United States v. Amaya

• Citation: 828 F.3d 518
• Decision Date: 03 June 2016
• Docket Number: No. 14–2617,14–2617
• Parties: United States of America, Plaintiff–Appellee, v. Juan Amaya, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

828 F.3d 518

United States of America, Plaintiff–Appellee
v.
Juan Amaya, Defendant–Appellant.

No. 14–2617

United States Court of Appeals, Seventh Circuit.

Argued September 9, 2015
Decided June 3, 2016

Helene B. Greenwald, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Heather L. Winslow, Chicago, IL, for Defendant–Appellant.

Before Easterbrook, Kanne, and Williams, Circuit Judges.

Williams, Circuit Judge.

For a time, Juan Amaya was a ranking officer in the Latin Kings, a vicious and well-organized street gang whose structure and operations we have previously described in detail. See generally United States v. Garcia , 754 F.3d 460, 465–68 (7th Cir. 2014). A jury convicted him of drug-

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related crimes (distributing cocaine, possessing cocaine with the intent to distribute it, and carrying a gun in furtherance of his cocaine distribution) and organized-gang-related crimes (conspiring to conduct racketeering activity and aiding and abetting a violent crime in aid of racketeering). On the gun count and the two racketeering counts, Amaya challenges the sufficiency of the government's evidence, but we find that the evidence sufficiently supported the jury's verdict.

Amaya also challenges the admission of an out-of-court statement made by an undercover law-enforcement agent, but the statement was not hearsay because it was not offered for its truth, and its admission was not unduly prejudicial. Finally, Amaya argues that the admission of an out-of-court statement made by a confidential informant violated Amaya's constitutional right to confront the witnesses against him. But the statement was not the type of “testimonial” statement covered by the Sixth Amendment's Confrontation Clause. For these reasons, we affirm Amaya's convictions.

I. BACKGROUND

This case arose out of an investigation into the Latin Kings street gang, an organization whose activities involve murder, assault, extortion, and drug dealing.¹ The government contended that Amaya was a long-time member of the gang who rose through the ranks to become a regional leader. There was evidence concerning the gang in general (and specifically as it operated in Amaya's territory), and evidence concerning Amaya's individual conduct.

A. Gang Structure

The Latin Kings operated in various parts of Illinois, including Chicago. The gang was highly organized and hierarchical, with its own constitution, manifesto, and code of conduct, as well as its own colors, handshake, salute, emblems, signs, flag, and territories. Territories were divided into “regions,” which were further divided into “sections” (sometimes called “chapters”). The highest-ranking member of a section is the “Inca,” and the highest-ranking member of a region is the “Regional Inca.”

The “26th Street Region” operated in the southwest Chicago neighborhood known as Little Village. The region had twenty-four sections, including the “Sawyer and 22nd Section,” which Amaya had joined by sometime in 2005. He rose to Regional Inca by early February 2008, and kept that position until May or June 2008. In that position, Amaya was in charge of about one thousand gang members. As Regional Inca, Amaya was outranked by only the “Supreme Regional Inca” (who oversaw multiple regions) and the head of the entire organization, the “Corona.”

Members were required to pay “dues,” which allowed the gang to buy guns, ammunition, cell phones, and police scanners, among other things. As Regional Inca, Amaya ensured that dues were paid. Dues were collected at the chapter level and some of the money was passed up to Amaya at the regional level. As Regional Inca, Amaya announced a plan to redistribute dues money so that each chapter had adequate resources, even those with small memberships.

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B. Gang Rules and Practices

As Regional Inca, Amaya was responsible for enforcing applicable rules, which came from the gang's manifesto, its constitution, and the 26th Street Region's local rules. A primary rule was that members were required to protect the gang's territory from its rivals, often through violence. For example, from Thursday night through Sunday morning, the 26th Street Region was on “mandatory bust out.” That meant that members patrolled their territory, armed with guns, and were required to shoot to kill any trespassing member of a rival gang. Members were required to carry guns when they loitered in their own territory and also when they traveled to rival territory. While Amaya was Regional Inca, gang policy dictated that if a Latin King was shot, the gang was required to conduct multiple retaliatory drive-by shootings. Around April 2008, while Amaya was Regional Inca, he bragged that 26 rival gang members had been shot during his tenure.

The rules also required violence against fellow Latin Kings. New recruits were initiated into membership through beatings. The rules provided for mandatory beatings for any member who broke the rules (these beatings were called “violations”). Although unwritten, there was a rule requiring that present or former gang members be killed on sight if they were known to have cooperated with law enforcement.

Given the mandatory shooting requirements, discussed above, it is not surprising that there were also rules governing what to do with guns that had been used in shootings. In the 26th Street Region, if a gun was used in a shooting that resulted in a death, the rules required the gun be disposed of. The local chapter would try to sell the gun to a suburban chapter, would throw it in the river, or would “chop it up” (physically destroy it piece by piece).

C. Amaya's Individual Conduct

1. Punishment of Fellow Latin Kings

The rules prohibited stealing within gang territory. But around April 2008, two members stole from a home in the 26th Street Region. (To make matters worse, it was the home of the Corona's girlfriend.) Because the home was within Amaya's region, he was charged with enforcing the punishment. The Corona initially ordered severe beatings in which any weapon could be used over an unlimited period of time, but Amaya believed that was too harsh, so he recommended that the thieves' hands be smashed instead—a recommendation the Corona accepted.

In a meeting that was secretly audio and video recorded, Amaya instructed that the thieves' hands be smashed with a hammer or a brick, rather than the baseball bat that another member had initially selected. The first thief submitted to the vicious beating without resistance. Amaya picked the specific gang member to carry out the attack and waited outside the room as it happened; he received a report when it was completed. Later that same day, the second thief was beaten, again at Amaya's direction, and again with Amaya receiving a report upon completion.

2. Extortion of Other Criminals

While Amaya was a Latin King, including while he was a Regional Inca, the gang extorted “miqueros”—people illegally selling fake identification cards. The miqueros paid the gang a monthly fee, which bought them protection and the privilege of operating a monopoly within gang territory. Refusal to pay the fee led to beatings.

3. Drug Trafficking

The Latin Kings' constitution expressly forbade selling certain drugs, including

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heroin, LSD, and crack cocaine. Applying (perhaps unknowingly) the canon expressio unius est exclusio alterius , the gang interprets the constitution to permit selling powder cocaine, so members did so (regulated by the gang). Gang members who could not repay their debts were prohibited from accepting drugs from other members on credit. Disputes among members arising out of drug sales were resolved by gang leadership. The leadership of the 26th Street Region allowed members who were actively involved in drug dealing to be excused from the “mandatory bust outs” as long as they paid extra dues by sharing some of their drug profits.

Amaya was removed as Regional Inca in May or June of 2008. (He was suspected of conspiring to kill the Corona, but those suspicions were eventually ruled unfounded.) But he remained a gang member in good standing and on September 28 and November 3, 2010, he sold cocaine to Sergeant Sean Koren, an undercover law-enforcement agent posing as a Latin King from out of town. The agent was accompanied by two confidential informants who were Latin Kings.

For both deals, Amaya arranged to meet at an alley in rival gang territory. The deals took place in Sergeant Koren's car and were audio and video recorded (though the September video is too dark to be useful). Both deals began with a handshake and greeting (“King Love”) that identified the parties as Latin Kings. During the September deal, Amaya said, “they all right here” and “I be waiting for their asses,” which the government contended referred to rival gang members in the vicinity. Sergeant Koren testified that as Amaya made these statements, he brandished a gun and pointed it down the alley. Amaya then sold Koren about half an ounce of cocaine...