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 notrequire 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 characterthat 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 offerto 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 Hectortold 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. Hectorreads 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) (“Acommon 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 Jolietrob‐

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 errorin 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 forthe errorthe 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 substantialrights. 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.