In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 15‐2347

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JUAN BRISENO,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 11 CR 00077 — Philip P. Simon, Chief Judge.

____________________

ARGUED SEPTEMBER 9, 2016 — DECIDED DECEMBER 2, 2016

____________________

Before POSNER, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Juan Briseno was convicted of

multiple racketeering crimes relating to his participation in a

street gang. On appeal he seeks a new trial, arguing that dur‐

ing closing arguments, the government improperly refer‐

enced evidence pertaining to a prior acquittal, impermissibly

shifted the burden of proof to him, and vouched for gov‐

ernment witnesses in an inappropriate fashion.  
2 No. 15‐2347

But Briseno failed to object at trial to any of these state‐

ments, and none was so egregious that the trial judge should

have intervened. Although earlier in the trial the govern‐

ment highlighted evidence relating to an attempted murder

for which Briseno had been acquitted, that evidence was also

relevant to several other distinct charges that were submit‐

ted to the jury. And while the government did erroneously

shift the burden of proof by suggesting that Briseno could be

acquitted only if the jury concluded that the government’s

witnesses had testified falsely, that error was made harmless

by multiple curative instructions from the judge and by the

significant evidence weighing in the government’s favor. Fi‐

nally, the statements that Briseno argues constitute improper

vouching are better viewed as permissible appeals to the ju‐

rors’ common sense.

In addition, Briseno complains that the jury instruction

on the RICO conspiracy charge was internally inconsistent

and confusing, since it required the government to prove an

agreement as to the commission of “at least two acts of rack‐

eteering” but not “two or more specific acts.” We find no er‐

ror in this instruction, as it mirrors our pattern jury instruc‐

tion on the topic and comports with our case law. So we af‐

firm Briseno’s conviction.

I. BACKGROUND

Defendant Juan Briseno was indicted and tried for mur‐

der, attempted murder, and a number of other RICO‐related

crimes relating to his two‐year association with the East Chi‐

cago, Indiana Chapter of the Imperial Gangsters Street Gang

(IGs). At the end of the government’s case‐in‐chief, Briseno

moved for judgment of acquittal on all counts. The district

judge granted Briseno’s motion only as to the counts relating
No. 15‐2347 3

to the attempted murder of Andreas Arenivas, who appar‐

ently became a target of the IGs after testifying against one

of their members in an earlier criminal trial.  

The trial against Briseno continued, and during closing

arguments the government made a number of statements

that concern the heart of Briseno’s appeal. First, the govern‐

ment referenced various alleged facts connecting Briseno to

the attempted murder of Arenivas. Second, the government

contended that in order for Briseno to be not guilty, the gov‐

ernment’s witnesses must have conspired to frame him and

supply false testimony at trial. Third, the government em‐

phasized that eight of its witnesses deserved to be believed.  

After deliberating for two days, the jury convicted

Briseno on nine of the twelve remaining counts: conspiracy

to participate in racketeering, conspiracy to possess with in‐

tent to distribute at least five kilograms of cocaine and 100

kilograms of marijuana, five separate murders in aid of rack‐

eteering, attempted murder in aid of racketeering, and use of

a firearm during a crime of violence. 18 U.S.C. §§ 846, 924(c),

1959(a)(1) & (5), 1962(d). The district judge sentenced

Briseno to five consecutive terms of life imprisonment for

the murders, two consecutive life terms for the conspiracies,

a 120‐month concurrent sentence for the attempted murder,

and a 120‐month consecutive sentence for the firearm count.

This appeal followed.

II. ANALYSIS

Because Briseno failed to object to any of the govern‐

ment’s statements at trial that he challenges now, we review

the statements for plain error. United States v. Sandoval‐

Gomez, 295 F.3d 757, 762 (7th Cir. 2002). We begin by exam‐
4 No. 15‐2347

ining whether the statements were improper when viewed

in isolation; and if the answer is yes, we will review the

statements alongside the entire record and ask whether the

statements deprived Briseno of a fair trial. United States v.

Common, 818 F.3d 323, 331 (7th Cir. 2016). Briseno must also

show that the outcome of the proceedings would have been

different had the statements not been made. Sandoval‐Gomez,

295 F.3d at 762. A statement, while improper, can neverthe‐

less be harmless when considering:  

1) the nature and seriousness of the miscon‐

duct; 2) the extent to which the comments were

invited by the defense; 3) the extent to which

the prejudice was ameliorated by the court’s

instruction to the jury; 4) the defense’s oppor‐

tunity to counter any prejudice; and 5) the

weight of the evidence supporting the convic‐

tion.

Common, 818 F.3d at 333. In short, we will not grant Briseno

a new trial “unless there was an error so egregious that the

district judge should have stepped in even though no objec‐

tion was made.” United States v. Alexander, 741 F.3d 866, 870

(7th Cir. 2014). “Improper comments during closing argu‐

ments rarely rise to the level of reversible error.” Common,

818 F.3d at 331 (citation and internal quotation marks omit‐

ted).

A. Statements Relating to Acquitted Counts Not Erro‐

neous

Briseno claims that the government improperly argued

that he was guilty of attempting to murder Arenivas and of

using a firearm in that attempt, since the district judge had
No. 15‐2347 5

previously acquitted him on both counts. This presumes, of

course, that the evidence of Briseno’s alleged involvement

with Arenivas’s attempted murder had no bearing on the

counts that remained following the judgment of acquittal. Cf.

United States v. Bailin, 977 F.2d 270, 276 (7th Cir. 1992) (hold‐

ing that the government was barred from “relitigating issues

that were necessarily and finally decided in the defendant’s

favor by reason of the jury’s partial acquittal on other

counts” from a previous trial). But that is not the case here.  

Although not expressly articulated, we understand

Briseno to be invoking the law of the case doctrine, which

“posits that when a court decides upon a rule of law, that

decision should continue to govern the same issues in sub‐

sequent stages in the same case.” Christianson v. Colt Indus.

Operating Corp., 486 U.S. 800, 816 (1988) (citation and internal

quotation marks omitted). Although the law of the case doc‐

trine is distinct from issue preclusion, insofar as the latter

applies to rulings in different proceedings, and not simply dif‐

ferent stages within the same proceeding, see generally Lorea v.

United States, 714 F.3d 1025, 1028 (7th Cir. 2013), we view the

following issue‐preclusion considerations as instructive—

and have modified them to comport with the law of the case

doctrine:

(1) the court cannot engage in hyper‐

technicality, but rather must examine the

pleadings, evidence, charge, and other relevant

material to determine whether a rational jury

could have based its verdict on a different is‐

sue; (2) [the law of the case doctrine] only ap‐

plies when a relevant issue [from the court’s

earlier decision] is an “ultimate issue,” i.e., an
6 No. 15‐2347

issue that must be proven beyond a reasonable

doubt; [and] (3) the defendant bears the bur‐

den of proof in proving that the ultimate issue

was necessarily determined by [the court in its

earlier decision].

United States v. Evans, 486 F.3d 315, 322–23 (7th Cir. 2007)

(quoting United States v. Salerno, 108 F.3d 730, 741 (7th Cir.

1997)) (internal quotation marks omitted).

Briseno claims that the following five pieces of evidence

should not have been referenced during closing arguments:

(i) Briseno’s alleged statement of intent to kill Arenivas

should their paths cross; (ii) Briseno’s alleged displeasure

with a fellow IG for not pointing out Arenivas when they

were all present at a party together; (iii) Briseno’s alleged

presence at the scene of Arenivas’s shooting; (iv) Briseno’s

alleged remark that he caught Arenivas “slipping” and “lit

him up”; and (v) the use of the same gun in the murder of

Harris Brown (for which Briseno was charged). But Briseno

has not satisfied his burden of establishing that these facts

exclusively concern Arenivas’s attempted murder.  

As the government correctly notes, much of the evidence

relates to the IGs’ policy of attacking individuals who posed

a threat to the gang’s drug‐trafficking enterprise—including

individuals who supplied unfavorable information to inves‐

tigators and prosecutors—which in turn directly relates to

the RICO conspiracy charge. Moreover, the evidence con‐

cerning the gun was relevant to Brown’s murder, a charge

that was ultimately submitted to the jury. In short, the Are‐

nivas attempted‐murder charges were not re‐litigated in vio‐

lation of the law of the case doctrine. So the government did
No. 15‐2347 7

not act improperly by referencing the Arenivas‐related evi‐

dence in its closing statements.

Even if the government’s statements were somehow im‐

proper, any error was harmless. As Briseno concedes, during

closing arguments the defense informed the jury that it no

longer needed to consider the attempted murder of Are‐

nivas, and the verdict forms the jury was given did not in‐

clude the two counts for which Briseno had been acquitted.

In addition, the jury was specifically instructed to consider

each charge separately, and there was ample evidence in the

record connecting Briseno to the conspiracy and the murders

for which he was convicted—in particular, eyewitness testi‐

mony from multiple individuals (some of whom were not

IGs) and videotape from several of the crime scenes.

B. Harmless Error in Statements Involving Burden of

Proof

During its rebuttal portion of closing arguments, the

government stated:

So just to be clear, for defendant to be not

guilty of this one, what would have to happen?

What exactly—how would this play out so that

the defendant is not guilty, that this is just a big

conspiracy to frame him? Well, what it would

have to be, that Garza, Joseph Torres and An‐

dres Lara all conspired or framed the defend‐

ant. They all get their stories together to frame

the defendant. They then get Brandon Weaver,

who’s not an Imperial Gangster, in on their

conspiracy or Brandon Weaver just randomly

picks up the wrong guy and it’s just the de‐
8 No. 15‐2347

fendant’s bad luck and then somehow they get

the stranger Joseph Haryasz in on the conspir‐

acy to frame the defendant.... And then, just

out of bad luck, the defendant’s caught with a

30‐round magazine, and out of bad luck, Jacob

Davidovich happens to remember selling him

the exact same type of gun as is the murder

weapon. Ladies and gentlemen, that’s just too

much of a conspiracy, and that’s too much bad

luck for anyone to have.

According to Briseno, these statements improperly suggest‐

ed that the jury would need to choose between two “stark,

bright‐line and absolute alternatives that might serve to dis‐

tort the [government’s] burden of proof.” United States v.

Marshall, 75 F.3d 1097, 1108 (7th Cir. 1996).

We agree that under our case law the government

crossed the line by implying that the jury could not acquit

Briseno while at the same time accepting as truthful the tes‐

timony of the government’s witnesses. The government con‐

cedes that it “imperfectly expressed” a bright‐line argument,

but believes that the argument simply concerned “what it

would take to believe defense’s theory of the case.” A plain

reading of the government’s statement does not support that

interpretation.  

After posing the question “So just to be clear, for defend‐

ant to be not guilty of this one, what would have to hap‐

pen?,” the government did not present competing options

and highlight the one that best suited its case. See United

States v. Sandoval, 347 F.3d 627, 632 (7th Cir. 2003) (not im‐

proper to “suggest[] to the jury that it cannot believe the tes‐

timony of the officers and that of the defendant at the same
No. 15‐2347 9

time”). Nor did the government begin with the proposition

that its witnesses had lied and ask what the more appropri‐

ate verdict would be, which would not have “preclude[d]

the jury from acquitting [Briseno] for another reason, such as

the government not meeting its burden of proof.” United

States v. Common, 818 F.3d 323, 332 (7th Cir. 2016) (not im‐

proper to suggest that “[i]f the jury believed the officers were

lying and framed Common, then the jury should acquit”).  

Instead, the government began with the proposition that

Briseno was not guilty, and indicated that such a finding

could be reached only if the jury concluded that the govern‐

ment’s witnesses conspired to give false testimony. That was

improper. Compare United States v. Cornett, 232 F.3d 570, 574

(7th Cir. 2000) (statement that the jury would have to find

that the government’s witnesses lied in order to acquit mis‐

stated the burden of proof because the jury could have be‐

lieved the witnesses but still concluded that the government

failed to prove guilt beyond a reasonable doubt), and United

States v. Vargas, 583 F.2d 380, 386 (7th Cir. 1978) (improper to

state, “if you find the defendant not guilty, I want you to

write on there that all of those people lied”), with Marshall,

75 F.3d at 1107–08 (not improper to state that the jury should

acquit if it believed that the witness lied because the gov‐

ernment did not argue that disbelieving its witness was the

only way to acquit).

This error alone, however, is not fatal for the govern‐

ment, since Briseno must also show that these statements

deprived him of a fair trial in order to prevail. As the gov‐

ernment notes, the jury was repeatedly instructed before and

after the presentation of evidence that the government bore

the burden of proving Briseno’s guilt. And there was more
10 No. 15‐2347

than sufficient evidence of Briseno’s guilt, much of which

involved credibility determinations as to the government’s

witnesses. So the government’s improper statement was

harmless error. See, e.g., Common, 818 F.3d at 333 (When “as‐

sessing the prejudicial effect of a prosecutor’s misstatement,

we place considerable emphasis on the curative effect of jury

instructions and the weight of the evidence.”).

C. Statements Involving Witness Credibility Not Erro‐

neous

Briseno also assails the government for improperly

vouching for several government witnesses during closing

arguments. A prosecutor may not vouch for a witness by

personally endorsing that witness’s truthfulness, or by im‐

plying that facts not in evidence support the witness’s credi‐

bility. United States v. Wolfe, 701 F.3d 1206, 1212 (7th Cir.

2012). Such vouching does not, however, include “a prosecu‐

tor’s reminder to the jury of evidence presented at the trial

that tends to show that a witness was telling the truth.”

United States v. Alexander, 741 F.3d 866, 869–70 (7th Cir. 2014)

(citation and internal quotation marks omitted).  

Briseno contends that several separate groups of state‐

ments constitute impermissible vouching. First, he points to

statements concerning four witnesses (David Almarez, An‐

dres Lara, Anthony Baldazo, and Galo Feliciano) in which

the government asserted that, had the witnesses intended to

lie, they would have made themselves more valuable by

claiming to have witnessed first‐hand certain of Briseno’s

crimes. These statements simply appeal to the jurors’ com‐

mon sense and are not problematic. See Alexander, 741 F.3d at

871 (finding no issue with the statement that “if [the witness]

were going to lie, he would have done so on a larger, more
No. 15‐2347 11

persuasive scale”). So, too, with regard to the government’s

assertion that if Vincent Garza had planned to lie about two

murders and one attempted murder that occurred in rapid

succession, he would have minimized his involvement or

even pinned the murders entirely on Briseno.

Second, Briseno criticizes the following statement regard‐

ing Feliciano’s plea agreement:

Feliciano pled guilty to murder for being the

driver. His plea deal is out the window if he

lies. And if the judge catches him in a lie, he’s

done and he’s doing life. Why would he pro‐

tect those guys? Those guys weren’t in the car.

Those guys had nothing to do with it.

It is well established that the government can “point out that

its witnesses, under their plea agreements, are required to

testify truthfully.” United States v. Clarke, 227 F.3d 874, 885

(7th Cir. 2000); see also, e.g., United States v. Spivey, 859 F.2d

461, 466 (7th Cir. 1988) (permissible for government to state

that cooperation clauses in witnesses’ plea agreements “pro‐

vided them with a motive to tell the truth”). Briseno con‐

tends in conclusory fashion that the government’s statement

somehow implied that facts not before the jury lent credibil‐

ity to Feliciano. Perhaps he is suggesting that Feliciano had

an incentive for testifying truthfully that was not disclosed

to the jury. In United States v. Edwards, for example, we

found that the government had improperly vouched for a

police officer by asking why the officer would risk his career

by lying about seeing the defendant with drugs. We found

that this rhetorical question invited the jury to speculate that

“the government fires officers who lie under oath ... or pros‐

ecutes them ... and no evidence to that effect was present‐
12 No. 15‐2347

ed.” 581 F.3d 604, 610–11 (7th Cir. 2009). But the discussion

of the plea agreement plainly demonstrates that there was

no comparable failure to disclose here.

Third, Briseno contends that the government erred in

stating that Brandon Weaver “was not charged with any‐

thing. He’s not an Imperial Gangster. He has no problem

with the defendant. He has no motive. He has no bias.” We

see no problem with this statement, as it cites evidence—the

absence of charges or IG affiliation and Weaver’s relation‐

ship with Briseno—from which truthfulness can be inferred.

See Alexander, 741 F.3d at 870 (“[T]he prosecutor may point

out the absence of specific evidence of a motive for the [wit‐

ness] to lie ....”).

Fourth, Briseno faults the government for stating that Jo‐

seph Haryasz acted like “a real good, honest citizen” when

he called 911 after hearing gunshots, and that Haryasz was

“just John Q. Citizen. I don’t know how old he was, 50s. Has

a legitimate job at the Times. I doubt he even knows any

gangbangers.” The government’s commentary on Haryasz’s

purported civic virtues, when read in context, are not action‐

able, as they simply highlight the facts concerning Haryasz

that the government believes exemplify his trustworthiness.  

More concerning, however, is the government’s use of

the first‐person “I” in speculating about Haryasz’s associa‐

tion with “gangbangers.” The government made a similar

statement regarding Marissa Harper’s testimony about being

shot:

Do you think [Harper] was lying about the bul‐

let through the car seat? I don’t know, you saw

her arm with the through and through wound
No. 15‐2347 13

where she’s hit on one side and it comes out

the other side of her arm. Obviously she wasn’t

lying about that. I don’t know why she would lie

about the car seat.

(emphasis added). In general, an attorney’s use of the first‐

person “I” is improper when paired with personal com‐

ments or an implication that the attorney possesses

knowledge foreign to the jury, but is tolerable when paired

with comments on reasonable inferences drawn from evi‐

dence. See United States v. Anderson, 303 F.3d 847, 856 (7th

Cir. 2002).  

Here, the government’s use of “I” regarding Harper and

the car seat could be viewed as proper, to the extent the gov‐

ernment was asking the jury to apply common sense to a

theory (Harper having lied) that the evidence did not sup‐

port. See id. (concluding that the statement “Well, maybe it

doesn’t make sense to many people, but I am here to tell you

it happens” is a “generic statement which would be under‐

stood as asking the jury to apply common sense and to con‐

sider a competing inference, both of which are proper argu‐

ment”). However, we struggle to find a permissible interpre‐

tation of the statement, “I doubt he even knows any gang‐

bangers,” which smacks of personal commentary, if not out‐

right endorsement.  

But we need not resolve this issue; even if one or both of

the statements were improper, they did not deny Briseno a

fair trial. The statements were solitary and brief in nature,

the district judge instructed the jurors both before and after

closing arguments that attorney statements were not evi‐

dence, and as noted above the vast weight of the evidence

was against Briseno. So Briseno is not entitled to a new trial
14 No. 15‐2347

based on the government’s statements during closing argu‐

ments.

Before turning to Briseno’s complaint about jury instruc‐

tions, we pause to commend the U.S. Attorney’s Office in the

Northern District of Indiana for reviewing this case closely

and for unilaterally committing to undertake additional clos‐

ing‐arguments training for its attorneys.

D. RICO Conspiracy Jury Instruction Not Erroneous

During the trial, the jury received the following instruc‐

tion as to the RICO conspiracy count:

In order to find a “pattern of racketeering ac‐

tivity” for purposes of Count One, you must

find beyond a reasonable doubt that the de‐

fendant agreed that some member or members

of the conspiracy would commit at least two acts

of racketeering ....

[T]he government does not have to prove that any

racketeering acts were actually committed at

all, or that the defendant agreed to personally

commit any such acts, or that the defendant

agreed that two or more specific acts would be

committed.

(emphasis added). Briseno views the instruction as internally

inconsistent, insofar as it states that the government must

prove an agreement as to the commission of “at least two

acts of racketeering,” but not “two or more specific acts.” Ac‐

cording to Briseno, this purported inconsistency misled the

jury.  
No. 15‐2347 15

Before we reach the merits of Briseno’s argument, we

must determine the standard of review. Briseno concedes

that he failed to object at trial, but claims this amounted to

forfeiture, which we review for plain error. United States v.

Seals, 813 F.3d 1038, 1045 (7th Cir. 2016). The government, in

contrast, argues that Briseno’s failure to object constitutes

waiver, which precludes review except in very limited cir‐

cumstances that have not arisen here. See United States v. Na‐

tale, 719 F.3d 719, 731 (7th Cir. 2013); United States v. Bownes,

405 F.3d 634, 637 (7th Cir. 2005). Although we have not al‐

ways used the terms waiver and forfeiture consistently, we

have generally found forfeiture when a party negligently or

accidentally fails to raise an argument, whereas waiver oc‐

curs when a party “intentionally relinquishes or abandons a

known right.” Seals, 813 F.3d at 1045.

When jury instructions are involved, we have typically

viewed an affirmative acceptance as a waiver. See, e.g., Unit‐

ed States v. Smith, 818 F.3d 299, 302 (7th Cir. 2016); United

States v. Ajayi, 808 F.3d 1113, 1121 (7th Cir. 2015). But we

have also recognized that treating an acceptance of jury in‐

structions as waiver can produce harsh results in cases

where the defendant may have negligently failed to object.

Ajayi, 808 F.3d at 1121 (discussing Natale, 808 F.3d at 729–30).

So when defense counsel utters “nothing more than a simple

‘no objection’ during a rote call‐and‐response colloquy with

the district judge,” forfeiture may be the more appropriate

classification. Natale, 719 F.3d at 730–31.  

Here, when asked if he had any objections to any of the

jury instructions, defense counsel replied, “None at all, Your

Honor.” And when asked if he was “in agreement with in‐

structions 1 through 62,” counsel responded, “Yes, your
16 No. 15‐2347

Honor.” These answers do not strike us as “a calculated

choice to stay silent,” United States v. Anderson, 604 F.3d 887,

1001 (7th Cir. 2010), and we see nothing in the record that

hints at a motivation for forgoing the opportunity to object.

But we need not decide the issue; even if forfeiture occurred,

the RICO conspiracy instruction was not plainly erroneous.

For one, there was no “clear or obvious” error. The in‐

struction mirrors our own pattern criminal jury instruction

for racketeering conspiracy and is consistent with our case

law on the subject. See United States v. Tello, 687 F.3d 785,

792–93 (7th Cir. 2012) (rejecting the premise that specific

predicate acts of racketeering are required for a racketeering

conspiracy conviction); accord United States v. Benabe, 654

F.3d 753, 777 (7th Cir. 2011); United States v. Glecier, 923 F.2d

496, 500 (7th Cir. 1991). Although the difference between “at

least two acts” and “two or more specific acts” may be a fine

one, it does exist. For example, agreeing that members of a

gang will engage in extortion in a certain general area, dur‐

ing a certain time frame, and of a certain scope constitutes a

general agreement to act, despite a lack of knowledge or

agreement as to the precise dates, locations, and individuals

that the extortion will involve. See Tello, 687 F.3d at 796.

E. No Cumulative Error

In addition, Briseno has failed to demonstrate cumulative

error, since he has failed to identify any error that individu‐

ally or in combination with others deprived him of a fair tri‐

al. See United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011)

(Cumulative error requires proof “(1) that multiple errors

occurred at trial; and (2) those errors, in the context of the

entire trial, were so severe as to have rendered his trial fun‐

damentally unfair.”); Alvarez v. Boyd, 225 F.3d 820, 825 (7th
No. 15‐2347 17

Cir. 2000) (“[C]ourts must be careful not to magnify the sig‐

nificance of errors which had little importance in the trial

setting.”). So Briseno has failed to show that he is entitled to

a new trial.

III. CONCLUSION

We AFFIRM the district court’s judgment.