Judges: Kanne
Filed: Nov. 18, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 12-3680, 12-3683, 12-3747, 13-1374 & 13-2321 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT CARDENA, TONY SPARKMAN, JORGE URIARTE, HECTOR URIARTE, and GLENN LEWELLEN, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 0332 — Joan B. Gottschall, Judge. _ ARGUED DECEMBER 11, 2015 — DECIDED NOVEMBER 18, 2016 _ Before KANNE, ROVNER, and
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 12-3680, 12-3683, 12-3747, 13-1374 & 13-2321 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT CARDENA, TONY SPARKMAN, JORGE URIARTE, HECTOR URIARTE, and GLENN LEWELLEN, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 0332 — Joan B. Gottschall, Judge. _ ARGUED DECEMBER 11, 2015 — DECIDED NOVEMBER 18, 2016 _ Before KANNE, ROVNER, and H..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ROBERT CARDENA, TONY SPARKMAN, JORGE URIARTE,
HECTOR URIARTE, and GLENN LEWELLEN,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 CR 0332 — Joan B. Gottschall, Judge.
____________________
ARGUED DECEMBER 11, 2015 — DECIDED NOVEMBER 18, 2016
____________________
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
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.
2 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
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 esca‐
lated into kidnapping them for ransom money or even mur‐
dering them for money and drugs.
Although several of the members arranged plea agree‐
ments, 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 (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’ ar‐
guments, 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
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 3
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 Rodri‐
guez.
The venture was profitable, and it evolved to include more
members and more violent crimes to further the venture. Be‐
tween 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 rob‐
bery of 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 racket‐
eering conspiracy to commit murders, kidnappings, rob‐
beries, 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 of‐
fenses of the conspiracy. We briefly describe those relevant to
this appeal.
4 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
In 2006, Defendants Hector, Jorge, Sparkman, and Car‐
dena 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 An‐
dres 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 con‐
nection with this offense.
In 2008, Hector, Jorge, Sparkman, and Flores kidnapped
Jose Carranza and his friend (“Carranza kidnapping”). Hec‐
tor 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.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 5
In April 2009, the crew attempted to steal 600 kilograms of
cocaine from a warehouse in Channahon, Illinois (“Chan‐
nahon 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 wit‐
nesses, including the testimony of cooperating co‐conspira‐
tors Rodriguez, Flores, Fares Umar, Lisette and David Vene‐
gas, 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, Hec‐
tor, 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 Sparkman
were convicted of two 18 U.S.C. § 924(c) offenses each, they
were subject to a mandatory minimum of 40 years’ imprison‐
ment. The district court sentenced Sparkman to the manda‐
tory minimum of 504 months; Jorge to a below‐guidelines
sentence of 720 months; and Hector to a below‐guidelines
sentence of 600 months.
6 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
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 mari‐
juana. The government then moved to dismiss Juror 24 for
cause. The district court asked the government to confirm the
accuracy of the criminal history report before it would grant
the motion. The report was correct, so the district court dis‐
missed Juror 24 for cause because of his false statements.
Generally, we review a district court’s ruling on for‐cause
challenges to jurors for an abuse of discretion. United States v.
Fletcher, 634 F.3d 395, 409 (7th Cir. 2011). We need not even
consider whether the district court abused its discretion, how‐
ever, because Defendants have not pointed to any legally cog‐
nizable harm. See Marshall v. City of Chicago, 762 F.3d 573, 578
1 Several of the arguments raised apply to all Defendants. Where argu‐
ments apply to fewer than all Defendants, it will be indicated as needed.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 7
(7th Cir. 2014) (“[E]ven quoting the standard of review is get‐
ting ahead of ourselves. [The defendant] has suggested no re‐
motely cognizable legal harm to support this argument.”).
There is “no legally cognizable right to have any particular
juror participate in [a defendant’s] case.” United States v. Poli‐
chemi, 201 F.3d 858, 865 (7th Cir. 2000). We have repeatedly
rejected the challenge Defendants raise, explaining:
[The defendant’s] argument that one prospective ju‐
ror who did not sit on his jury would have been un‐
biased does not establish a violation of his constitu‐
tional rights to due process and an impartial jury;
these rights are satisfied as long as a defendant is
tried before a “qualified jury composed of individu‐
als not challengeable for cause.”
United States v. Russell, 463 F. App’x 585, 586–87 (7th Cir. 2012)
(quoting Rivera v. Illinois, 556 U.S. 148, 157 (2009)); see also
United States v. Osigbade, 195 F.3d 900, 905 (7th Cir. 1999).
Defendants’ reliance on cases where a district court denied
a for‐cause challenge is misplaced because such a denial may
have resulted in the seating of a juror who is actually partial,
thereby affecting the impartiality of the jury. There are no
such concerns where a for‐cause challenge may have been
mistakenly granted,2 but the jury was otherwise impartial,
which is the circumstance we face here.3
2 That is not to say that the for‐cause challenge was improperly granted in
this case. We decline to address the merits of the district court’s decision
to remove Juror 24 for cause.
3 Curiously, Defendants suggest that the harm they suffered was the dep‐
rivation “of a meritful challenge under Batson v. Kentucky, 476 U.S. 79
8 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
B. Rereading the Silvern Instruction
Defendants next argue that the district court abused its
discretion when it chose to reread the Silvern instruction in‐
stead of declaring a mistrial after the jury indicated that it was
unsure if it could reach a verdict.
Before deliberating, the jury was read a modified version
of the instruction4 this court promulgated in United States v.
Silvern, 484 F.2d 879 (7th Cir. 1973) (en banc).
(1986), to the Government’s eventual use of a peremptory strike to remove
Juror 24 from the jury.” (Hector Br. 27 n.2.) But Defendants cite no author‐
ity for such a proposition, likely because we have rejected just such an
argument. See United States v. Taylor, 509 F.3d 839, 849 (7th Cir. 2007) (“The
defendants’ argument rests on pure speculation—they merely suspect
that the government would have exercised a peremptory challenge
against [the juror] had its challenge for cause been denied. Moreover, Bat‐
son prohibits the use of peremptory challenges in a discriminatory fashion;
it does not require a district court to deny challenges for cause with respect
to African‐American potential jurors just to guarantee the defendants the
opportunity to raise a Batson challenge.”).
4 The instruction, based on Seventh Circuit Pattern Instruction § 7.03, pro‐
vided:
You should make every reasonable effort to reach a ver‐
dict. In doing so, you should consult with one another,
express your own views, and listen to the opinions of
your fellow jurors. Discuss your differences with an open
mind. Do not hesitate to reexamine your own views and
change your opinion if you come to believe it is wrong,
but you should not surrender your honest beliefs about
the weight or effect of evidence solely because of the opin‐
ions of your fellow jurors or for the purpose of returning
a unanimous verdict.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 9
After twenty‐three hours of deliberation, the district court
received a note from the jury that said: “Dear Judge, we have
been talking about all the evidence, and unfortunately believe
that there are some counts we can’t agree on. What might our
next step be? We have voted, discussed, voted over and over
again. Some of us stand very strong in our opinions.” (Trial
Tr., vol. 32,5 5432.) In light of the note from the jury, Defend‐
ants moved for a mistrial, but the government requested that
the district court reread the Silvern instruction instead.
During the discussion about the jury’s note, the district
court disclosed that the previous day a court security officer
had told the court that “one of the jurors [was] near tears be‐
cause she’s afraid she’s going to lose her job if these delibera‐
tions don’t come to an end.” (Id. at 5433.) The court instructed
the officer to tell the jury that if there is “any juror who needs
me to deal with an employer, they should bring their concerns
to me.” (Id. at 5441.) No juror approached the court.
The defense requested, and the district court agreed, to
take this fact into consideration when deciding whether to re‐
read the Silvern instruction. The district court found it appro‐
priate to reread the instruction instead of declaring a mistrial.
We review a district court’s decision to read (or reread) the
Silvern instruction for an abuse of discretion. United States v.
Sanders, 962 F.2d 660, 676 (7th Cir. 1992). The Silvern instruc‐
tion may be reread “to the jury after deliberations reach a
deadlock, provided that a supplemental instruction is
(Trial Tr., vol. 30B, 5475.)
5 An error occurred in the consecutive pagination of the trial transcripts,
so there are duplicates of pages 5423–89. Where there are duplicate page
numbers, the volume number will be used to distinguish them.
10 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
deemed necessary.” United States v. Collins, 223 F.3d 502, 509
(7th Cir. 2000) (internal quotation marks omitted). At bottom,
“[t]he relevant inquiry, under Silvern, … is whether the court’s
communications pressured the jury to surrender their honest
opinions for the mere purpose of returning a verdict.” United
States v. Kramer, 955 F.2d 479, 489 (7th Cir. 1992) (internal quo‐
tation marks omitted).
The content of the instruction is not inherently coercive.
Sanders, 962 F.2d at 676; United States v. Beverly, 913 F.2d 337,
352 (7th Cir. 1990). But, Defendants argue, it was the context
in which the instruction was reread that led to coercion. In this
case, the jury sent one deadlock note after only three days of
deliberation in a trial that had lasted eleven weeks and had
six Defendants and more than 100 witnesses. In such a situa‐
tion, the district court did not abuse its discretion in rereading
the Silvern instruction. See, e.g., Sanders, 962 F.2d at 665–66, 676
(no error in two rereadings of Silvern instruction after two‐
month, multi‐defendant trial where jury had only deliberated
for two days but one juror was refusing to participate).
In addition, the jury did not return its verdict until five
days after the court reread the Silvern instruction, and it did
not convict all Defendants of all counts, indicating that re‐
reading of the instruction did not pressure jurors to “surren‐
der their honest opinions for the mere purpose of returning a
verdict.” Kramer, 955 F.2d at 489 (internal quotation marks
omitted).
With respect to the crying juror, it is quite speculative to
infer that the juror felt coerced to agree. No juror came for‐
ward after the district court requested the jury be informed
that anyone having trouble with an employer should discuss
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 11
the issue with the court. It is more likely that whatever frus‐
tration plagued that juror had been resolved, or else the dis‐
trict court would have been informed. Accordingly, the dis‐
trict court did not abuse its discretion in rereading the Silvern
instruction.
Nor did the district court abuse its discretion in refusing
to grant a mistrial. A district court has broad discretion to
deny a motion for a mistrial, and we only review for an abuse
of that discretion. Beverly, 913 F.2d at 351. Again, deliberations
had only gone on for three days after a trial that had lasted
almost three months. The jury had only sent one note to the
court expressing its inability to agree. The district court re‐
sponded appropriately by asking for jurors to come forward
if there were problems with work and rereading the Silvern
instruction to encourage further deliberation.
C. Failure to Hold Hearing about Crying Juror
Defendants, relying on Remmer v. United States, 347 U.S.
227 (1954), also contend that the district court abused its dis‐
cretion when it did not hold a hearing to assess whether the
crying juror’s employment pressures were an extraneous jury
influence that violated their right to a fair trial.
No Defendant requested a hearing to evaluate the upset
juror’s situation, nor did any Defendant object to the district
court’s solution, which was to request that any juror having
trouble with work bring it to the court’s attention. A failure to
object, coupled with acquiescence in the district court’s solu‐
tion, could constitute waiver of a hearing. See United States v.
Verkuilen, 690 F.2d 648, 658 (7th Cir. 1982) (“Defense counselʹs
12 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
express acquiescence to the manner in which the court han‐
dled the jury taint question clearly amounts to a waiver of the
issue.”).
Even if not waived, our review is made particularly diffi‐
cult in light of the fact that Defendants did not request a hear‐
ing. See United States v. Walker, 160 F.3d 1078, 1083 (6th Cir.
1998) (“[A] defendant who waits until appeal to request a
[Remmer] hearing bears a heavy burden, since the defendant
has thereby effectively deprived this court of any basis for
concluding that a hearing would be necessary, and asks us to
presume that the district court would not have acceded to
such a request, and would have done so for erroneous rea‐
sons.”). Defendants’ claim that the district court erred in fail‐
ing to sua sponte order a Remmer hearing cannot survive the
heavy burden of plain‐error review, which requires an error
that is plain and affects the defendant’s substantial rights. Fed.
R. Crim. P. 52(b); United States v. Marcus, 560 U.S. 258, 262
(2010).
While it is true that extraneous influences on a juror can
give rise to a violation of a defendant’s right to an impartial
jury, Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005), not all
extraneous influences are presumptively prejudicial such that
they require a Remmer hearing. See United States v. Warner, 498
F.3d 666, 680 (7th Cir. 2007) (“Sometimes the circumstances
are such that the Remmer presumption does not even apply.”).
To invoke the Remmer presumption, “the extraneous com‐
munication to the juror must be of a character that creates a
reasonable suspicion that further inquiry is necessary to de‐
termine whether the defendant was deprived of his right to
an impartial jury.” Wisehart, 408 F.3d at 326. “How much in‐
quiry is necessary (perhaps very little, or even none) depends
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 13
on how likely was the extraneous communication to contam‐
inate the jury’s deliberations.” Id.
In the present case, any extraneous communication was
not “of a character that creates a reasonable suspicion that fur‐
ther inquiry is necessary.” Id. The juror was near tears because
of concern about losing her job; nothing about the communi‐
cation was related to the case or to influence a vote. This was
not a “purposeful intrusion into the sanctity of the juror’s do‐
main” to which the Remmer presumption applies. Schaff v.
Snyder, 190 F.3d 513, 534 (7th Cir. 1999). In addition, the dis‐
trict court relayed to the jurors that if there were problems
with an employer, they should alert the district court. No ju‐
ror came forward, indicating that any extraneous communi‐
cation was no longer affecting the juror. And finally, the dis‐
trict court disclosed the situation and its solution to both par‐
ties, at which point Defendants did not request a hearing.
Those facts are a far cry from Remmer where the extraneous
communication was an offer to bribe a juror, and the court and
prosecutor resolved the situation ex parte. 347 U.S. at 228–29.
D. Government’s Introduction of “False” Testimony
Defendants Hector, Jorge, Sparkman, and Lewellen argue
that the government knowingly introduced false testimony at
trial, which warrants a new trial.
Because Defendants did not object at trial to the govern‐
ment’s alleged presentation of knowingly false testimony, our
review is for plain error. United States v. Peak, 856 F.2d 825,
830–31 (7th Cir. 1988).
Undoubtedly, it violates due process for the government
to obtain a conviction by the knowing use of perjured testi‐
mony. Napue v. Illinois, 360 U.S. 264, 269 (1959); Schaff, 190 F.3d
14 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
at 530. But, to receive a new trial, the defendant must show
“(1) that there was false testimony; (2) that the government
knew or should have known it was false; and (3) that there is
a likelihood that the false testimony affected the judgment of
the jury.” United States v. Freeman, 650 F.3d 673, 678 (7th Cir.
2011).
1. Victoria’s Testimony
Defendants first allege that Pedro Victoria gave testimony
the government knew to be false regarding Hector’s involve‐
ment in the Avila kidnapping and Delatorre robbery.
The false testimony at issue is Victoria’s trial testimony
that he gave the government information in January, Novem‐
ber, and December 2008 that Hector was involved in the Avila
kidnapping. But Officer Healy testified that he did not recall
Victoria identifying the Uriartes as being involved until his
grand‐jury testimony in February 2010.
Thus, Victoria’s “false” testimony relates to the dates on
which he informed the government that Hector was involved
in the Avila kidnapping. But, “[t]he alleged perjured testi‐
mony must bear a direct relationship to the defendant’s guilt
or innocence.” Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir.
2001) (internal quotation marks omitted). The date on which
Victoria told the government that Hector was involved in the
Avila kidnapping has nothing to do with whether Hector was
involved or not, and so any falsehood does not bear on Hec‐
tor’s guilt or innocence.
Rather, the argument that the government presented Vic‐
toria’s false testimony appears to be an attempt to re‐weigh
the credibility of Victoria’s testimony. Their contention is that
when Rodriguez was placed in the Metropolitan Correctional
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 15
Center in February 2009 along with Victoria and other gov‐
ernment witnesses, Rodriguez coerced or attempted to coerce
those witnesses to corroborate his story so that he could get a
better plea deal. But the jury was fully apprised of the fact that
Rodriguez had engaged in such conduct. Defendants cross‐
examined Victoria extensively about the dates, and the jury
also heard Officer Healy’s testimony that Victoria did not
identify Hector as involved until February 2010. Defendants
were able to argue to the jury the implication that Rodriguez
told Victoria to testify that Hector was involved, an implica‐
tion it rejected by convicting Hector. “When a jury has chosen
to credit crucial testimony with full knowledge of the many
faults of the witness providing it, we have no basis to inter‐
fere,” United States v. Alcantar, 83 F.3d 185, 189 (7th Cir. 1996),
and we decline to do so here.
2. Vega’s and Rodriguez’s Testimony
Next, Defendants argue that the government presented
false testimony from either Rodriguez or Vega over whether
there was a dead body in the basement where Vega was held
during his kidnapping.
Vega’s testimony was the following:
Q: From where you were, you could see a dead male
body on the floor of the basement?
A: Yes.
Q: You were able to look at that body for an hour or
so because you were—while you were in the base‐
ment you were not blindfolded?
A: Yes. …
Q: Based on the clothes and the build of the body,
you believed that the body was Mauricio’s.
16 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
A: Yes.
(Trial Tr. 2474–75.)
Rodriguez, however, testified to the following:
Q: … Let me ask you this: Was there a dead body on
the floor by this body shop guy [Vega]?
A: No.
Q: Was there ever a dead body in Rogelio Corral’s
home?
A: No. …
Q: Was [Mauricio’s] dead body lying on the floor of
Rogelio Corral’s home?
A: There was no dead body.
(Id. at 3566–67.)
According to Defendants, one of the two had to be lying
about whether there was a dead body, and therefore, the gov‐
ernment knowingly presented false testimony.
But “[m]ere inconsistencies in testimony by government
witnesses do not establish the government’s knowing use of
false testimony.” United States v. Verser, 916 F.2d 1268, 1271
(7th Cir. 1990) (internal quotation marks omitted). The differ‐
ence in testimony between the two witnesses as to whether
Mauricio’s dead body was in the basement does not establish
that either’s testimony was deliberately false, rather than a dif‐
ference in personal knowledge or perception.
Vega only viewed the body for an hour from a distance
during a stressful kidnapping. Rodriguez, on the other hand,
denied that there ever was a dead body in the house. Perhaps
there was an unconscious body or perhaps it was just a pile of
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 17
clothing that resembled a body. There are countless possibili‐
ties that could explain why the two witnesses had different
recollections, and there is no evidence the government
“knew” one of the witnesses’ descriptions to be “false.”
Even assuming—which is quite a large assumption—that
the inconsistency between Rodriguez and Vega’s testimony
amounts to the government’s knowing use of false testimony,
the alleged perjured testimony does not relate to Defendants’
guilt or innocence. Shasteen, 252 F.3d at 933. There was no
charge in this case related to Mauricio’s murder, so any “false
testimony” that may have resulted over whether his dead
body was in the basement has no bearing on whether a par‐
ticular Defendant was involved in Vega’s kidnapping. De‐
fendants do not explain how the alleged “false testimony”
about whether or not there was a dead body in the basement
prejudiced them, and so we decline to grant a new trial on
those grounds.
E. Witnesses Brought to the Courtroom Window
Defendants Hector, Jorge, Sparkman, and Lewellen next
argue that a new trial should be granted because witnesses
were brought to the courtroom window for purposes of mak‐
ing identifications prior to testifying in violation of Defend‐
ants’ Sixth Amendment right to counsel.
During trial, Defendants learned that the government was
having agents bring witnesses to the courtroom window to
see if they could identify Defendants. Defendants brought the
practice to the attention of the court. In response, the govern‐
ment said the practice had only been used for witnesses “who
have had social and business relationships with these defend‐
ants for months and years.” (Trial Tr. 2325.) The government
18 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
also disclosed that Salvador Hernandez, a witness who had
not yet testified, was asked to look through the courtroom
window and said he did not recognize anyone despite having
previously identified the Uriartes in pictures.
The district court ordered that the practice stop. It also per‐
mitted the defense to cross‐examine Hernandez about his in‐
ability to identify any Defendant through the window. Later,
the government sent a letter to the defense in which it dis‐
closed the witnesses who were asked to make identifications
through the courtroom window. Defendants did nothing fur‐
ther with the information.
After the verdicts, Lewellen and Jorge moved for a new
trial, arguing that the identifications violated due process.
U.S. Const. amend. V. The district court, after a hearing, de‐
nied the motion.
Defendants did not raise the argument that the identifica‐
tions violated their Sixth Amendment right to counsel until
October 21, 2012. On that date, Jorge filed a post‐trial “list of
issues [Defendant] wishes to raise related to his trial and con‐
viction.” (R. 1051 at 1.) The list described the identification
procedure and called it “an impermissible, post‐indictment
show‐up. …” citing United States v. Wade, 388 U.S. 218 (1967),
and Gilbert v. California, 388 U.S. 263 (1967). (Id. at 4.)
On appeal, Defendants appear to forfeit any argument
that the procedure violated due process and only pursue the
distinct argument that the identification violated the Sixth
Amendment. Because Defendants did not make a contempo‐
raneous objection on Sixth Amendment grounds, we will re‐
view for plain error. See, e.g., United States v. Bell, 624 F.3d 803,
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 19
808 (7th Cir. 2010) (plain‐error review where argument on ap‐
peal “rests on different grounds”).
The Sixth Amendment right to counsel requires the pres‐
ence of counsel at any “critical stage of the prosecution.”
Wade, 388 U.S. at 237. There appears to be a circuit split on the
question of whether permitting a witness to identify the de‐
fendant in the courtroom prior to testifying violates the Sixth
Amendment. Compare United States v. Roth, 430 F.2d 1137,
1140–41 (2d Cir. 1970) (extending Wade to courtroom walk‐
through of witness) and Cannon v. Alabama, 558 F.2d 1211, 1217
(5th Cir. 1977) (applying Wade where officer asked witness to
look through courtroom window), with United States v. Mont‐
gomery, 150 F.3d 983, 994–95 (9th Cir. 1998) (not extending
Wade to identification through courtroom window because it
was a “non‐adversarial” identification not requiring assis‐
tance of counsel).
We decline to wade into the circuit split, however, because
any error in allowing witnesses to look through the court‐
room window to identify Defendants could not have preju‐
diced them because the witnesses had an “independent
source” for their identification. See Gilbert, 388 U.S. at 272. The
only witnesses that had testified by the time the government’s
practice was disclosed were co‐conspirators or business asso‐
ciates who had repeated interactions with Defendants. The
only victim that looked through the courtroom window, Her‐
nandez, did not make an in‐court identification and was
cross‐examined extensively about the courtroom‐window
practice. Therefore Defendants have not shown that they were
prejudiced by any error the government committed by bring‐
ing witnesses to the courtroom window.
20 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
It does not go unnoticed that the government’s practice of
bringing witnesses to the courtroom window before testifying
appears to be a subversion of the long‐standing tradition that
a witness identify the defendant in the courtroom on the wit‐
ness stand in front of the jury and counsel.
In fact, in‐court identifications are not subject to due‐pro‐
cess concerns of suggestiveness because “the jury is in the
unique position of observing the entire identification proce‐
dure, and it may weigh the accuracy of the identification ac‐
cordingly.” United States v. Recendiz, 557 F.3d 511, 526 (7th Cir.
2009). The government flouted that tradition by conducting
in‐court identification dress rehearsals without the proce‐
dural protection of the jury’s and counsel’s gaze. Neverthe‐
less, we do not find that in this case the practice prejudiced
Defendants or “seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 736 (1993) (internal quotation marks omit‐
ted).
F. Lewellen’s Motion to Sever
Before trial, Lewellen moved to sever his trial (or at least
the murder‐related counts) from the other Defendants, argu‐
ing that joinder was improper. Lewellen argued that because
he did not participate or even know about the murders and
did not have a relationship with the alleged murderers, he
could not have “participated in the same act or transaction”
with them. Fed. R. Crim. P. 8. In addition, he contended that
he would be unfairly prejudiced by the government’s intro‐
duction of evidence of murder because he was not alleged to
have participated in murder. Fed. R. Crim. P. 14.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 21
The district court denied Lewellen’s motion on both
grounds, concluding that because the government had al‐
leged a RICO conspiracy, there was no requirement that every
Defendant know each other or have personally participated
in each act alleged.
At the close of evidence, Lewellen filed a motion alleging
that the evidence was insufficient to sustain a conviction on
the RICO counts and the narcotics conspiracy counts. Lewel‐
len did not, however, renew his motion to sever at that time.
After he was convicted of the narcotics conspiracy counts but
not convicted of the RICO conspiracy, Lewellen raised the
severance objection in a motion for a new trial, which the dis‐
trict court again denied.
We review a district court’s denial of a motion to sever for
an abuse of discretion. United States v. Jackson, 787 F.3d 1153,
1158 (7th Cir. 2015). A defendant, however, waives the issue if
he does not renew his severance motion at the close of evidence.
Id.; see also United States v. Plato, 629 F.3d 646, 650 (7th Cir.
2010) (“Failure to renew a motion to sever at the close of evi‐
dence results in waiver.”).
Lewellen argues that because he raised the issue in a post‐
trial motion for a new trial, our review is for abuse of discre‐
tion. That is incorrect. The severance motion must be renewed
at the close of evidence, not after the verdict. That is “because
the close of evidence is the moment when the district court
can fully ascertain whether the joinder of multiple counts was
unfairly prejudicial to the defendant’s right to a fair trial,”
while also “discouraging strategic choices by criminal de‐
fendants who would prefer to wait for a verdict before renew‐
ing their severance arguments, thus wasting valuable judicial
22 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
resources.” United States v. Rollins, 301 F.3d 511, 518 (7th Cir.
2002).
Importantly, Lewellen has not argued “that refiling [the
motion to sever] would have been … futile,” a situation in
which waiver may be excused. United States v. Alviar, 573 F.3d
526, 538 (7th Cir. 2009) (alteration in original and internal quo‐
tation marks omitted). In fact, he offers no reason why he did
not renew his severance motion at the close of evidence.
Therefore, we conclude that he has waived the severance is‐
sue, precluding appellate review. See Olano, 507 U.S. at 733.
Even if Lewellen had not waived his claim for severance,
the district court did not abuse its discretion in denying sev‐
erance just because Lewellen did not personally participate in
the alleged murders. Instead, “there is a presumption that
participants in a conspiracy or other criminal schemes should
be tried together, not only to economize on judicial and pros‐
ecutorial resources but also to give the jury a fuller picture of
the scheme.” United States v. Phillips, 239 F.3d 829, 838 (7th Cir.
2001) (internal quotation marks omitted).
The indictment alleged that Defendants engaged in a long‐
running conspiracy involving drug trafficking, kidnapping,
robbery, and murder. There was testimony at trial that Lewel‐
len participated in drug trafficking and robbery in further‐
ance of the conspiracy. The fact that Lewellen did not person‐
ally participate in murder does not mean that the district
court abused its discretion in permitting joinder. See id. at 387
(affirming joinder of the only defendant “not charged with
committing a violent crime in aid of racketeering”).
Lewellen has also not shown that his trial was in any way
unfair as a result of the admission of murder evidence. In fact,
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 23
the jury could not reach a unanimous verdict on the RICO
count—the charge to which the murder evidence was rele‐
vant. The verdict reinforces that the jury did as it was in‐
structed and considered the evidence against Lewellen sepa‐
rately from other Defendants, resulting in a fair trial.
G. Evidence of “Unexplained Wealth”
Defendants Hector and Lewellen challenge the govern‐
ment’s reliance on a theory of unexplained wealth to intro‐
duce financial evidence against them.
1. Hector’s Financial Evidence
During trial, Hector filed a motion in limine to prevent the
government from introducing financial evidence. The govern‐
ment opposed the motion because it wanted to introduce ev‐
idence of his lavish spending on jewelry and luxury cars. The
government indicated that it would introduce evidence of
Hector’s legitimate sources of income, including his tax re‐
turns from 2000 to 2009, a 2005 mortgage application, and a
2007 vehicle financing application.
The district court, relying on United States v. Carrera, 259
F.3d 818 (7th Cir. 2001), denied Hector’s motion, ruling that
evidence of his unexplained wealth was relevant and admis‐
sible, provided that the government introduce evidence “that
the income was not obtained through legitimate means,”
which it noted could be shown by introduction of his tax re‐
turns.
As a result, the government introduced testimony that
Hector received large amounts of cash from criminal activity,
including drug sales and kidnapping ransoms. It also intro‐
duced testimony of several purchases and investments he
24 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
made between 2004 and 2008, including: (1) business invest‐
ments of $250,000, $50,000 of which was in cash; (2) a $280,000
mortgage with a cash down payment of $66,162; (3) vehicle
purchases around $227,000; and (4) a diamond bracelet for
$20,000 cash.
To comply with Carrera, the government presented the fol‐
lowing evidence that Hector’s income was not obtained
through legitimate means: (1) a 2005 mortgage application in
which Hector represented that he owned Platinum Motors for
three years, earning a monthly salary of $15,000 and (2) two
2008 vehicle financing applications in which he represented
that he had been employed by Platinum Motors for five years,
earning a monthly salary of $10,416.
But the owner of Platinum Motors, Roy Corral, testified
that Hector had never worked there. He explained instead that
Hector would invest cash in the business, and Corral would
give him payroll checks because he “felt threatened if [he]
didn’t do so.” (Trial Tr. 2834.) Coconspirator Andres Flores
testified that Hector told him he had invested in Platinum Mo‐
tors as a way to “tell people he had a job, a legitimate one.”
(Id. at 2092.)
The government did not introduce Hector’s tax returns.
During closing argument, the government argued that Hec‐
tor’s lavish spending was unexplained wealth and that the
only explanation was his involvement in criminal activity.
After trial, Hector filed a motion for a new trial, challeng‐
ing the government’s use of an unexplained‐wealth argument
because it had not introduced an objective financial picture
via tax returns. The district court denied the motion, finding
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 25
that evidence that Hector was not employed at Platinum Mo‐
tors was sufficient evidence that his income was illegitimate.
2. Lewellen’s Unexplained Wealth
During trial, several witnesses testified that the organiza‐
tion would sell cocaine or get ransom money, and Lewellen
would get a portion of the proceeds. The government then in‐
troduced evidence of Lewellen’s large expenditures, empha‐
sizing his use of large amounts of cash. Specifically, it intro‐
duced evidence that in 2006, Lewellen purchased four classic
cars totaling $175,000, $145,000 of which was paid in cash. The
witness testified that in his experience with the classic car
market, he had never seen someone pay cash to make such a
large car purchase.
To satisfy Carrera, the government presented some evi‐
dence of Lewellen’s sources of income. Lewellen’s former
business associate testified that Lewellen told him that he had
a $1 million workplace‐injury settlement while at CPD. Lew‐
ellen’s CPD record, however, does not mention any such set‐
tlement. The same associate testified that Lewellen told him
that his wife had received a “couple million dollars” from an
injury in an accident, but no evidence at all was offered to ei‐
ther prove or disprove that payment. (Trial Tr. 2694.)
Lewellen’s case now diverges from Hector’s because it is
undisputed that he did have some legitimate income. The gov‐
ernment presented evidence that Lewellen’s salary as a police
officer was never more than $61,512 from 1996 to 2002, which
is when he left CPD.
Complicating matters further, however, is the fact that in
1999, Lewellen opened a homebuilding business. The govern‐
ment did not present evidence of the legitimate income that
26 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Lewellen earned from that venture. It did, however, introduce
limited testimony with respect to Lewellen’s business, includ‐
ing that Lewellen Home Builders owned a $125,000 Hitachi
excavator and that Lewellen provided a $1.2 million down
payment to purchase land for a subdivision.
The government also elicited testimony about Lewellen’s
significant use of cash in his business, including: (1) Lewel‐
len’s purchase and resale of 70 home lots, after which he paid
a finder’s fee of $60,000 in cash; (2) Lewellen’s use of $140,000
in cash, bound with rubber bands, to pay subcontractors; and
(3) payments to subcontractors between 2001 and 2005, total‐
ing approximately $44,000 in cash.
During closing argument, the government argued that
Lewellen’s use of more than $388,000 in cash to buy cars and
pay contractors came from criminal activity, not from his
modest salary as a police officer. It only once referred to the
evidence as Lewellen’s unexplained wealth. Lewellen never
objected to the government’s use of the financial evidence or
its characterization of the financial evidence as unexplained
wealth. He did, however, argue in closing that there was no
“unexplained wealth” because he made all of the money
through his legitimate business venture.
After the verdict, Lewellen filed a motion for a new trial,
arguing that evidence of his financial situation was improp‐
erly admitted as “unexplained wealth” because the govern‐
ment did not offer evidence of the legitimate income he
earned in his homebuilding business. The district court found
that the financial evidence was improperly admitted under a
theory of unexplained wealth, but concluded that because ev‐
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 27
idence of large cash expenditures was independently admis‐
sible, Lewellen was not prejudiced by any improper argu‐
ment.
3. Analysis
Defendants first argue that any evidence of unexplained
wealth should have been excluded under Federal Rule of Ev‐
idence 404(b). Rule 404(b) excludes evidence of a “crime,
wrong, or other act” if used to “prove a person’s character in
order to show that on a particular occasion the person acted
in accordance with the character,” or in other words, if used
as propensity evidence. Fed. R. Evid. 404(b)(1).
But Rule 404(b) does not apply to evidence that “relates to
acts concerning the chronological unfolding of events that led
to an indictment, or other circumstances surrounding the
crime.” United States v. Holt, 460 F.3d 934, 937 (7th Cir. 2006)
(internal quotation marks omitted). In such a case, the evi‐
dence is “part of the story of the very offense for which the
defendant is on trial.” Id. The financial evidence presented
here is part and parcel of the circumstances surrounding the
conspiracy crimes with which Defendants were charged, ren‐
dering 404(b) inapplicable.
Furthermore, evidence of other acts is admissible to prove
motive, intent, or plan. Fed. R. Evid. 404(b)(2). The financial
evidence here was not being used to show Defendants’ pro‐
pensity to spend lavishly or launder money in order to prove
that they spent lavishly or laundered money on a different oc‐
casion. Instead, it is being used to show their plan to conceal
the proceeds of criminal activity.
Next, we turn to the pertinent issue at hand: the relevance
of the unexplained‐wealth evidence. Evidence is “relevant” if
28 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
“it has any tendency to make a fact more or less probable than
it would be without the evidence.” Fed. R. Evid. 401(a). Car‐
rera establishes that for unexplained‐wealth evidence in drug
cases to be “relevant” under Rule 401, the government must
lay the foundation by meeting the following three require‐
ments:
(1) the evidence presented creates an inference that
the defendant was involved in drug trafficking; (2)
the unexplained wealth was acquired during the pe‐
riod in which the drug crime allegedly occurred; and
(3) the government presents other evidence to sup‐
port the charge, including evidence that the income
was not obtained through legitimate means.
Carrera, 259 F.3d at 829.6
The third prong of Carrera stands for the proposition that
evidence of wealth is not probative of involvement in criminal
activity in the absence of evidence that the wealth could not
have been earned legitimately (for when a billionaire buys a
multi‐million dollar home, no inference can be drawn that the
money came from criminal activity). Instead, Carrera requires
that to render the evidence relevant, the government must
present evidence “that the income was not obtained through
legitimate means.” Id.
That means, however, that the relevance of unexplained‐
wealth evidence depends on a fact—namely, the “fact” that
the income was not obtained through legitimate means. As
Federal Rule of Evidence 104(b) explains: “When the rele‐
vance of evidence depends on whether a fact exists, proof
6 Defendants do not appear to contest that the government satisfied
prongs one and two of Carrera, so we do not address those prongs.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 29
must be introduced sufficient to support a finding that the fact
does exist.”
This means that the district court must determine that suf‐
ficient evidence exists to find that the wealth was not derived
from legitimate sources, but after that, the jury evaluates
whether the fact exists.7 Thus, in order to introduce evidence
of unexplained wealth, the government must introduce suffi‐
cient evidence upon which a reasonable fact finder could con‐
clude that the wealth was not from a legitimate source.
That does not mean that lack of a legitimate source of in‐
come must be undisputed. A dispute as to the legitimacy of the
employment goes to the weight, not the admissibility of the
government’s unexplained‐wealth evidence. Cf. Carrera, 259
F.3d at 829 (finding that where testimony about the defend‐
ant’s employment was ambiguous, the district court did not
7 The Advisory Committee Notes confirm this proposition:
If preliminary questions of conditional relevancy were
determined solely by the judge, … the functioning of the
jury as a trier of fact would be greatly restricted and in
some cases virtually destroyed. These are appropriate
questions for juries. Accepted treatment, as provided in
the rule, is consistent with that given fact questions gen‐
erally. The judge makes a preliminary determination
whether the foundation evidence is sufficient to support
a finding of fulfillment of the condition. If so, the item is
admitted. If after all the evidence on the issue is in, pro
and con, the jury could reasonably conclude that fulfill‐
ment of the condition is not established, the issue is for
them. If the evidence is not such as to allow a finding, the
judge withdraws the matter from their consideration.
Fed. R. Evid. 104(b), 1972 advisory committee note to subsection (b).
30 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
“abuse[] its discretion in finding that the government had pre‐
sented at least some evidence that the unexplained wealth was
not derived from legitimate means.” (emphasis added)).
a. Relevance of Unexplained Wealth in Hector’s Case
Because Hector objected to the government’s use of finan‐
cial evidence and its corresponding unexplained‐wealth ar‐
gument, our review is for an abuse of discretion. Id. at 828.
The government produced sufficient evidence that Hector
did not have a legitimate source of income. The government
introduced evidence that on a mortgage application and ve‐
hicle financing applications, Hector represented that he
worked at Platinum Motors. But the owner of Platinum Mo‐
tors testified that Hector was not an employee, and that Hec‐
tor merely withdrew a fraudulent paycheck so that it would
appear that he had a legitimate job. That evidence is sufficient
for a fact finder to conclude that Hector did not have legiti‐
mate income, making unexplained‐wealth evidence relevant.
It is then a question for the jury whether Hector’s lavish life‐
style was the result of legitimate employment at Platinum
Motors or of criminal activity.
Importantly, Hector does not argue on appeal that he had
other legitimate sources of income that the government delib‐
erately withheld. He only reasserts that he was an employee
of Platinum Motors—which was disputed by the testimony at
trial and properly left to the jury to evaluate.
Hector argues that the government did not satisfy the
third prong of Carrera because it must present an objective fi‐
nancial picture with the defendant’s tax returns and bank
statements. Hector reads too much into the third prong of Car‐
rera.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 31
We have never said that there is a particular type of proof
the government must use to show lack of legitimate income.
See, e.g., Carrera, 259 F.3d at 828–29 (testimony of the defend‐
ant); United States v. Harris, 536 F.3d 798, 811 (7th Cir. 2008)
(testimony of the defendant’s girlfriend), overruled on other
grounds by United States v. Corner, 598 F.3d 411 (7th Cir. 2010);
United States v. Smith, 308 F.3d 726, 737 (7th Cir. 2002) (tax rec‐
ords). Rather, the type of evidence used may bear on the reli‐
ability of the evidence—a question for the jury—not its admis‐
sibility. Cf. Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012)
(“[S]tatutes and rules ordinarily govern the admissibility of
evidence, and juries are assigned the task of determining the
reliability of the evidence presented at trial.”).
As an aside, we are not even sure that introduction of Hec‐
tor’s tax returns would have been probative of the legitimacy
of his income. Presumably Hector’s tax returns would reflect
the income he received from Platinum Motors’ payroll. Re‐
porting his Platinum Motors’ income on a tax return does not
transform his employment with that company from illegiti‐
mate to legitimate. Rather, Corral’s and Flores’s testimony was
that Hector’s employment was illegitimate and that he in‐
vested in Platinum Motors to force Corral into giving him
paychecks to make his income appear legitimate. That factual
dispute was for the jury to resolve, not for the district court to
resolve when deciding whether evidence of unexplained
wealth was admissible.
All this is to say that the district court did not abuse its
discretion in admitting evidence of Hector’s unexplained
wealth, nor do we find any reason to believe that it abused its
discretion in weighing the evidence under Rule 403 given
32 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Hector’s extensive wealth despite his lack of legitimate in‐
come.
b. Relevance of Unexplained Wealth in Lewellen’s Case
Because Lewellen did not object to the admission of his fi‐
nancial evidence or the government’s unexplained‐wealth ar‐
gument,8 our review is only for plain error. Carrera, 259 F.3d
at 828.
At issue, again, is the third prong of Carrera, which re‐
quires the government to present evidence that the income
“was not obtained through legitimate means.” Id. at 829. Lew‐
ellen’s argument, however, is distinct from that of Hector be‐
cause Lewellen undisputedly had some legitimate sources of
income. The error comes from the government’s failure to
fully present the extent of his legitimate income.
There is no requirement that to rely on an unexplained‐
wealth theory, the defendant must have no source of legiti‐
mate income. But where a defendant does have a legitimate
source of income, it follows that in order to rely on a theory of
unexplained wealth, the government must present sufficient
evidence upon which a jury could conclude that the defend‐
ant’s wealth was inconsistent with his legitimate income.
8 The district court did order that objections raised by co‐Defendants ap‐
plied to every other Defendant. Although Hector objected to evidence of
his unexplained wealth, the objection was made after all of Lewellen’s fi‐
nancial evidence had been admitted. In addition, Hector did not raise the
specific factual argument advanced by Lewellen—that the government
could not argue he had unexplained wealth because it did not prove the
amount of his legitimate income. Therefore, Lewellen’s specific objection
was not preserved.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 33
As an initial matter, the government does not have to dis‐
prove every theoretically possible source of income. In Car‐
rera, the defendant’s testimony that he was unemployed was
sufficient to argue that the $928 in cash in his wallet was “un‐
explained wealth.” Id. at 829. We did not require evidence that
it was not the result of, say, an inheritance or settlement.
For that reason, we find no error in the government not
disproving Lewellen’s claim of a workplace‐injury settlement
or his wife’s car‐accident settlement. The only evidence of the
existence of these sources of funds came from Lewellen’s hear‐
say statements to an associate when asked where he got all of
his money. Moreover, the government did present some evi‐
dence that Lewellen’s workplace injury settlement was false
because his CPD file made no mention of it. The jury had
enough information to evaluate the reliability of the existence
of that income, and we decline to impose a requirement that
the government conclusively disprove them.
With respect to Lewellen’s homebuilding business, how‐
ever, the government did not present sufficient evidence to
support an unexplained‐wealth theory. In fact, there was no
evidence of the amount of legitimate income Lewellen earned
in his homebuilding business. Without that evidence, it is im‐
possible to evaluate whether the money he was spending was
inconsistent with the money he was earning. For that reason,
the characterization of Lewellen’s wealth after 1999 as “unex‐
plained” was improper.
Any error, however, was not a plain error warranting re‐
trial. Most of the evidence introduced was admissible on a dif‐
ferent theory of relevance: excessive cash. Large amounts of
cash may be relevant because they “show[] co‐conspirators
were involved in a large‐scale [drug] conspiracy.” United
34 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
States v. Duran, 407 F.3d 828, 837 (7th Cir. 2005) (alteration in
original and internal quotation marks omitted); see also United
v. States Chavis, 429 F.3d 662, 669–70 (7th Cir. 2005) (large
amount of cash relevant evidence of drug conspiracy).
Lewellen’s use of large amounts of cash was inde‐
pendently relevant as evidence of his involvement in a drug
conspiracy, especially in light of the fact that witnesses testi‐
fied that his use of the cash in the particular circumstances
was unusual. See United States v. $242,484.00, 389 F.3d 1149,
1161 (11th Cir. 2004) (“A common sense reality of everyday life
is that legitimate businesses do not transport large quantities
of cash rubber‐banded into bundles.”). Therefore, any error in
admission of cash evidence on a theory of unexplained‐
wealth did not prejudice Lewellen.
There are a few pieces of evidence the government intro‐
duced, however, that are not cash: Lewellen’s $1.2 million
down payment on land to build a subdivision; his company’s
ownership of a $125,000 excavator; and the value of the cars
he purchased that was not in cash. Additional evidence about
Lewellen’s business, namely, that he also wrote checks for
hundreds of thousands of dollars, was elicited by Lewellen in
support of his argument that any cash he was spending was a
small portion of his company’s purchases.
Any erroneous admission of the other financial evidence
did not prejudice Lewellen. In fact, it supports Lewellen’s the‐
ory that he ran a successful business venture with legitimate,
high‐value transactions. Lewellen argued this point in clos‐
ing. Because the jury was able to evaluate the probative value
of Lewellen’s wealth, we find that any improperly admitted
evidence of non‐cash expenditures could not have impacted
the verdict.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 35
H. Out‐of‐Court Identification of Sparkman
Sparkman argues that the district court improperly admit‐
ted Avila’s identification because the identification was im‐
permissibly suggestive.
Avila, a kidnapping victim, testified at trial but did not
identify Sparkman in court as his assailant. Instead, the gov‐
ernment introduced Exhibit 376, a photo array of six African‐
American males that Avila was shown in December 2009.
Avila testified that he initialed the photo of the man who en‐
tered his home. Avila’s initials in Exhibit 376 appeared on a
photo of Sparkman.
After Avila testified, the government recalled Officer
Healy to describe the circumstances of Avila’s identification.
Officer Healy testified that he interviewed Avila in December
2009 and showed him photo spreads to “see if he could iden‐
tify any of the offenders in the home invasion or the prior in‐
cidents.” (Trial Tr. 4458.) Sparkman objected to the testimony,
arguing that it was hearsay and improper bolstering.
The district court overruled the objections, on the condi‐
tion that Officer Healy not testify that Avila identified Spark‐
man. Officer Healy then testified that he assembled the photo
spreads using driver’s license photos and mug shots of per‐
sons that looked like Sparkman and told Avila to initial a
photo if he recognized it to be the individual who entered his
home.
Sparkman argues both that the photo array itself should
have been suppressed because it is unduly suggestive and
that Officer Healy’s testimony about the photo array was in‐
admissible hearsay and improper bolstering.
36 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Although we review a district court’s interpretation of the
law and rules of evidence de novo, its ultimate decision to ad‐
mit or exclude evidence is reviewed for an abuse of discretion.
United States v. Rogers, 587 F.3d 816, 819 (7th Cir. 2009).
1. Admission of the Photo Array
On appeal, Sparkman argues that the photo array was un‐
duly suggestive in violation of due process. Manson v.
Brathwaite, 432 U.S. 98, 113 (1977). But Sparkman has waived
(and not merely forfeited) any argument about the sugges‐
tiveness of the photo array because he did not file a “motion
to suppress” the photo array prior to trial. Fed. R. Crim. P.
12(b)(3)(C); United States v. Acox, 595 F.3d 729, 733–34 (7th Cir.
2010).
Sparkman attempts to distinguish Acox on the grounds
that Acox involved in‐court testimony about the illegal out‐of‐
court identification, whereas here, he was objecting to the
photo array itself. That is irrelevant.
The operative question is whether Sparkman’s objection is
in fact a “motion to suppress.” Acox, 595 F.3d at 733. As Acox
makes clear, a “motion to suppress” is any objection outside
the Rules of Evidence:
Nothing in the Rules of Evidence allows a court to
reject relevant, inculpatory evidence seized from the
defendant’s home, heard during a wiretap, based on
his confession, or derived from a lineup. In order to
have such evidence excluded, a defendant must rely
on some norm that is outside the Rules of Evidence.
That’s the line between motions to suppress, which
must be made before trial, and objections, which
may be made during trial.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 37
Id.
On appeal,9 Sparkman’s objection to the photo array is not
an objection based on the Rules of Evidence; it is one based on
due process. Therefore, it is a “motion to suppress” that had
to be filed prior to trial. Fed. R. Crim. P. 12(b)(3)(C).
That is not the end of the inquiry, however, because the
district court may still consider an untimely motion “if the
party shows good cause.” Fed. R. Crim. P. 12(c)(3). Sparkman
did not make any motion to the district court about the alleg‐
edly suggestive identification, nor did he develop a record as
to whether there was good cause for not making the motion
before trial. Thus, we may only review “whether, if a motion
for relief had been made and denied, the district court would
have abused its discretion in concluding that the defense
lacked good cause.” Acox, 595 F.3d at 732. In other words, we
must place ourselves in the district court’s place at the time
the evidence was introduced and determine whether, at that
time, good cause existed to excuse Sparkman’s untimeliness.
Sparkman argues that the record below establishes good
cause for not filing a pretrial motion to suppress. Specifically,
he argues that “trial counsel was apparently confused about
Exhibit 376 having only six people in it when Avila was
shown many more photos including some of people of differ‐
ent races … than Sparkman. … Trial counsel was clearly sur‐
prised by Exhibit 376 and neither the judge nor the prosecutor
argued that this objection should have been raised in a motion
to suppress ….” (Sparkman’s Reply Br. 3–4.)
9 Sparkman objected to the photo array at trial, but not on the ground that
the photo array was “unduly suggestive.”
38 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
But Sparkman’s argument is a mischaracterization of the
record. Sparkman’s counsel did not indicate surprise at the
existence of Exhibit 376. He never said he was unaware of the
exhibit or that he did not know Avila was shown a photo ar‐
ray of six African‐American men.
Rather, his objection was for a lack of foundation neces‐
sary to admit the exhibit. The objection arose from the follow‐
ing testimony:
Q: Now, in December of 2009, did agents from the
DEA come and speak to you about what happened
at your house?
A: Yes.
Q: And at that time did they show you a series of
photographs of African‐American men?
A: They showed me a lot of pictures of different
races, I think.
(Trial. Tr. 3830.)
When the government sought to introduce the exhibit of
only African‐American males, Sparkman objected. During a
sidebar, he explained the basis for his objection:
[Sparkman]: The point is that they have not estab‐
lished that they showed him separately some kind
of an array of African‐Americans. All he said is he
saw a bunch of photos, over 120.
(Id. at 3832.)
After continued discussions during sidebar, the following
occurred:
The Court: … We know he was shown an array of
only African‐Americans.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 39
[Sparkman]: We don’t know that.
The Court: Otherwise there would have been a mo‐
tion to suppress.
[Sparkman]: He was not asked that question.
The Court: And you say he has to be asked that ques‐
tion?
[Sparkman]: I think he should be. He said he saw 120
photos.
(Id. at 3836 (emphasis added).)
Sparkman was not objecting on the grounds that he was
unaware of the exhibit, but rather on the ground that the wit‐
ness had not testified that he was separately shown an array
of six African‐American men—a proper trial objection based
on lack of foundation.
An objection on other grounds does not establish good
cause for not filing a motion to suppress the photo array be‐
cause of its undue suggestiveness. Because Sparkman does
not direct us to any other evidence in the record to establish
good cause for not filing the motion to suppress before trial,
we cannot say that the district court would have abused its
discretion in denying it at trial as untimely.
2. Officer’s Testimony about the Out‐of‐Court Identification
We turn now to Sparkman’s argument that Officer Healy’s
testimony about the circumstances of Avila’s identification is
inadmissible hearsay and improper bolstering.
Hearsay is “a statement that: (1) the declarant does not
make while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter as‐
serted.” Fed. R. Evid. 801(c). Officer Healy’s testimony about
40 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
assembling the photo array is not hearsay because it is not an
“out‐of‐court statement.” Officer Healy was simply recount‐
ing his own conduct in creating the photo array, namely that
he “used driver’s license photos or mug shots …” and “[t]ried
to find pictures that were similar to the—our suspect.” (Trial
Tr. 4468.) There is no “out‐of‐court statement” contained
therein; these are statements Officer Healy made in court.
There are, however, two out‐of‐court statements. Officer
Healy testified that he “[t]old [Avila] that the person who or
persons who entered his house may or may not be in this
group of photos.” (Id.) Officer Healy also testified that he told
Avila “[t]o put his initials on the photo.” (Id.)
Despite being out‐of‐court statements, these are not hear‐
say because they are not being used “to prove the truth of the
matter asserted.” In fact, neither of these statements can even
be true or false. That is because “an order … is not capable of
being true or false, and thus it is not offered for the truth of
any matter asserted.” United States v. Keane, 522 F.2d 534, 558
(7th Cir. 1975); see also United States v. Robinzine, 80 F.3d 246,
252 (7th Cir. 1996) (“In fact, the statement by [the declarant]
was not even a factual one; it was a request or an order that
did not actually assert anything. It could not be hearsay, since
it made no assertion of fact that could be true or false.”). In‐
stead, the statements are used for the purpose of showing that
Officer Healy gave the instructions in order to rebut Spark‐
man’s insinuation that Officer Healy conducted a suggestive
identification procedure.
Sparkman, however, places great weight on the fact that
by saying that he told Avila “[t]o put his initials on the photo”
and by showing Exhibit 376 with Avila’s initials on it, it was
the functional equivalent of Officer Healy testifying that Avila
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 41
told him the perpetrator was Sparkman—an assertion admit‐
ted for its truth. (Trial Tr. 4468.)
But Federal Rule of Evidence 801(d)(1)(C) excludes from
hearsay a statement where “[t]he declarant testifies and is
subject to cross‐examination about a prior statement, and the
statement … identifies a person as someone the declarant per‐
ceived earlier.” Therefore, even if Officer Healy had testified
that Avila said Sparkman was the perpetrator, his testimony
would be excluded from hearsay under 801(d)(1)(C). All that
the rule requires is that the declarant testifies and is subject to
cross‐examination, which Avila was, and that the statement is
one of identification, which this was.
Contrary to Sparkman’s argument, there is no per se re‐
quirement in Rule 801(d)(1)(C) that the witness “forgets, or
changes, his testimony at trial.” United States v. Foster, 652 F.3d
776, 788–89 (7th Cir. 2009) (internal quotation marks omitted).
Rather, a witness being unable to make an identification at
trial is just one example of a common circumstance in which
Rule 801(d)(1)(C) is invoked. See United States v. Brink, 39 F.3d
419, 426 (3d Cir. 1994) (noting that “[g]enerally, evidence is ad‐
mitted under Rule 801(d)(1)(C) when a witness has identified
the defendant in a lineup or photospread, but forgets, or
changes, his testimony at trial” (emphasis added)). That does
not mean, however, that there is an extra‐textual requirement
that the witness actually forgets or changes his identification.
No such requirement exists. 10
10 Sparkman argues that testimony about the identification could not be
admitted under Rule 801(d)(1)(C) because the identification was imper‐
missibly suggestive. Sparkman points to United States v. Kaquatosh, 242 F.
Supp. 2d 562 (E.D. Wis. 2003), for support. In that case, the district court
42 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Sparkman also argues that permitting Officer Healy to tes‐
tify about the circumstances surrounding Avila’s identifica‐
tion amounts to improper bolstering. “Bolstering is the prac‐
tice of offering evidence solely for the purpose of enhancing a
witness’s credibility before that credibility is attacked. …
Once a witness’s credibility has been attacked, however, the
non‐attacking party is permitted to admit evidence to rehabil‐
itate the witness.” United States v. Lindemann, 85 F.3d 1232,
1242 (7th Cir. 1996) (citation and internal quotation marks
omitted).
The testimony admitted in this case from Officer Healy
was not improper bolstering of Avila’s identification testi‐
mony. Rather, Officer Healy’s testimony was to specific facts
within his own personal knowledge—his creation of the
photo array and the instructions he gave. Even assuming that
describing facts within his knowledge enhanced Avila’s cred‐
ibility, it was not improper bolstering because Avila’s credibil‐
ity—namely, his ability to identify the perpetrator—had been
attacked. The defense on cross‐examination had already tried
to show that Avila’s memory was faulty and that he had
changed his descriptions. Officer Healy’s testimony was used
indicated that Rule 801(d)(1)(C) is limited to identifications that are not
impermissibly suggestive to “prevent Rule 801(d)(1)(C) from becoming an
end run around the constitutional standards governing pre‐trial identifi‐
cations.” Id. at 564.
Sparkman’s reliance on Kaquatosh misses the point. Sparkman never es‐
tablished that there was an impermissibly suggestive photo array because
he did not file a motion to suppress the photo array before trial, at which
time the suggestiveness (or lack thereof) would have been adjudicated.
Kaquatosh instead stands for the obvious proposition that Rule
801(d)(1)(C) cannot be used to override a valid motion to suppress, a mo‐
tion Sparkman waived.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 43
to rehabilitate Avila’s identification by rebutting the defense’s
insinuation that the identification procedure was suggestive.
Moreover, the district court did not abuse its discretion in
concluding that the probative value of Healy’s description of
how he prepared the photo array was substantially out‐
weighed by unfair prejudice, in particular given the defense’s
attempts to discredit Avila’s identification from the photo ar‐
ray. See Fed. R. Evid. 403.
I. Validity of Cardena’s Convictions
Cardena argues that there was insufficient evidence to
sustain his convictions, in part because the district court im‐
properly admitted (1) his offer to cooperate with law enforce‐
ment and (2) statements of co‐conspirators. Because Car‐
dena’s evidentiary challenges are without merit, we find that
the evidence was sufficient to sustain his convictions.
Cardena was charged with narcotics conspiracy and nar‐
cotics possession arising from his participation in the Joliet
robbery. Co‐conspirator Flores was the main witness against
him. Flores testified that in 2006, Hector called him and told
him to meet him in Joliet and “come ready” with Cardena.
(Trial Tr. 2095.) At the meeting, Hector and Jorge told Flores,
Cardena, and Sparkman that they were watching and in‐
tended to rob a “house that has drugs in it.” (Id. at 2096.)
Flores testified that they did commit the robbery. Flores
said he went to the front door, while Cardena and the other
co‐conspirators went around the back of the house. Finding
the house empty, Cardena entered through the back door and
let Flores in the front door. The group searched the house and
found fifteen boxes filled with plastic‐wrapped cocaine. They
loaded the boxes into their vehicle and left.
44 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Based on information from Flores, law enforcement went
to interview Cardena for the first time on April 8, 2010. They
told Cardena they were investigating kidnappings and co‐
caine theft from the Joliet house. Agent Reynolds and Officer
Healy testified that Cardena said he did help steal cocaine
from the Joliet house by loading the boxes into the vehicle.
Cardena initially agreed to cooperate. Later that same day, he
called the officers and told them that he was interested in co‐
operating, but that his lawyer had advised him not to talk to
them. Phone records confirm that Officer Healy and Cardena
spoke that evening.
It was not until January 3, 2011, that Cardena encountered
law enforcement again. This time, they went to his house to
arrest him. Agent Reynolds testified that after placing Car‐
dena under arrest, Cardena “asked if there was information
that he could provide regarding other individuals that may
help him.” (Trial Tr. 4493.)
1. Admissibility of Cardena’s Offer to Cooperate
Cardena moved in limine to bar evidence of his post‐arrest
question to Agent Reynolds, in which he asked if he could
help himself by providing information about the others. The
district court denied the motion.
We review a district court’s interpretation of the rules of
evidence de novo, but we review its ultimate decision to admit
or exclude evidence for an abuse of discretion. Rogers, 587 F.3d
at 819.
Cardena argues that his question to the officer is hearsay
that does not fall within the exception to hearsay for a state‐
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 45
ment against penal interest. Fed. R. Evid. 804(b)(3). He con‐
tends that a statement intended to “curry favor” with the gov‐
ernment is not a statement against penal interest.
Cardena’s reliance on Rule 804(b)(3) is misplaced. His of‐
fer to cooperate is a non‐hearsay statement of a party oppo‐
nent admissible under Rule 801(d)(2)(A), which does not in‐
clude any requirement that the statement be inculpatory. As
we have explained before, statements admitted under Rule
801(d)(2)(A) “need neither be incriminating, inculpatory,
against interest, nor otherwise inherently damaging to the de‐
clarant’s case. Rule 801(d)(2)(A) simply admits those state‐
ments made by one party, but offered as evidence by the op‐
posing party.” United States v. Reed, 227 F.3d 763, 770 (7th Cir.
2000). Cardena’s offer to cooperate was a statement made by
him offered against him by the opposing party, and therefore
was admissible under Rule 801(d)(2)(A) as a statement of a
party opponent.
Cardena also argues that his post‐arrest offer to cooperate
should have been excluded because it was not relevant. Fed.
R. Evid. 401 & 402. It appears that we have not yet held that
offers to cooperate are relevant evidence tending to show con‐
sciousness of guilt. See United States v. Lowis, 174 F.3d 881, 884–
85 (7th Cir. 1999) (declining to evaluate whether offers to co‐
operate are relevant as consciousness of guilt). Three sister cir‐
cuits that have considered the question have concluded that
an offer to cooperate is probative of consciousness of guilt. See
United States v. McCauley, 715 F.3d 1119, 1126 (8th Cir. 2013);
United States v. Levy, 578 F.2d 896, 901–02 (2d Cir. 1978); United
States v. Galloway, 274 F. App’x 241, 248 (4th Cir. 2008).
We agree with our sister circuits: an offer to cooperate to
get oneself out of trouble is relevant evidence tending to show
46 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
consciousness of guilt. See Fed. R. Civ. P. 401. Cardena’s ques‐
tion asking if he could help himself by giving information
about the others tends to show that Cardena was somehow
involved in the criminal activity. Admitting to having infor‐
mation about the crime and attempting to help himself after
he had already been arrested implies some level of involve‐
ment in the crime.
Relevance, however, is not the end of the inquiry because
relevant evidence may still be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.
Fed. R. Evid. 403. The district court did not abuse its discre‐
tion in admitting the evidence. Cardena’s offer to cooperate is
quite probative of his involvement in criminal activity be‐
cause a person who is innocent of all wrongdoing would not
likely make an offer to cooperate in exchange for getting him‐
self out of trouble. Cardena has also not explained how there
is any danger of unfair prejudice resulting from the admission
of the statement; it is relevant, probative, and is not emotion‐
ally charged like the typical evidence excluded under Rule
403. See United States v. Vretta, 790 F.2d 651, 655 (7th Cir. 1986).
Thus, we conclude that the district court did not abuse its dis‐
cretion in admitting it.
2. Co‐Conspirator Statements Against Cardena
Cardena11 also argues that the district court erred in its ad‐
mission of co‐conspirator statements against him.
11 In his brief, Hector “adopt[ed]” this argument, which is contained in
Cardena’s brief. To the extent that the challenge is applicable to both De‐
fendants—i.e., the district court’s alleged failure to make a clear ruling—
we will address it. Most of Cardena’s argument, however, relates solely to
his unique factual situation.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 47
Before trial, the government filed a Santiago proffer outlin‐
ing the co‐conspirator statements it intended to use at trial.
Fed. R. Evid. 801(d)(2)(E); United States v. Santiago, 582 F.2d
1128, 1131 (7th Cir. 1978), overruled on other grounds by Bourjaily
v. United States, 483 U.S. 171 (1987). The proffer summarized
the conspiracies, the crimes committed in furtherance of the
conspiracies, and co‐conspirator statements the government
intended to introduce against particular Defendants.
Cardena responded to the proffer, arguing that his role in
the conspiracy was not adequately explained and noting that
the only statements that the government listed regarding Car‐
dena was the testimony of Flores regarding the 2006 Joliet rob‐
bery. After recounting the statements, Cardena wrote: “If the
Court were to grant the government’s request to use co‐con‐
spirator statements as evidence against Cardena, it should be
limited to these specific statements.” (R. 546 at 2.) His primary
contention in his response was that the court would need to
provide a limiting instruction for co‐conspirator statements
about any other crimes.
On November 14, 2011, the district court held a hearing on
the proffer and stated:
Let’s talk about Santiago. I am going to tell you what
problems I found with the Santiago presentation.
And you can assume that if I don’t point something
out as a problem, I found that the government pre‐
sented enough evidence to meet its initial Santiago
burden.
(Hr’g Tr. 190–91, Nov. 14, 2011.)
The court then discussed its two reservations about the
proffer and excluded only co‐conspirator statements against
48 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Lewellen from 1996 to 1998. No Defendant requested a more
definitive ruling on the Santiago proffer.
At trial, Flores testified about the Joliet robbery, including
the conversation in which Hector and Jorge told Cardena that
they wanted to rob a “house that has drugs in it.” (Trial Tr.
2096.) Cardena did not object to Flores’s testimony.
In his post‐trial motion for a new trial, Cardena argued
that the district court did not make a clear ruling on the San‐
tiago proffer. The district court rejected that argument:
With regard to the Santiago proffer, the court dis‐
cussed the issues it had with the proffer at length
with counsel …. The record establishes that all of the
parties understood the proffer to have generally
been accepted, save for those particular issues that
the court raised in a hearing on the matter. … To the
extent that the court did not enter a formal written
ruling on the Santiago proffer, there is no harm to
Cardena. The co‐conspirator statements admitted
into evidence were adequately supported by proof
of the conspiracies to which they related.
(R. 1063 at 1.)
Generally, we review a district court’s factual findings
with respect to a Santiago proffer made pursuant to Rule
801(d)(2)(E) for clear error. Alviar, 573 F.3d at 540. Defendants,
however, did not object on the grounds that there was not a
clear ruling on the Santiago proffer, so we review that issue for
plain error. See United States v. Stephenson, 53 F.3d 836, 843 (7th
Cir. 1995).
Federal Rule of Evidence 801(d)(2)(E) deems a statement
to not be hearsay if it is “offered against an opposing party
[and] … was made by the party’s coconspirator during and in
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 49
furtherance of the conspiracy.” District courts must make a
preliminary determination of admissibility of co‐conspirator
statements. See Bourjaily, 483 U.S. at 175.
This court has approved doing so through the use of a pre‐
trial Santiago proffer. With a Santiago proffer, a district court
may “conditionally admit coconspirator statements” if the
government makes a showing that it can and will meet the
requirements for admissibility during trial. United States v.
Haynie, 179 F.3d 1048, 1050 (7th Cir. 1999). If, however, after
the government rests, it “has not met its burden to show that
the statements are admissible, the defendant can move for a
mistrial or to have the statements stricken.” Id.
Cardena’s first claim is that the district court did not rule
on the Santiago proffer at all. That claim is meritless. The dis‐
trict court made an oral ruling on the Santiago proffer, which
is not improper. See United States v. Yoon, 128 F.3d 515, 525 (7th
Cir. 1997) (reviewing oral Santiago‐proffer ruling). The district
court informed the parties that it “found that the government
presented enough evidence to meet its initial Santiago bur‐
den,” with the exception of a few issues, which the court then
discussed. (Hr’g Tr. 190–91, Nov. 14, 2011.) The court’s ruling
was clear, was reiterated on multiple occasions, and was re‐
lied upon by Defendants during trial. Moreover, Cardena
never asked for a clarification of the ruling. See United States
v. Downs, 230 F.3d 272, 274 (7th Cir. 2000) (rejecting argument
that ruling was unclear where the defendant “never asked the
court for clarification”).
Cardena’s second challenge on appeal is that admission of
Flores’s testimony was improper because Agent Reynolds’s
testimony that Cardena told him he had participated in the
50 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Joliet robbery was insufficient to corroborate Flores’s testi‐
mony.
We find no error in the district court’s admission of Flores’s
testimony against Cardena. Agent Reynolds’s testimony that
Cardena offered to cooperate is admissible and corroborates
Cardena’s participation. Coconspirator Flores testified that
he, along with Cardena, Hector, and Jorge, robbed the house
in Joliet for cocaine. The evidence at trial was sufficient to find
that a conspiracy existed, that Cardena, Hector, Jorge, and
Flores were members, and that the statements were made
during and in furtherance of the conspiracy. Bourjaily, 483 U.S.
at 175.
3. Sufficiency of the Evidence to Convict Cardena
Finally, Cardena challenges the sufficiency of the evidence
to sustain his convictions, arguing that the government did
not present evidence to prove that he conspired to commit
robbery of a controlled substance.
When “reviewing a challenge to the sufficiency of the evi‐
dence, we view all the evidence and draw all reasonable in‐
ferences in the light most favorable to the prosecution and up‐
hold the verdict if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” United States v. Khattab, 536 F.3d 765, 769 (7th Cir.
2008) (internal quotation marks omitted). We will not “weigh
the evidence or second‐guess the jury’s credibility determina‐
tions.” United States v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006)
(internal quotation marks omitted).
We have already established that co‐conspirator state‐
ments and testimony about Cardena’s offer to cooperate were
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 51
admissible evidence. The remaining question is whether it
was sufficient to support Cardena’s conviction.
A conspiracy charge pursuant to 21 U.S.C. § 846 requires
the government to prove beyond a reasonable doubt that (1)
“a conspiracy existed” and (2) the “defendant knowingly and
willfully participated” in it. Smith v. United States, 133 S. Ct.
714, 719 (2013). To establish knowing and willful participa‐
tion, “[t]he government must put forth substantial evidence
that the defendant knew of the illegal objective of the conspir‐
acy and agreed to participate.” United States v. Salinas, 763 F.3d
869, 877 (7th Cir. 2014) (internal quotation marks omitted). In
the context of a narcotics conspiracy, the government must
prove the defendant knew “that the substance in question is a
controlled substance.” Id.
Cardena does not spend much time arguing that the gov‐
ernment did not prove that a conspiracy existed and that he
knowingly and willfully participated in it. The evidence is
sufficient to support that conclusion. Flores’s testimony that
the group agreed to rob the house in Joliet and did rob the
house in Joliet demonstrates the conspiracy’s existence. Flo‐
res’s testimony is corroborated by Cardena’s own acknowl‐
edgment to the officers that he participated in the Joliet rob‐
bery.
Instead, Cardena primarily argues that the evidence was
insufficient to prove that he knew they were stealing cocaine.
We disagree. The evidence is sufficient to find that he know‐
ingly and willfully participated in a conspiracy to steal co‐
caine. Flores testified that at the in‐person meeting Hector and
Jorge told the group they would be robbing a house that had
52 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
drugs in it, and that they did find cocaine in the house. Defi‐
ciencies in Flores’s testimony were fully explored and argued
to the jury.
Moreover, Agent Reynolds testified that he had no doubt
that Cardena told him he participated in stealing boxes of co‐
caine from the house in Joliet. The fact that Agent Reynolds
did not include the mention of “cocaine” in his first interview
report was argued to the jury.
The testimony adduced at trial was sufficient for a rational
juror to find beyond a reasonable doubt that Cardena know‐
ingly and willfully participated in a narcotics conspiracy. Car‐
dena was told before the robbery they were looking for drugs,
and Cardena admitted to law enforcement that he helped
steal cocaine. The credibility of Flores’s and Agent Reynolds’s
testimony was before the jury, and it found them to be credi‐
ble.
J. § 924(c) Convictions in Light of Johnson v. United States12
Defendants Jorge, Hector, and Sparkman argue that their
convictions on counts 8 and 11 for using a firearm during a
crime of violence, 18 U.S.C. § 924(c)(1)(A), must be reversed
in light of Johnson v. United States, 135 S. Ct. 2551 (2015). We
disagree.
Although Johnson itself had not been decided at the time
of Defendants’ trials, Defendants could have raised the issue.
They did not, meaning that “our review is for plain error.”
United States v. Hurlburt, No. 14‐3611, 2016 WL 4506717, at *2
12 Defendants requested supplemental briefing on this issue after the case
was argued. We granted the motion on July 12, 2016.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 53
(7th Cir. Aug. 29, 2016). To correct a forfeited error, a defend‐
ant must prove that (1) there was an error; (2) the error was
plain; (3) the error affected the defendant’s substantial rights;
and (4) the error “seriously impugn[s] the fairness, integrity,
or public reputation of judicial proceedings.” United States v.
Anderson, 604 F.3d 997, 1002 (7th Cir. 2010).
The first step in our analysis is to answer whether there
was an error. Johnson held that the “residual clause” of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was
unconstitutionally vague in violation of the Due Process
Clause. 135 S. Ct. 2551 at 2557. That provision defined “vio‐
lent felony” as:
[A]ny crime punishable by imprisonment for a term
exceeding one year … that—
(i) has as an element the use, attempted use,
or threatened use of physical force against
the person of another; or
(ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves con‐
duct that presents a serious potential risk of phys‐
ical injury to another
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The residual
clause allowing conviction for conduct that “presents a seri‐
ous potential risk of physical injury to another” is, the Su‐
preme Court held, unconstitutionally vague. Johnson, 135 S.
Ct. at 2557.
Defendants’ convictions were under 18 U.S.C. § 924(c),
which prohibits use of a firearm during a crime of violence.
The term “crime of violence” for purposes of that section is
defined as:
54 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
[A]n offense that is a felony and—
(A) has as an element the use, attempted use,
or threatened use of physical force against
the person or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of commit‐
ting the offense.
§ 924(c)(3) (emphasis added). Subsection (B) is virtually indis‐
tinguishable from the clause in Johnson that was found to be
unconstitutionally vague. 135 S. Ct. at 2557.
Moreover, in United States v. Vivas‐Cejas, 808 F.3d 719, 721
(7th Cir. 2015), we applied Johnson and found that it invali‐
dated the residual clause in 18 U.S.C. § 16(b), which defined a
crime of violence to include “a felony that, by its nature, in‐
volves a substantial risk that physical force against the person or
property of another may be used in the course of committing the of‐
fense.” The clause invalidated in Vivas‐Cejas is the same resid‐
ual clause contained in the provision at issue, 18 U.S.C.
§ 924(c)(3)(B). Accordingly, we hold that the residual clause in
18 U.S.C. § 924(c)(3)(B) is also unconstitutionally vague.
Having decided that subsection (B) is unconstitutionally
vague, we must then decide whether Defendants’ convictions
actually violated Johnson. For if their underlying convictions
“ha[ve] as an element the use, attempted use, or threatened
use of physical force against the person or property of an‐
other,” they may be sustained under subsection (A). See Daw‐
kins v. United States, 809 F.3d 953, 954 (7th Cir. 2016).
The crime of violence underlying Defendants’ § 924(c)
convictions was kidnapping in violation of 720 ILCS 5/10‐1,
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 55
5/10‐2. In determining whether the statute qualifies as a crime
of violence, we apply the “categorical approach” and look to
the statutory definition to see whether the elements of the of‐
fense satisfy § 924(c)(3)(A). See Taylor v. United States, 495 U.S.
575, 600 (1990).
The Illinois kidnapping statute provides:
(a) A person commits the offense of kidnapping
when he or she knowingly:
(1) and secretly confines another against his
or her will;
(2) by force or threat of imminent force car‐
ries another from one place to another with in‐
tent secretly to confine that other person against
his or her will; or
(3) by deceit or enticement induces another
to go from one place to another with intent se‐
cretly to confine that other person against his or
her will.
720 ILCS 5/10‐1. The third section—by “deceit or entice‐
ment”—does not have the use, or threatened use, of force as
an element, undoubtedly taking it outside of the scope of
§ 924(c)(3)(A).
In such situations, courts have sometimes applied the
modified categorical approach to statutes that list alternative
“elements” of committing the offense. In the modified cate‐
gorical approach, courts may look to so‐called Shepard mate‐
rial to discern which alternative element supported the de‐
fendant’s conviction. As the Supreme Court’s recent opinion
in United States v. Mathis, 136 S. Ct. 2243 (2016), makes clear,
where there is a disjunctive state statute, the court must be
56 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
careful to distinguish “elements”—which “the jury must find
beyond a reasonable doubt to convict”—and “alternative
means”—which are “various factual means of committing a
single element.” See id. at 2248–49. The former type of statute
would be divisible because it lists elements in the alternative,
thus defining multiple crimes. Id. at 2249.
Here, the statute is divisible. The Illinois kidnapping stat‐
ute does not list multiple elements with separate methods of
satisfying each element; rather, the statute lists three separate
ways of committing kidnapping. The Illinois appellate court
has referred to subsections (a)(1), (a)(2), and (a)(3) as three
“theories” of kidnapping, each with its own constituent “ele‐
ments” that must be found by the jury. People v. Robinson, No.
1‐13‐0484, 2016 WL 3384989 (Ill. App. Ct. 2016). In that case,
the prosecution chose to charge a particular theory, thereby
taking on the burden of proving that theory. The interpreta‐
tion of Illinois kidnapping as divisible is consistent with Illi‐
nois’s model jury instructions, which suggests that the jury
should be instructed on the particular theory applicable to the
case and that the jury must find the elements of the particular
theory beyond a reasonable doubt. See Ill. Pattern Jury Instr.
8.02.13
13 The jury instructions for aggravated kidnapping also presuppose charg‐
ing a particular theory of kidnapping. See Ill. Pattern Jury. Instr. 8.04, com‐
mittee note (“The underlying offense of kidnapping can be committed in
one of three ways: (1) secret confinement (see Section 10‐1(a)(1)); (2) car‐
rying another by force or threat of imminent force (see Section 10‐1(a)(2));
or (3) inducing travel by deceit or enticement (see Section 10‐1(a)(3)).
When the defendant is charged under Section 10‐1(a)(1), give this instruc‐
tion and Instruction 8.05. When the defendant is charged under Section 10‐
1(a)(2), give this instruction and Instruction 8.05A. When the defendant is
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 57
Use of the Shepard documents, as opposed to looking
merely to the elements in the statute, does not help the gov‐
ernment. The relevant Shepard documents, here the charging
documents and the jury instructions, do not establish which
“theory” of kidnapping Defendants were alleged to have
committed.
The district court instructed the jury:
Under Illinois law, a person commits the offense of
kidnapping when he or one for whose conduct he is
legally responsible, one, knowingly and secretly
confines the individual against his will, or, two,
knowingly and by force or threat of imminent force
carries the individual from one place to another with
intent secretly to confine that person against his will
or, three, knowingly and by deceit or enticement in‐
duces another person to go from one place to an‐
other place with intent secretly to confine the person
against his will.”
(Trial Tr., vol. 30B, 5448.)
Under that instruction, there is no way to determine that
Defendants were convicted of an offense that “has as an ele‐
ment the use, attempted use, or threatened use of physical
force” where there are alternative means of satisfying the kid‐
napping offense—e.g., by deceit or enticement—that do not
require the use of force. When a jury is instructed on alterna‐
tive theories of guilt, one of which is legally invalid, and re‐
turns a general verdict—as it did here—a plain error occurs.
Yates v. United States, 354 U.S. 298, 318–327 (1957), overruled on
charged under Section 10‐1(a)(3), give this instruction and Instruction
8.05B.” (emphasis added)).
58 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
other grounds by Burks v. United States, 437 U.S. 1 (1978); see also
Hurlburt, 2016 WL 4506717, at *3 (“[P]lain‐error review asks
whether the error is ‘plain’ at the time of appellate re‐
view … .”)
But even a jury‐instruction error of constitutional dimen‐
sion is subject to the familiar requirement that the error have
harmed the defendant. See Skilling v. United States, 561 U.S.
358, 414 (2010) (noting that a jury instruction error of the Yates
variety is subject to harmless‐error review); Hedgpeth v. Pulido,
555 U.S. 57, 60 (2008) (same). In other words, to constitute re‐
versible error, the plain error must have affected the defend‐
ant’s substantial rights such that there is a reasonable proba‐
bility that but for the error the outcome of the trial would have
been different. Molina‐Martinez v. United States, 136 S. Ct. 1338,
1343 (2016); United States v. McGuire, No. 15‐2071, 2016 WL
4527557, at *2 (7th Cir. Aug. 30, 2016). The analysis “requires
the same kind of inquiry” as harmless‐error review, except
that the burden is on the defendant to show prejudice. United
States v. Olano, 507 U.S. 725, 734 (1993). Defendants have not
satisfied their heavy burden of showing that the error affected
their substantial rights. United States v. Butler, 777 F.3d 382, 388
(7th Cir. 2015) (calling the plain error test “remarkably de‐
manding”).
An error will not be a “plain error” calling for appellate
intervention, despite the lack of an objection, if the trial court
or opposing party could have easily fixed the problem in re‐
sponse to a timely objection and the outcome was unlikely to
have been different. See, e.g., United States v. Ridley, 826 F.3d
437, 443 (7th Cir. 2016); United States v. Harvey, 484 F.3d 453,
458 (7th Cir. 2007) (two issues); United States v. Tejeda, 476 F.3d
471, 474–75 (7th Cir. 2007). A timely objection here would
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 59
have allowed the government to propose more specific jury
instructions narrowing the kidnapping theory to the theory
under Illinois law that includes “force or threat of imminent
force,” which satisfies the elements clause in section
924(c)(3)(A). As we explain in the following paragraphs, if the
jury had been instructed on only that narrower theory, it
would still have convicted Jorge, Hector, and Sparkman on
counts 8 and 11 for using a firearm during a crime of violence.
Count 8 charged Defendants with kidnapping Avila and
his family while carrying a firearm. Although the count 7 con‐
viction for the Avila kidnapping involved the disjunctive Illi‐
nois kidnapping jury instruction, Defendants have not shown
a reasonable probability that the outcome would have been
different had the jury been instructed only under the Illinois
kidnapping provision that has as an element the use or threat‐
ened use of force. Defendants tried to kidnap Avila three
times. During the successful attempt, Defendants carried
guns and broke down Avila’s back door with a battering ram.
Defendants ordered Avila’s family to stay in a back room and
when they left, they warned Avila’s family that if they called
the police, Defendants would return. Avila himself testified
that one Defendant ordered him to the ground and put a gun
to Avila’s head during the kidnapping. Although Defendants
relied in part on their police officer disguises to get the vic‐
tims’ to comply, to win on appeal, Defendants have to do more
than show “any possibility, no matter how unlikely, that the
jury could have convicted based exclusively on” a nonviolent
prong of the Illinois kidnapping statute. United States v. Mar‐
cus, 560 U.S. 258, 263, 266–67 (2010) (internal quotation marks
omitted). They have not done so.
60 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Count 11 charged Defendants with kidnapping Carranza
while carrying a firearm. Again, the Illinois kidnapping stat‐
ute read to the jury does not necessarily have as an element
the use or attempted use of force. As with count 8, however,
Defendants have failed to show a reasonable probability that
the outcome would have been different had the jury been
properly instructed that the kidnapping be committed by
force or threat of force. The only testimony about the Car‐
ranza kidnapping came from Carranza himself. He testified
that Defendants broke down his door, pointed a gun at him,
and ordered him to get on the floor. As Defendants left his
house, they forced Carranza into a back room and told him
that if he left they would shoot him. Because Carranza’s testi‐
mony had to have been the “sole basis for the jury’s verdict,”
Defendants have not shown a reasonable probability that the
outcome of the proceeding would have been different but for
the error. See United States v. Cureton, 739 F.3d 1032, 1046 (7th
Cir. 2014).
Because plain error is a difficult standard to meet and be‐
cause of the extensive evidence showing that the kidnappings
at issue involved the use or threatened use of force, Defend‐
ants’ have not shown that there is a reasonable probability
that the outcome of the proceeding would have been different
with a proper jury instruction. Accordingly, we affirm De‐
fendants’ convictions under § 924(c)(3).
K. Consideration of Co‐Conspirators’ Sentences for Jorge
We turn now to the sentencing challenges. Jorge argues
that the district court committed a procedural error in sen‐
tencing him because it did not adequately address his argu‐
ment that there were “unwarranted sentence disparities” be‐
tween him and the sentences given to his co‐conspirators.
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 61
Because we are vacating Jorge’s sentence, we do not dwell
on whether there was any error in the district court’s consid‐
eration of co‐conspirators’ sentences. We do, however, offer
two brief clarifications.
On appeal, Jorge compares his sentence with those of the
other Defendants who went to trial and were convicted. To
the extent Jorge argues there was an unwarranted disparity
between his sentence and Hector’s or Lewellen’s, the district
court could not have erred by failing to consider those sen‐
tences, which had not yet been imposed at the time of Jorge’s
sentencing. See United States v. Sanchez, 710 F.3d 724, 732–33
(7th Cir. 2013) (no error in not considering not‐yet‐imposed
sentence of co‐defendant), vacated on other grounds by Sanchez
v. United States, 134 S. Ct. 146 (2013).
We also wish to clarify that in considering whether there
are any “unwarranted sentence disparities” pursuant to 18
U.S.C. § 3553(a)(6), a district court may consider the sentences
imposed on cooperating co‐conspirators. See United States v.
Jones, 792 F.3d 831, 834–35 (7th Cir. 2015). But the rule only
prohibits sentence disparities that are unwarranted. It is within
the district court’s discretion to determine whether the dispar‐
ity is warranted in light of the co‐conspirator’s cooperation.
L. Second or Subsequent § 924(c) Conviction
Next, Defendants Jorge, Hector, and Sparkman argue that
the district court erred in imposing a 25‐year consecutive
mandatory minimum for a “second or subsequent” 21 U.S.C.
§ 924(c) firearm offense because (1) the offenses were in the
same indictment and (2) second or subsequent was found by
the judge, not the jury.
62 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
1. Same Indictment
Defendants argued to the district court that it could not
impose a second or subsequent § 924(c) conviction because
there was no “interval of punishment” between the two of‐
fenses. The district court rejected that argument as foreclosed
by our precedent.
We review the district court’s interpretation of § 924(c) de
novo. United States v. Cureton, 739 F.3d 1032, 1040 (7th Cir.
2014). Defendants acknowledge, however, that their argu‐
ment is foreclosed by Deal v. United States, 508 U.S. 129, 134
(1993).
Deal rejected the argument that a second or subsequent
§ 924(c) conviction can only be imposed if the second firearm
offense occurred after the first conviction. Id. at 131–34. There
is no requirement of separate indictments or an interval of
punishment. We have reiterated that conclusion many times.
See, e.g., United States v. Cheshier, 39 F. App’x 335, 336–37 (7th
Cir. 2002); United States v. Luney, 17 F. App’x 424, 425 (7th Cir.
2001). Defendants argue that Deal’s holding should be re‐
jected. They are free to ask the Supreme Court to do so.
2. Second or Subsequent Not Found by Jury
Defendants did not argue to the district court that second
or subsequent had to be found by the jury. Therefore, we re‐
view for plain error. United States v. Kirklin, 727 F.3d 711, 717
(7th Cir. 2013).
There was no error, however, because Defendants’ argu‐
ment is foreclosed by Almendarez‐Torres v. United States, which
held that recidivism is not an “element” of an offense, and so
it need not be found by a jury. 523 U.S. 224, 244–47 (1998).
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 63
We have previously “recognize[d] that there is some ten‐
sion between Alleyne and Almendarez‐Torres,” but we leave
that tension “for the Supreme Court to resolve.” United States
v. Lomax, 816 F.3d 468, 477–78 (7th Cir. 2016).
M. Alleyne Error: “Brandish” Not Found By Jury
We turn to the final argument on appeal. In light of Alleyne
v. United States, 133 S. Ct. 2151 (2013), Defendants Jorge, Hec‐
tor, and Sparkman argue that they were improperly subjected
to a 7‐year mandatory minimum on count 8 for brandishing a
firearm where the jury only convicted them of using or carry‐
ing a firearm. We agree.
Hector and Jorge raised this argument to the district court
in anticipation of Alleyne, preserving de novo review. Lomax,
816 F.3d at 477. Sparkman, however, did not raise the issue,
triggering review for plain error. Cureton, 739 F.3d at 1045.
Alleyne held that because a finding of brandishing in‐
creases the mandatory minimum, it is an “element” of the of‐
fense that must be found by the jury. 133 S. Ct. at 2155, 2162–
63. There is no doubt that it was error under Alleyne to impose
a mandatory minimum of 7 years for “brandishing” where
the jury only convicted of “use,” which has a 5‐year manda‐
tory minimum.
But the government argues that the Alleyne error does not
constitute a miscarriage of justice (or is harmless) because it is
“highly unlikely a jury would have convicted on a § 924(c)
count but acquitted [the defendant] of brandishing.” Cureton,
739 F.3d at 1045–46. We disagree.
“Brandish” means to “display all or part of the firearm, or
otherwise make the presence of the firearm known to another
person, in order to intimidate that person.” 18 U.S.C.
64 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
§ 924(c)(4). The government relies on the testimony of Flores
and Avila to establish that the guns were brandished.
Flores testified that he, Sparkman, Jorge, and Hector
planned to raid Avila’s home dressed as police officers. Flores
testified that he and Hector “brought the guns” and “had
[their] guns drawn while [Sparkman] broke the door down.”
(Trial Tr. 2130.) While outside Avila’s door, there were no peo‐
ple to intimidate. It is unclear from Flores’s testimony what
the group did with the guns after they entered the house and
found Avila’s family. We cannot say that this testimony estab‐
lishes that Defendants displayed the firearm in order to intim‐
idate another person, especially in light of the fact that Flores
testified that they used their authority as “police officers”—
not their firearms—to ensure the victims’ compliance.
The government also relies on Avila’s testimony that after
he heard his daughter scream, he went upstairs, and a man
“put a gun to [his] head.” (Trial Tr. 3837.) Avila identified this
assailant in a photo array as Sparkman, but he did not identify
Sparkman at trial. We think this case is distinguishable from
Cureton. In Cureton, the only testimony presented as to the ex‐
istence of guns was that the defendant “put the gun up to [the
witness’s] head.” 739 F.3d at 1046. The jury convicted the de‐
fendant of a § 924(c) offense on that testimony alone. Id. In this
case, however, we have overwhelming testimony from Flores
that establishes that Defendants carried guns, but only limited
evidence of brandishing—the testimony from Avila who did
not identify the assailant at trial. For that reason, we cannot
reliably say it is highly unlikely the jury could have convicted
of use but acquitted of brandishing.
The government also argues that any error “had abso‐
lutely no effect” on Hector’s and Jorge’s sentences because
Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321 65
they were sentenced above the mandatory minimum. See
United States v. Bethany, 569 F. App’x 447, 452 (7th Cir. 2014).
We disagree. Hector and Jorge were both subject to an advi‐
sory guideline range of life, but the district court did not give
either of them a life sentence, instead choosing to depart
downward significantly.
For Jorge, the district court departed downward from the
guidelines range of life to 28 years and then imposed the 7‐
year and 25‐year consecutive mandatory minimums, for a to‐
tal term of imprisonment of 60 years. For Hector, the district
court departed downward from life to 18 years and then im‐
posed the consecutive 7‐year and 25‐year mandatory mini‐
mums, for a total term of 50 years’ imprisonment. Because the
mandatory minimum of 7 years went into the district court’s
determination of their ultimate sentences, we cannot say that
the Alleyne error was harmless.
We note that this case is unusual because it is not often that
the guidelines range is only life imprisonment. It appears that
what the district court did, in effect, was treat the mandatory
minimum as a lower bracket for purposes of deciding what
sentence to give Defendants and then sentenced them in be‐
tween 42 years and life.14 For that reason, too, we cannot say
that lowering the mandatory minimum by 2 years would
have “absolutely no effect” because the district court would
be considering a range of 40 years to life. Therefore, Jorge and
14 That fact distinguishes this case from those where the mandatory mini‐
mum was originally below the guidelines range, the guidelines range does
not change, and the district court thought a within‐guidelines sentence
was appropriate. See United States v. Bethany, 569 F. App’x 447, 452 (7th
Cir. 2014). In such an instance, lowering the mandatory minimum would
not affect the district court’s choice of a within‐guidelines sentence.
66 Nos. 12‐3680, 12‐3683, 12‐3747, 13‐1374 & 13‐2321
Hector are entitled to resentencing in light of this Alleyne er‐
ror.
Finally, with respect to Sparkman, the mandatory mini‐
mum had an enormous effect on his sentence because he was
sentenced to the mandatory minimum. The district court ex‐
pressed distress at the length of the sentence, noting: “I think
the sentence provided by the mandatory minimums in this
case is … in my view it’s excessive.” (Sparkman Sent. Tr. 17.)
Therefore, we find that the Alleyne error was plain, affected
his substantial rights, and the failure to correct it could result
in a miscarriage of justice.
Accordingly, Defendants Hector, Jorge, and Sparkman are
entitled to resentencing with the mandatory minimum on
count 8 reduced to 5 years.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the convic‐
tions of all Defendants. We VACATE the sentences of Tony
Sparkman, Jorge Uriarte, and Hector Uriarte on count 8 and
REMAND for resentencing consistent with this opinion.
