement of a house located on Newland Avenue in Chicago. They confined the fatally wounded victim in a nearby apartment. Once they had abducted their victims, the group had one of their members or the victim call a relative of the victim demanding ransom.

Hostages Jesus Avila and Rafael Martinez, both drug dealers, and Jesus Flores, whose son owed a drug debt, were held at the Newland Avenue location. Avila was held for fifteen days, Flores for nine days and Martinez for eight days. The fourth victim, Jaime Estrada, was held in a nearby apartment for little more than a day and ultimately died as a result of a gunshot wound inflicted by Torres.

The kidnapping scheme began to unravel with the abduction of Estrada in Milwaukee. Upon returning to Chicago, the group called Estrada's brothers, demanding payment of $30,000. The Estrada family contacted law enforcement officials.

Following a number of recorded telephone calls between the group and the family, the FBI set up an undercover ransom delivery. They accompanied one of Estrada's brothers from Milwaukee to Chicago to pay the ransom. Estrada's brother left $30,000 in a suitcase in a locked car at a parking lot located at 44th and Pulaski and waited. Ruiz, Varela and Torres arrived at that location in a grey Chevrolet Lumina. Ruiz attempted to retrieve the money from the locked ransom car. As the FBI moved in on them, all three defendants fled. A high speed chase ensued, during which Varela pointed a gun at the agents. The chase ended when an agent struck the defendants' Lumina.

The FBI arrested Ruiz, Varela and Torres. Agents recovered a loaded .45 caliber magazine, loose .380 caliber ammunition, two pagers, a set of keys, a piece of cardboard with Estrada's brother's cell phone number written on it, a loaded 9-millimeter magazine, identification for "Eduardo Molina," a telephone, a knife and night vision equipment. An agent found a 9-millimeter firearm along the path of the chase at a point where he had seen something fall along the street.

The next morning, Estrada was found at a used car lot on the west side of Chicago. Estrada died seventeen days later from his gunshot wound and the thirty-hour delay in treatment. After the arrests, the other three victims-- Avila, Flores and Martinez--escaped from the house on Newland Avenue. None of the three had suffered serious physical injury.

Both the Chicago Police Department and the FBI searched the van, the apartment where Estrada had been held, and the house on Newland. From the van, they recovered two bullet-proof vests, blood that matched Estrada's DNA and fingerprints matching Varela, Sanchez and Torres. At the apartment, officers found ammunition, blood that matched Estrada's DNA, fibers linked to others found on Estrada, fibers linking the apartment to the house on Newland and fingerprints matching those of Varela, Torres, and Sanchez. From the house on Newland, they recovered handcuffs, an assault rifle subsequently identified as the gun used to shoot Estrada, ammunition, duct tape handcuffs, various documents linked to Sanchez, Torres and the van, fingerprints matching those of Torres, Varela, Ruiz and Sanchez, and keys to the van. Varela possessed the keys to the house on Newland when law enforcement officers arrested him.

Within a year after the arrest, the grand jury returned an indictment as to Torres, Varela, Ruiz and Sanchez. The subsequent superseding indictment charged Torres, Varela and Ruiz with conspiracy to commit racketeering, conspiracy to commit kidnapping, kidnapping in interstate commerce, three counts of using a firearm during and in relation to a crime of violence, assaulting a federal officer and four counts of violating the Hostage Act. The government indictment of Sanchez included identical charges with one fewer count of using a firearm during and in relation to a crime of violence. All four defendants appeal their convictions and sentences.

II. Analysis

On appeal, Torres, Varela, Ruiz and Sanchez ("defendants") raise several issues. First, they argue that their convictions based on the RICO conspiracy charges should be set aside because the government failed to establish a pattern of racketeering and a RICO enterprise as defined by that statute. Second, they contend that the district court denied them their Sixth Amendment rights to an impartial jury by refusing to question prospective jurors during the voir dire about biases toward illegal Mexican aliens. Finally, they assert that the district court improperly denied them an evidentiary hearing regarding the admissibility of the identification testimony elicited during trial. The remaining issues raised by the defendants, including those pertaining to sentencing, do not merit Discussion.

A. The RICO Charges

The defendants assert that the government failed to allege legally and prove factually a RICO enterprise and a RICO pattern of racketeering. First, they contend that the indictment fails to meet the statutory requirements because the government did not describe the structure of the organization, the manner in which it was formed, the duration of the enterprise, the hierarchy or organization of the enterprise, or the decision-making process within the organization. They also charge that the indictment fails to meet the statutory requirements, because the government did not state the duration of the activities sufficiently to establish a pattern of racketeering. Second, even if the indictment were sufficient, the defendants claim the government did not offer proof of the enterprise separate from the pattern of racketeering. They also contend that the activities occurred during a two-week period, which is not factually sufficient to establish a pattern of racketeering under RICO. We disagree and conclude that the indictment was sufficient to charge both a RICO enterprise and a pattern of racketeering and that the facts support finding that the defendants engaged in both.

1. The Indictment

We review contests to the sufficiency of an indictment de novo. See United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1526 (1998). To be sufficient, an indictment must state the elements of the crime charged, inform the defendant of the nature of the charges to enable her to prepare a defense and allow the defendant to plead acquittal or conviction so as to bar the possibility of future prosecutions for the same offense. See Fed. R. Crim. P. 7(c)(1); Agostino, 132 F.3d at 1189. "Generally, an indictment is sufficient when it sets forth the offense in the words of the statute itself, as long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished." United States v. Hinkle, 637 F.2d 1154, 1157 (7th Cir. 1981). We review indictments as a whole, rather than "in a hypertechnical manner." United States v. McNeese, 901 F.2d 585, 602 (7th Cir. 1990).

The indictment of the defendants fulfills these requirements. The government charged the defendants under 18 U.S.C. sec. 1962, which states:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C. sec. 1962(c). Thus, the indictment must charge that the defendants engaged in "(1) conduct (2) of an enterprise (3) through a pattern of racketeering activity." See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).

The defendants first contend that the government did not establish the existence of a RICO enterprise. The superseding indictment, however, clearly alleges the existence of an enterprise. In relevant part, it states:

[The defendants] were an "enterprise" as that term is defined in Title 18, United States Code,...