### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 2617

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee,

v.

J UAN A MAYA

, Defendant

‐ Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12

‐ cr

‐ 710

— Rebecca R. Pallmeyer

, Judge

.

____________________

A RGUED S EPTEMBER 9, 2015

— D ECIDED J UNE 3, 2016

____________________

Before E ASTERBROOK

, K ANNE

, and W ILLIAMS

, Circuit

Judges

.

W ILLIAMS

, Circuit Judge

. For a time, Juan Amaya was a

ranking officer in the Latin Kings, a vicious and well

‐ orga

‐

nized street gang whose structure and operations we have

previously described in detail. See generally United States v.

Garcia

, 754 F.3d 460, 465–68 (7th Cir. 2014). A jury convicted2 No. 14

‐ 2617

him of drug

‐ related crimes (distributing cocaine, possessing

cocaine with the intent to distribute it, and carrying a gun in

furtherance of his cocaine distribution) and organized

‐ gang

‐

related crimes (conspiring to conduct racketeering activity

and aiding and abetting a violent crime in aid of racketeering).

On the gun count and the two racketeering counts, Amaya

challenges the sufficiency of the government’s evidence, but

we find that the evidence sufficiently supported the jury’s ver

‐

dict.

Amaya also challenges the admission of an out

‐ of

‐ court

statement made by an undercover law

‐ enforcement agent,

but the statement was not hearsay because it was not offered

for its truth, and its admission was not unduly prejudicial. Fi

‐ nally, Amaya argues that the admission of an out

‐ of

‐ court

statement made by a confidential informant violated Amaya’s

constitutional right to confront the witnesses against him. But

the statement was not the type of “testimonial” statement cov

‐

ered by the Sixth Amendment’s Confrontation Clause. For

these reasons, we affirm Amaya’s convictions.

I. BACKGROUND

This case arose out of an investigation into the Latin Kings

street gang, an organization whose activities involve murder,

assault, extortion, and drug dealing. 1 The government con

‐

tended that Amaya was a long

‐ time member of the gang who

rose through the ranks to become a regional leader. There was

1 Given the procedural posture, we view the evidence in the light most

favorable to the government. Musacchio v. United States

, 136 S. Ct. 709, 711–

12 (2016). So we describe the facts assuming the jury believed the govern

‐

ment’s evidence. That said, Amaya admits he was a Latin King and has

not disputed significant details about the gang’s structure or operation.No. 14

‐ 2617 3

evidence concerning the gang in general (and specifically as

it operated in Amaya’s territory), and evidence concerning

Amaya’s individual conduct.

A. Gang Structure

The Latin Kings operated in various parts of Illinois, in

‐ cluding Chicago. The gang was highly organized and hierar

‐

chical, with its own constitution, manifesto, and code of con

‐

duct, as well as its own colors, handshake, salute, emblems,

signs, flag, and territories. Territories were divided into “re

‐ gions,” which were further divided into “sections” (some

‐

times called “chapters”). The highest

‐ ranking member of a

section is the “Inca,” and the highest

‐ ranking member of a re

‐ gion is the “Regional Inca.”

The “26th Street Region” operated in the southwest Chi

‐

cago neighborhood known as Little Village. The region had

twenty

‐ four sections, including the “Sawyer and 22nd Sec

‐

tion,” which Amaya had joined by sometime in 2005. He rose

to Regional Inca by early February 2008, and kept that posi

‐

tion until May or June 2008. In that position, Amaya was in

charge of about one thousand gang members. As Regional

Inca, Amaya was outranked by only the “Supreme Regional

Inca” (who oversaw multiple regions) and the head of the en

‐

tire organization, the “Corona.”

Members were required to pay “dues,” which allowed the

gang to buy guns, ammunition, cell phones, and police scan

‐

ners, among other things. As Regional Inca, Amaya ensured

that dues were paid. Dues were collected at the chapter level

and some of the money was passed up to Amaya at the re

‐ gional level. As Regional Inca, Amaya announced a plan to4 No. 14

‐ 2617

redistribute dues money so that each chapter had adequate

resources, even those with small memberships.

B. Gang Rules and Practices

As Regional Inca, Amaya was responsible for enforcing

applicable rules, which came from the gang’s manifesto, its

constitution, and the 26th Street Region’s local rules. A pri

‐

mary rule was that members were required to protect the

gang’s territory from its rivals, often through violence. For ex

‐ ample, from Thursday night through Sunday morning, the

26th Street Region was on “mandatory bust out.” That meant

that members patrolled their territory, armed with guns, and

were required to shoot to kill any trespassing member of a ri

‐

val gang. Members were required to carry guns when they

loitered in their own territory and also when they traveled to

rival territory. While Amaya was Regional Inca, gang policy

dictated that if a Latin King was shot, the gang was required

to conduct multiple retaliatory drive

‐ by shootings. Around

April 2008, while Amaya was Regional Inca, he bragged that

26 rival gang members had been shot during his tenure.

The rules also required violence against fellow Latin

Kings. New recruits were initiated into membership through

beatings. The rules provided for mandatory beatings for any

member who broke the rules (these beatings were called “vi

‐ olations”). Although unwritten, there was a rule requiring

that present or former gang members be killed on sight if they

were known to have cooperated with law enforcement.

Given the mandatory shooting requirements, discussed

above, it is not surprising that there were also rules governing

what to do with guns that had been used in shootings. In theNo. 14

‐ 2617 5

26th Street Region, if a gun was used in a shooting that re

‐

sulted in a death, the rules required the gun be disposed of.

The local chapter would try to sell the gun to a suburban chap

‐

ter, would throw it in the river, or would “chop it up” (physi

‐ cally destroy it piece by piece).

C. Amaya’s Individual Conduct

1. Punishment of Fellow Latin Kings

The rules prohibited stealing within gang territory. But

around April 2008, two members stole from a home in the

26th Street Region. (To make matters worse, it was the home

of the Corona’s girlfriend.) Because the home was within

Amaya’s region, he was charged with enforcing the punish

‐

ment. The Corona initially ordered severe beatings in which

any weapon could be used over an unlimited period of time,

but Amaya believed that was too harsh, so he recommended

that the thieves’ hands be smashed instead—a recommenda

‐

tion the Corona accepted.

In a meeting that was secretly audio and video recorded,

Amaya instructed that the thieves’ hands be smashed with a

hammer or a brick, rather than the baseball bat that another

member had initially selected. The first thief submitted to the

vicious beating without resistance. Amaya picked the specific

gang member to carry out the attack and waited outside the

room as it happened; he received a report when it was com

‐ pleted. Later that same day, the second thief was beaten, again

at Amaya’s direction, and again with Amaya receiving a re

‐

port upon completion.6 No. 14

‐ 2617

2. Extortion of Other Criminals

While Amaya was a Latin King, including while he was a

Regional Inca, the gang extorted “miqueros”—people ille

‐ gally selling fake identification cards. The miqueros paid the

gang a monthly fee, which bought them protection and the

privilege of operating a monopoly within gang territory. Re

‐

fusal to pay the fee led to beatings.

3. Drug Trafficking

The Latin Kings’ constitution expressly forbade selling

certain drugs, including heroin, LSD, and crack cocaine. Ap

‐ plying (perhaps unknowingly) the canon expressio unius est ex

‐

clusio alterius

, the gang interprets the constitution to permit

selling powder cocaine, so members did so (regulated by the

gang). Gang members who could not repay their debts were

prohibited from accepting drugs from other members on

credit. Disputes among members arising out of drug sales

were resolved by gang leadership. The leadership of the 26th

Street Region allowed members who were actively involved

in drug dealing to be excused from the “mandatory bust outs”

as long as they paid extra dues by sharing some of their drug

profits.

Amaya was removed as Regional Inca in May or June of

2008. (He was suspected of conspiring to kill the Corona, but

those suspicions were eventually ruled unfounded.) But he

remained a gang member in good standing and on September

28 and November 3, 2010, he sold cocaine to Sergeant Sean

Koren, an undercover law

‐ enforcement agent posing as a

Latin King from out of town. The agent was accompanied by

two confidential informants who were Latin Kings.No. 14

‐ 2617 7

For both deals, Amaya arranged to meet at an alley in rival

gang territory. The deals took place in Sergeant Koren’s car

and were audio and video recorded (though the September

video is too dark to be useful). Both deals began with a hand

‐

shake and greeting (“King Love”) that identified the parties

as Latin Kings. During the September deal, Amaya said, “they

all right here” and “I be waiting for their asses,” which the

government contended referred to rival gang members in the

vicinity. Sergeant Koren testified that as Amaya made these

statements, he brandished a gun and pointed it down the al

‐ ley. Amaya then sold Koren about half an ounce of cocaine

and got out of the car.

At the November meeting, Amaya sold Koren about an

ounce of cocaine. One of the informants commented that there

were members of a rival gang in the alley, to which Amaya

responded, “They live right here, dog. Remember? I pulled

out that other pistol. That was you guys, right?” Amaya said

that the rival gang members “use this gang

‐ way a lot.” Ser

‐

geant Koren asked Amaya if he had more guns, to which

Amaya responded that he had gotten rid of the one he had

displayed back in September. Amaya said that some gang

members had used the gun, so he “told them dump it. Chop

it up.” Amaya then asked Koren and the informants if they

knew anyone that could get him handguns.

D. Amaya’s Prosecution

Under a superseding indictment, Amaya was prosecuted

for drug crimes (distributing cocaine and possessing cocaine

with the intent to distribute it), a gun crime (possessing a gun

in furtherance of cocaine distribution), and racketeering

crimes (conspiring to participate in racketeering and aiding8 No. 14

‐ 2617

and abetting a violent assault to maintain his position in a

racketeering enterprise).

Amaya pleaded not guilty to all charges. At trial, the gov

‐

ernment introduced audio and video recordings as well as

testimony from Sergeant Koren, another law

‐ enforcement

agent who witnessed the drug deals, a special investigator,

and two cooperating Latin Kings. The jury found Amaya

guilty on all counts and the court sentenced him to 420

months in prison.

II. ANALYSIS

Amaya challenges the sufficiency of the evidence as to the

gun

‐ possession conviction and the two racketeering

‐ related

convictions. To resolve those challenges, we view the evi

‐

dence “in the light most favorable to the government” and we

will “overturn the verdict only when the record contains no

evidence, regardless of how it is weighed, from which the jury

could find guilt beyond a reasonable doubt.” United States v.

Morales

, 655 F.3d 608, 634 (7th Cir. 2011) (citation and quota

‐

tion marks omitted).

As to the gun charge, Amaya also raises two evidentiary

issues. First, he argues that admission of certain hearsay evi

‐

dence was unduly prejudicial—an issue we review for an

abuse of discretion. United States v. Villegas

, 655 F.3d 662, 672

(7th Cir. 2011); United States v. Bonner

, 302 F.3d 776, 780 (7th

Cir. 2002). Second, he argues that the admission of a confiden

‐

tial informant’s out

‐ of

‐ court statement violated the Confron

‐

tation Clause of the Sixth Amendment—an issue we review

de novo. United States v. Adams

, 628 F.3d 407, 416 (7th Cir.

2010). We will not overturn a conviction due to a hearsay orNo. 14

‐ 2617 9

Confrontation Clause error if the error was harmless. United

States v. Nicksion

, 628 F.3d 368, 375 (7th Cir. 2010).

A. Gun Possession

Amaya argues that the evidence was insufficient to show:

(1) he possessed a gun; or (2) if he possessed a gun, he did so

“in furtherance of” a drug crime. He also argues that his con

‐

viction was based on hearsay statements, admitting those

statements was prejudicial, and admitting one of those state

‐

ments violated his constitutional right to confront the wit

‐

nesses against him.

1. Sufficient Evidence of Amaya’s Gun Posses

‐

sion

Sergeant Koren testified that Amaya carried a gun to the

September drug deal. As Amaya concedes, the jury was enti

‐

tled to believe this testimony. But Amaya says that no reason

‐

able jury could have concluded beyond a reasonable doubt

that the gun was real

, and Amaya can’t be convicted for carry

‐ ing a fake gun. Amaya is right that 18 U.S.C. § 924(c) requires

a real gun. 18 U.S.C. § 921(a)(3) (“firearm” in § 924(c) means a

weapon “which will or is designed to or may readily be con

‐

verted to expel a projectile by the action of an explosive”);

United States v. Westerdahl

, 945 F.2d 1083, 1088 (9th Cir. 1991)

(“Possession of a toy or replica gun cannot sustain a convic

‐

tion under § 924(c).”); cf. United States v. Jones

, 222 F.3d 349,

351–52 (7th Cir. 2000) (analyzing whether evidence was suffi

‐

cient to show the defendant’s gun was not a “BB” gun). So the

question is whether the government presented sufficient evi

‐

dence from which the jury could have concluded beyond a

reasonable doubt that Amaya’s gun was real. We conclude the

answer is yes.10 No. 14

‐ 2617

First, there is the obvious fact that Amaya was an admitted

member of a violent street gang. Consistent with the gang

rules, former members Milton Shanna and Ruben Caquias

testified that Latin Kings carried real guns, not fake ones, and

were required to do so when in the territory of a rival gang (as

Amaya was for the September meeting). It would not have

been unreasonable for the jury to think it unlikely that a Latin

King carried a fake gun to a drug deal in rival territory be

‐

cause doing so seems pointless, if not reckless.

Further, Sergeant Koren—who testified that Amaya’s gun

“had a slide and a magazine that went in the bottom,” and

“looked to have the weight and feel of a handgun”—was not

a lay witness. He was a veteran law

‐ enforcement officer with

experience investigating drugs, gangs, and guns. He testified

that the gun was displayed less than one foot from his face

and that he was positive it was a real gun. Koren also testified

that Amaya pointed the gun toward the alley, referenced rival

gang members in the area, and said “they all right here,” and

“I be waiting for their asses,” suggesting the gun would be

used if necessary.

Then, during the November deal, Amaya was recorded

talking about the gun he had displayed to Sergeant Koren

during the September deal. 2 He said that he had gotten rid of

it because some “boys in the hood” had “used it.” Amaya ar

‐

gues that “used” does not necessarily mean fired

, which

would prove the gun was real; “used” could mean “simply

2 Amaya argues that the November statements do not specifically re

‐

fer to a gun displayed on September 28, 2010

, so they only support a finding

that Amaya had a pistol “at some time in the past.” But as Amaya’s coun

‐

sel admitted at oral argument, there was no other prior encounter between

Amaya and Sergeant Koren.No. 14

‐ 2617 11

holding a gun for amusement, or brandishing it for protec

‐

tion, or pulling the trigger.” But that ignores the evidence—

testimony from Sergeant Koren, Milton Shanna, and Ruben

Caquias—that Latin Kings specifically got rid of guns that

had been used in shootings

, so that no gang member in the re

‐ gion would be caught with such a gun. Finally, after having

mentioned that he had gotten rid of the gun, Amaya asked

Koren and the two informants if they knew anyone that could

get him handguns—he didn’t ask for replacement fake guns.

Cumulatively, and viewed in the light most favorable to

the government, this evidence supports the jury’s conclusion

that Amaya had a real gun. Cf

. United States v. Lawson

, 810 F.3d

1032, 1040 (7th Cir. 2016) (lay witness testimony about gun’s

appearance, along with testimony that possessor said “I have

a gun,” sufficient to support jury conclusion that gun was

real); United States v. Moore

, 25 F.3d 563, 568 (7th Cir. 1994) (lay

witness testimony about guns’ appearances and about the de

‐

fendants’ actions in emptying and cleaning the guns, along

with video depicting the guns, sufficient to support jury con

‐

clusion that guns were real).

2. Sufficient Evidence of Possession “In Further

‐

ance of” Drug Crime

Amaya’s conviction under § 924(c) also requires some con

‐

nection between his gun and his drug crime. 18 U.S.C. § 924(c)

(criminalizing possessing guns “in furtherance of” drug

crimes); United States v. Eller

, 670 F.3d 762, 765 (7th Cir. 2012)

(“The ‘in furtherance of’ element of § 924(c) requires that the

weapon further, advance, move forward, promote or facilitate

the drug

‐ trafficking crime, and that the possessed gun further

a drug

‐ trafficking offense by providing the dealer, his stash,

or his territory with protection.”); United States v. Castillo

, 40612 No. 14

‐ 2617

F.3d 806, 824 (7th Cir. 2005) (“924(c)(1)(A) was intended to

reach weapons that actually facilitate crimes and not those in

‐ nocently possessed in the vicinity”).

Amaya argues that the evidence was insufficient to con

‐

nect his gun to drug trafficking. When analyzing such a chal

‐ lenge, our role “is limited to ensuring that a valid legal theory

supports the conviction and that there is some evidence from

which a rational jury could find in favor of that legal theory.”

United States v. Duran

, 407 F.3d 828, 842 (7th Cir. 2005). One

such “theory” is that gun possession furthers drug trafficking

when a drug dealer possesses the gun to protect himself, his

drugs, or his drug proceeds during and after a sale. See Eller

,

670 F.3d at 765; United States v. Huddleston

, 593 F.3d 596, 602

(7th Cir. 2010); Duran

, 407 F.3d at 840; United States v. Lomax

,

293 F.3d 701, 705 (7th Cir. 2002). To determine whether this

theory is supported by evidence, it can be useful to consider

certain factors, including: “the type of drug activity that is be

‐ ing conducted, accessibility of the firearm, the type of the

weapon, whether the weapon is stolen, the status of the pos

‐

session (legitimate or illegal), whether the gun is loaded,

proximity to drugs or drug profits, and the time and circum

‐

stances under which the gun is found.” Huddleston

, 593 F.3d

at 602. While these factors may be useful, they are not dispos

‐

itive and are not to be applied rigidly; instead, “we are guided

primarily by common sense.” Id .; see also Castillo

, 406 F.3d at

815; Duran

, 407 F.3d at 840.

Amaya notes that there was no evidence that the gun was

loaded. He also argues that the gun could not have furthered

the September drug deal because that deal was among

friendly fellow gang members and outside of public view, so

no participant would have felt endangered. Amaya admitsNo. 14

‐ 2617 13

that he carried the gun for protection against an attack from

rival gang members, but argues that any such attack would

have been prompted only by his membership in the Latin

Kings, not by his drug sales in rival territory. Such needle

‐ threading is misplaced at this stage of the case. We view the

evidence in the government’s favor and we “will overturn the

verdict only when the record contains no evidence, regardless

of how it is weighed, from which the jury could find guilt be

‐ yond a reasonable doubt.” Morales

, 655 F.3d at 634. And the

record contains plenty of evidence from which a jury could

have found Amaya guilty.

First, Amaya’s gun was a handgun, which “easily could be

concealed and carried to drug transactions.” Huddleston

, 593

F.3d at 602. Moreover, Amaya actually did carry it with him to

a drug transaction, and we have held that “a fact finder is cer

‐ tainly entitled to come to the common

‐ sense conclusion that

when someone has both drugs and a firearm on their person,

the gun is present to further drug trafficking.” Lomax

, 293 F.3d

at 706; Duran

, 407 F.3d at 841 (“[J]urors are entitled to consider

that drug dealers possess guns for protection to further drug

‐ trafficking offenses.”). See also Huddleston

, 593 F.3d at 602

(“[T]he drug activity at issue—distribution—might reasona

‐ bly call for the use of a weapon for protection, both during the

drug deals and afterward to protect the remaining stash and

profits.”). Finally, while conducting his drug sale, Amaya

pointed the gun toward the alley, referenced rival gang mem

‐

bers in the area, and said “they all right here,” and “I be wait

‐ ing for their asses,” which a jury could have concluded indi

‐

cated Amaya’s willingness to use the gun to protect his drugs

or money. This evidence, viewed in the government’s favor,

adequately supports the jury’s verdict.14 No. 14

‐ 2617

3. Not Abuse of Discretion to Admit Statements

Made After Amaya Exited Car

i. Relevant Facts

The September drug deal was audio recorded. (There is

video too but the equipment wasn’t suitable for nighttime re

‐ cording, so nothing can be seen.) While Amaya was in the car,

Sergeant Koren did not say anything about Amaya having a

gun. But as soon as Amaya left, Koren said, “Yea. Mother

f***er had a pistol,” to which an informant responded, “That

was a big ass pistol,” prompting Koren to respond, “Hell

yea.” Before trial, Amaya moved to exclude these statements

and the government agreed not to introduce them.

At trial, Sergeant Koren testified that Amaya brandished

his gun less than a foot from Koren’s face. Amaya’s lawyer

thought the jurors might not believe Koren if they knew that

he didn’t say anything about a gun while Amaya was in the

car. (Counsel’s theory was that if Amaya really displayed a

gun, Koren would have said something immediately, because

he would have been fearful and because he would want to

prompt Amaya to say something incriminating while he was

being recorded.) So on cross

‐ examination, the following testi

‐

mony was elicited:

Q: And yet, despite the fact that you are

aware that your vehicle is equipped with

recording equipment, you don’t say any

‐ thing about the gun; is that right?

A: Not at that instant, no.

Q: At that instant, when there is a firearm

brandished a foot from your head, you

don’t say, “Hey, that’s a big gun,” do you?No. 14

‐ 2617 15

A: Not at that instant, no.

At a sidebar, the government contended and the judge

concluded that Amaya’s lawyer had “opened the door” to

what was said as soon as Amaya left the car. So the following

exchange occurred on redirect:

Q: What is the first thing you said when the

defendant stepped out of that car?

A: I said, “Yeah. Motherf***er had a pistol.”

Q: What did the [informant] say in re

‐ sponse?

A: He said, “That was a big

‐ ass pistol.”

...

Q: Why did you say that?

A: It was a significant event. It’s just—you

know, after he got out of the car, it was

like, take a deep breath, and that’s what

came out of my mouth.

The moments leading up to the exchange

of $380 for a half

‐ ounce of cocaine, he

pulls out a gun. For a split second I

wasn’t sure if I was being robbed or what

was going on. So that’s the first thing that

blurted out of my mouth when he got out

of the car.

Q: You said, “take a deep breath.” What

were you feeling at that point?16 No. 14

‐ 2617

A: I was scared. I mean, there was a gun

from a gang member within inches of my

face.

Notably, Sergeant Koren was not asked on redirect about

his response (“Hell Yea.”) to the informant’s statement, but

that response came in when the government played the audio

tape shortly after Koren’s testimony.

ii. Analysis

The district court concluded that the post

‐ exit statements

were admissible because Amaya had “opened the door.” As

we explained in Villegas :

When a party opens the door to evidence that

would be otherwise inadmissible, that party

cannot complain on appeal about the admission

of that evidence

... . However, where the rebut

‐

tal evidence does not directly contradict the ev

‐

idence previously received, or goes beyond the

necessity of removing prejudice in the interest

of fairness, it is within the district court’s discre

‐

tion to deny its admittance. Indeed, the open

door doctrine’s soundness depends on the spe

‐

cific situation in which it is used and thus calls

for an exercise of judicial discretion.

655 F.3d at 672 (citations and quotation marks omitted).

Amaya’s lawyer attacked the credibility of Sergeant

Koren’s testimony that Amaya displayed a gun, making

Koren fearful. Counsel painted that story as implausible,

given that Koren did not say anything about a gun at the in

‐

stant it was allegedly displayed. It was not an abuse of discre

‐No. 14

‐ 2617 17

tion for the district court to conclude that this line of question

‐ ing opened the door to evidence that both Koren and the in

‐

formant did say something, shortly after the gun was displayed

and Amaya exited the car. 3

Next, concerning the informant’s statement (but not

Koren’s), Amaya argues that admitting the statement violated

the Confrontation Clause of the Sixth Amendment because

the informant did not testify at trial. The Confrontation

Clause provides that “[i]n all criminal prosecutions, the ac

‐

cused shall enjoy the right

... to be confronted with the wit

‐

nesses against him.” U.S. Const. amend. VI. “Witnesses” are

those who “bear testimony,” Crawford v. Washington

, 541 U.S.

36, 51 (2004), so that “[a]dmitting a witness’s out

‐ of

‐ court tes

‐

timonial statements when that witness is available to testify

violates the accused’s Sixth Amendment right of confronta

‐

tion, but not when those statements are offered for a purpose

other than establishing the truth of the matter asserted.”

United States v. Gaytan

, 649 F.3d 573, 580 (7th Cir. 2011) (quo

‐

tation marks omitted). So we must ask whether the inform

‐

ant’s statement was offered for its truth; if so, we must also

ask whether it was “testimonial.”

The government argues that the informant’s statement—

”That was a big

‐ ass pistol”—wasn’t offered for its truth, it was

offered merely to put Sergeant Koren’s response—”Hell

yea”—in context. But as we explained in United States v. Smith

,

3 Amaya’s appellate counsel, who was also his trial counsel, informed

us at oral argument that she knew she was “very close to the line,” and

that she made a strategic decision to proceed, without asking for a sidebar,

despite the known risk of opening the door.18 No. 14

‐ 2617

816 F.3d 479, 481–82 (7th Cir. 2016), whether a statement is of

‐

fered for “context” is beside the point—the relevant question

is whether the statement is offered for its truth (and the an

‐

swer to that question can be yes, even if the statement pro

‐

vides context for some other, admissible statement). An exam

‐ ple from Smith —a public

‐ corruption case—is helpful. “[In

‐ formant]: Last week I paid you $7,000 for a letter that my cli

‐

ent will use to seek a grant for a daycare center. Do you re

‐

member? [Defendant]: Yes.” Id

. at 482. The defendant’s state

‐

ment is admissible, Fed. R. Evid. 801(d)(2)(A), but the inform

‐

ant’s is not. Though it puts the defendant’s statement in con

‐

text, it only does so (and is only relevant) if the informant was

speaking the truth. The case before us is similar: the inform

‐

ant’s ”That was a big

‐ ass pistol” only puts Koren’s “Hell yea”

in context and is only relevant if the informant was speaking

the truth.

We also note that the government’s “context” argument is

strange given that the prosecutor elicited the informant’s

statement but did not elicit Koren’s response. Nothing could

put Koren’s “Hell yea” in context for the jury because the jury

didn’t know those words had been uttered. And even if we

accept the government’s explanation—that the informant’s

statement was introduced to provide context for Koren’s re

‐

sponse, but the prosecutor simply forgot to introduce the re

‐

sponse—we would have a hard time understanding why

“Hell yea” needed to be introduced and put in context. The

introduction of Koren’s initial statement (“Yea. Mother f***er

had a pistol.”) adequately undercut Amaya’s lawyer’s infer

‐

ence that Koren had remained silent, suggesting no gun ex

‐

isted. “Hell yea” served no additional purpose. Cf. Adams

, 628

F.3d at 417 (finding statement offered for truth where “there

was no need to introduce the statements for context”).No. 14

‐ 2617 19

In any event, we find that the Confrontation Clause was

not violated because the informant’s statement was not “testi

‐

monial” (an issue on which the parties’ briefs are silent). A

statement is testimonial “when the circumstances objectively

indicate that

... the primary purpose

... is to establish or prove

past events potentially relevant to later criminal prosecution.”

Davis v. Washington

, 547 U.S. 813, 822 (2006); Gaytan

, 649 F.3d

at 580; (statement is testimonial if made “in anticipation of or

with an eye toward a criminal prosecution”). “Where no such

primary purpose exists,” the Confrontation Clause is not im

‐ plicated. Michigan v. Bryant

, 562 U.S. 344, 359 (2011). 4 We de

‐

termine the “primary purpose” of a statement by conducting

“[a]n objective analysis of the circumstances of an encounter

and the statements and actions of the parties to it.” Id

. at 360.

“[T]he relevant inquiry is not the subjective or actual purpose

of the individuals involved in a particular encounter, but ra

‐

ther the purpose that reasonable participants would have

had, as ascertained from the individuals’ statements and ac

‐

tions and the circumstances in which the encounter oc

‐

curred.” Id

.

In Gaytan

, we had “no doubt” that an informant’s state

‐

ments were testimonial where they were made during a con

‐

versation with the defendant that the informant knew was be

‐ ing recorded to obtain evidence against the defendant. 649

4 Dealing with the situation before it, the Davis court wrote that a state

‐

ment is non

‐ testimonial when its primary purpose was “to enable police

assistance to meet an ongoing emergency.” 547 U.S. at 822. But in Bryant

, the Court clarified that a statement is non

‐ testimonial so long as it was not

“procured with a primary purpose of creating an out

‐ of

‐ court substitute

for trial testimony,” and that “there may be other circumstances, aside

from ongoing emergencies,” where that is the case. 562 U.S. at 358; see also

Ohio v. Clark

, 135 S. Ct. 2173, 2180 (2015).20 No. 14

‐ 2617

F.3d at 579. The informant was wired and specifically sent by

law enforcement to engage in a controlled buy of narcotics

from the defendant. A reasonable person in that position

would have known that the conversation was likely to be used

to prosecute the defendant, so the statements were testimo

‐

nial.

The situation here is different. A reasonable informant

would not have said, ”That was a big ass pistol,” to prompt

Amaya into saying something admissible, because Amaya

had already left the car. Cf. Bryant

, 562 U.S. at 365–66 (a single

conversation can “evolve” or “transition” between testimo

‐

nial and non

‐ testimonial) (citing Davis

, 547 U.S. at 828). Nor

would a reasonable informant have been trying to inform Ser

‐

geant Koren that Amaya had a gun, because Koren witnessed

everything that the informant did. Perhaps the informant

sought to lighten the tense mood; or perhaps, like Koren, he

simply “blurted out” a statement about a startling event. Cf.

Crawford

, 541 U.S. at 51 (“An accuser who makes a formal

statement to government officers bears testimony in a sense

that a person who makes a casual remark to an acquaintance

does not.”); Bryant

, 562 U.S. at 361–62 (comparing “excited ut

‐

terances” in hearsay law to non

‐ testimonial statements); id

. at

377 (the informality of a conversation weighs against finding

a statement is testimonial); Clark

, 135 S. Ct. at 2180 (same). We

need not say with certainty what the purpose was ; indeed,

there may have been “no discernible purpose at all.” Clark

,

135 S. Ct. at 2182. Because our objective analysis confirms that

the informant’s statement was not made to “establish or prove

past events,” Davis

, 547 U.S. at 822, it was non

‐ testimonial and

there was no Confrontation Clause violation. The government

argued that any Confrontation Clause violation was harmless

because of the overwhelming evidence that Amaya had a gun.No. 14

‐ 2617 21

Amaya did not respond to that argument. In any event, be

‐

cause we find no violation, we do not discuss the harmless

‐

error analysis.

B. Racketeering

1. Sufficient Evidence of Violent Assault to

Maintain Amaya’s Position

Amaya argues that the evidence was insufficient to convict

him on Count II, which charges him with violating 18 U.S.C.

§ 1959(a)(3) due to his role in punishing two Latin Kings who

had broken the gang rule that prohibited stealing within gang

territory. The statute criminalizes “assault with a dangerous

weapon” committed “for the purpose of

... maintaining or in

‐ creasing position in an enterprise engaged in racketeering ac

‐ tivity.” Amaya argues: (1) he did not participate in the assault;

or (2) if he did, it was not to maintain or increase his position

within the Latin Kings.

Amaya’s arguments are unpersuasive. Recall that we view

the evidence “in the light most favorable to the government”

and we “overturn the verdict only when the record contains

no evidence, regardless of how it is weighed, from which the

jury could find guilt beyond a reasonable doubt.” Morales

, 655

F.3d at 634 (citation and quotation marks omitted). As to

Amaya’s participation, fellow gang member Ruben Caquias,

who was present, testified that Amaya oversaw the assault.

According to Caquias, Amaya recommended the punishment

(hand

‐ smashing), chose the weapon (hammer or brick, not

baseball bat), picked the assailant (gang member “Baby28”),

and made Caquias watch the assault and report back. Also in

evidence were recordings of Amaya telling Caquias that a22 No. 14

‐ 2617

hammer or a brick should be used and later reassuring an

‐

other gang member that a brick would work. Milton Shanna,

another Latin King who was present, also said that Amaya

was present and oversaw the assault. This evidence was suf

‐

ficient to support the jury’s conclusion that Amaya partici

‐ pated in the assault.

Amaya argues that even if he participated in the assault,

the evidence was insufficient to show that he did so to main

‐

tain or increase his position in the gang. Noting that the Co

‐

rona had initially ordered more severe beatings, and Amaya

talked him down to mere hand

‐ smashing, Amaya argues that

“challenging the judgment of the highest ranking officer”

could not possibly have served to maintain or increase

Amaya’s position. We reject the implied proposition—that ex

‐ pressing disagreement with one’s boss can never be a part of

doing one’s job. Moreover, Amaya frames the issue incor

‐ rectly. The assault underlying Amaya’s conviction was the

hand

‐ smashing, so the jury’s job was to determine why

Amaya participated in the hand

‐ smashing, not why he op

‐ posed participating in a more brutal assault. There was evi

‐

dence that gang rules required beatings for members who

stole within gang territory. And both Caquias and Shanna tes

‐

tified that the hand

‐ smashing was to enforce gang rules, and

that Amaya was charged with overseeing the assaults specifi

‐ cally because he was the Regional Inca where the theft had

taken place. This evidence supports a conclusion that Amaya

participated “because he knew it was expected of him by rea

‐

son of his membership” in the gang. United States v. DeSilva

,

505 F.3d 711, 715 (7th Cir. 2007). Amaya urges a different con

‐

clusion: that he participated in the assault to save the thieves’

lives. (The reasoning is that, had Amaya not participated, the

Corona would have imposed a more severe punishment andNo. 14

‐ 2617 23

the thieves may have been killed.) But as we said in DeSilva

, “[a]lthough it is possible to speculate as to alternative motives

for the order, as [Amaya] would have us do, that is not our

role. The only question is whether a rational jury could have

found that motive beyond a reasonable doubt, and we agree

with the district court that the evidence was sufficient to sup

‐

port that determination.” Id

. at 716. So we affirm the jury’s

verdict.

2. Sufficient Evidence of Conspiracy to Partici

‐

pate in Pattern of Racketeering Activity

Finally, Amaya argues that the evidence was insufficient

to convict him on Count I, which charged him with violating

18 U.S.C. § 1962(d), part of the Racketeering Influenced and

Corrupt Organizations Act. As relevant here, the statute crim

‐

inalizes conspiring to “conduct or participate, directly or in

‐ directly, in the conduct of [an] enterprise’s affairs through a

pattern of racketeering activity.” 18 U.S.C. §§ 1962(c)–(d).

“Racketeering activity” is defined in 18 U.S.C. § 1961(1) and

includes murder, attempted murder, extortion, and drug traf

‐ ficking. A “pattern” of racketeering activity requires at least

“two predicate acts of racketeering committed within a ten

‐

year period.” Bible v. United Student Aid Funds, Inc.

, 799 F.3d

633, 659 (7th Cir. 2015); 18 U.S.C. § 1961(5).

Because Amaya was charged under a conspiracy theory,

the government was required to prove he agreed both: (1) that

he would conduct or participate in the affairs of the Latin

Kings; and (2) that some gang member(s) would commit at

least two predicate acts of racketeering. United States v. Vol

‐ pendesto

, 746 F.3d 273, 284 (7th Cir. 2014). Only the second

agreement is contested. The government was required to

prove that Amaya “agreed that a member of the conspiracy24 No. 14

‐ 2617

would commit two predicate racketeering acts,” but not that

Amaya “agreed to commit the predicate crimes personally,”

Volpendesto

, 746 F.3d at 284 (citations and quotations omitted),

nor even that “any such acts were ultimately committed by

anyone

... .” United States v. Tello

, 687 F.3d 785, 792 (7th Cir.

2012).

Amaya argues that the government relied heavily at trial

on the rules governing the Latin Kings and in particular the

Latin Kings in the Little Village neighborhood, but failed to

show that Amaya himself actually agreed to abide by those

rules. Pressing that argument, Amaya notes there was evi

‐

dence that gang members did not always follow all of the

rules. But Amaya ignores that two former Latin Kings—again,

Caquias and Shanna—testified that Amaya, as Regional Inca,

was in charge of enforcing the rules. The jury was entitled to

credit that testimony and conclude that Amaya agreed to the

rules. See Garcia

, 754 F.3d at 471 (considering “documentary

evidence of the gang’s rules” as evidence that the Latin Kings’

Corona participated in a RICO conspiracy). The rules man

‐

dated the shooting of trespassers, killing of police coopera

‐

tors, retaliatory shooting of rival gang members, and beatings

of Latin Kings who broke the rules. And though Amaya ar

‐

gues there were instances in which gang members failed to

follow the rules, he ignores the evidence of instances in which

the rules were followed. In particular, Amaya took credit for

twenty

‐ six shootings of rival gang members that took place

while he was Regional Inca.

Further, there is the extortion of the “miqueros.” The evi

‐

dence was that the extortion was a gang activity, carried out

by gang members and overseen by superiors like Amaya.

Amaya argues that the extortion did not advance the gang’sNo. 14

‐ 2617 25

affairs because the money went to the family of an imprisoned

gang member, not to the gang’s general coffers. Not surpris

‐ ingly, Amaya cites no authority to support this argument. The

jury could have concluded that sending money to the family

of an imprisoned member furthered the gang’s affairs by en

‐ couraging imprisoned members to remain loyal, rather than

cooperate with prosecutors.

Finally, there is drug trafficking. Many gang members sold

drugs and were permitted to do so by gang rules. The gang

also regulated the drug trade, prohibiting credit transactions

if the debt could not be repaid, and resolving disputes among

members that arose out of drug sales. Some money received

from drug sales was given to the gang in the form of manda

‐

tory dues, and members with lucrative drug

‐ dealing opera

‐

tions were allowed to skip the “mandatory bust outs” if they

chipped in extra money. Amaya, as Regional Inca, ensured the

dues were collected and announced a plan to redistribute the

money to ensure each chapter had adequate resources, even

those with smaller memberships.

This evidence—concerning the shootings, the extortion,

and the drug

‐ dealing—was sufficient to support Amaya’s

RICO conspiracy conviction.

III. CONCLUSION

We A FFIRM Amaya’s convictions.