(id. at 4-5.)

These alleged crimes against potential government witnesses not only threaten the
judicial process by eliminating a witness who could have provided incriminating evidence
against the defendants, but also by “sending a powerfully frightening message to others of the
terrible consequences awaiting anyone who cooperated in defendants’ prosecution.” Quinones,
2007 WL 4571412, at *5 (affirming district court’s empaneling of anonymous jury where the
indictment charged defendants with murdering a confidential informant and trial evidence
showed the defendants’ determination to kill him, both directly and through various
confederates). Courts of Appeals have upheld trial court decisions to empanel an anonymous
jury in similar circumstances. See United States v. Crockett, 979 F.2d 1204, 1216 (7th Cir. 1992)
(evidence indicated that one potential witness had been murdered and that attempts had been
made to influence or intimidate other witnesses); see also United States v. Edmond, 52 F.3d
1080, 1091-92 (D.C. Cir. 1995) (in addition to charges of violence against the defendants, there
was some evidence of planned and attempted witness intimidation); United States v. Thai, 29
F.3d 785, 801 (2d Cir. 1994) (evidence of defendants’ acts of intimidation towards their crime
victims, including attempts to kill certain victims, and murder of individual who refused to
withdraw complaints to police).

The other factors bearing on the propriety of empaneling an anonymous jury further
support granting the government’s motion. See Mansoori, 304 F.3d at 650-51. In our case,
Defendants have the means of intimidation, with one charged defendant—Miguel Martinez—still
a fugitive and other Insane Deuces members who have not been charged as defendants. In

addition, the Indictment alleges an extensive pattern of violence beyond a “large-scale,



516.) The government plans to present evidence, including audio and videotape, of a series of
meetings between the government’s main cooperating gang member witness (“CGM-1”) and the
aforementioned defendants to arrange for the murder of the suspected informant, Victim G, in
October and November 2002. (R. 597, Mot. to Empanel Anon. Jury at 6-8; R. 516, Santiago
Proffer at 91-95.)’ Contrary to Defendants’ arguments, the fact that this alleged conspiracy to
commit murder did not result in a “serious attempt on the cooperator’s life,” does not decrease
the likelihood that a similar attempt to obstruct justice or intimidate witnesses or jurors may
occur during trial. (R. 639, Resp. to Mot. to Empanel Anon. Jury at 5.)

In addition, Count Eight of the Indictment charges severed defendant Perez with assault
with a dangerous weapon upon Victim E, in an attempt to kill CGM-1. (R. 42, Indictment,
Count One { 21; id., Count Eight at 31.) Perez allegedly fired 29 rounds into CGM-1’s parents’
house when he returned to Aurora to visit his mom on Mother’s Day, injuring Perez’s father. (R.
516, Santiago Proffer at 122-24.) The fact that CGM-1’s family continues to reside in Aurora
and have contact with certain Defendants’ families does not show that this alleged attempt to
obstruct justice or intimidate witnesses did not occur, or that similar attempts would not occur at
trial. (See R. 639, Mot. to Empanel Anon. Jury at 5.) Moreover, contrary to Defendants’
arguments, the fact that the conduct alleged in the Indictment primarily occurred over a two-year
period more than four years ago does not negate the Defendants’ history of attempting to
intimidate witnesses and obstruct justice, nor does it suggest that there are no more Insane

Deuces left on the street capable of or interested in improperly influencing jurors in this case.

> The government states that Victim G in the Indictment is referred to as Cooperating
Gang Member 3 (“CGM-3”) in the Santiago Proffer.

4



gang-related operation with ready access to firearms.” Mansoori, 304 F.3d at 651. The
Indictment and the Santiago proffer contain allegations of violence “unusual enough to cause
jurors to fear for their safety,” such as murder, attempted murder of government witnesses, and
assault with a deadly weapon. /d. (citing Amuso, 21 F.3d at 1264-65). Furthermore, each
defendant faces a potential life sentence. Finally, although the publicity in this case has not yet
been extensive, in this Court’s experience, media coverage of other similar organized crime cases
in this district may become extensive once trial starts.

In granting the motion to empanel the jury, however, this Court must take “reasonable
precautions to minimize any prejudicial effects on the defendant and to ensure that his
fundamental rights are protected.” Crockett, 979 F.2d at 1215. This Court will use all of the
tools in its powers to do so, including: (1) conducting a conscientious, “searching and thorough”
voir dire; (2) instructing the jury during both voir dire and at trial that Defendants are presumed
innocent and that the government bears the burden of proving them guilty beyond a reasonable
doubt; and (3) instructing the jury during both voir dire and at trial that their their identities are
being withheld for reasons other than their own safety, such as to avoid contact between jurors
and the parties, and to ensure that both sides receive a fair and impartial determination of the
case. See Mansoori, 304 F.3d at 652; Crockett, 979 F.2d at 1216-17. Moreover, this Court alone
will instruct the jury on how to proceed anonymously, and we will accept proposed instructions
from the parties in advance on this issue.

This Court does not take the matter of empaneling an anonymous jury lightly. In fourteen

years of presiding over criminal trials, this is the first time that this Court has seated an

anonymous jury. In reviewing other recent instances where the government has requested an



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. No. 03 CR 90
FERNANDO DELATORRE, also known as Judge Ruben Castillo

“Fern,” Fern-dog,” and “Fernwood,”
BOLIVAR BENABE, also known as “Jap,”
JUAN JUAREZ, also known as “Ghost,”
JULIAN SALAZAR, also known as “Mando,”
“Comrade,” “Conrad,” Cuz,” and “Cuzzo,”

weer ye SY

HAROLD CROWDER, also known as “H-Man,”)
CHRISTIAN GUZMAN, also known as )
“Mousey,” and STEVEN SUSINKA, )
)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the Court is the government’s motion to empanel an anonymous jury to hear the
case against Defendants Fernando Delatorre (“Delatorre”), Bolivar Benabe (“Benabe”), Juan
Juarez (“Juarez”), Julian Salazar (“Salazar”), Harold Crowder (“Crowder”), Christian Guzman
(“Guzman”), and Steven Susinka (“Susinka”) (collectively, “Defendants”).’ (R. 597, Gov. Mot.
to Empanel Anon. Jury.) The Second Superseding Indictment (“Indictment”) in this case charges
Defendants with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act
(“RICO”) as members of the Insane Deuces street gang, by committing multiple narcotics
offenses and violent crimes, including murder, conspiracy to commit murder, and assault with a

dangerous weapon. (See R. 42, Indictment.) The government argues that empaneling an

* On November 21, 2007, this Court severed the trial, and these seven defendants will be
tried together in this Court. See United States v, Delatorre, 03 cr 90, — F. Supp. 2d —, 2007
WL 4152841 (N.D. Ill. Nov. 21, 2007).



anonymous jury in a criminal case, this Court has become concerned with the routine nature with
which the government has filed motions to empanel anonymous juries. See, e.g., United States v.
Salah, No. 03 CR 978 (N.D. Ill. filed Oct. 9, 2003). This is an extreme measure that should be
taken only to attempt to remedy the most serious safety issues. Nevertheless, for the reasons
discussed above, this Court reluctantly concludes that this is one of the rare cases where

empaneling an anonymous jury is warranted.

ewrenen, AE
a

judge Ruben Castillo
United States District Court

Dated: January 15, 2008



anonymous jury is necessary to protect the safety of the jurors. (R. 597, Gov. Mot. to Empanel
Anon. Jury at 1.)

The decision to empanel an anonymous jury is committed to the Court’s discretion.
United States y. Crockett, 979 F.2d 1204, 1215 (7th Cir. 1992). Empaneling an anonymous jury,
however, “is an extreme measure that is warranted only where ‘there is strong reason to believe
the jury needs protection.”” United States v. Mansoori, 304 F.3d 635, 650 (7th Cir. 2002) (citing
Crockett, 979 F.2d at 1215). “An anonymous jury raises the specter that the defendant is a
dangerous person from whom the jurors must be protected, thereby implicating the defendant’s
constitutional right to a presumption of innocence.” /d. (quoting United States v. Ross, 33 F.3d
1507, 1519 (11th Cir. 1994)). In addition, juror anonymity deprives the defendant of information
that might help him to make appropriate peremptory challenges during jury selection. Id.

Thus, in deciding whether to empanel an anonymous jury, the trial court must weigh the
need to protect “the jury’s interest in remaining free from real or threatened violence and the
public interest in having the jury render a fair and impartial verdict against the defendants’
interest in preserving the presumption of innocence and conducting a useful voir dire.” United
States v. Quinones, — F.3d — , 2007 WL 4571412, at *4 (2d Cir. Dec. 28, 2007). The Seventh
Circuit has held that “[f]actors bearing on the propriety of an anonymous jury include the
defendant’s involvement in organized crime; his participation in a group with the capacity to
harm jurors; whether he previously has attempted to interfere with the judicial process; the
severity of the punishment that the defendant would face if convicted; and whether publicity

regarding the case presents the prospect that the jurors’ names could become public and expose

them to intimidation or harassment.” Mansoori, 304 F.3d at 650-51 (citing United States v.



Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994); United States v. Edmond, 52 F.3d 1080, 1090 (D.C.
Cir. 1995)). “Something more” than the organized-crime label is needed to justify juror
anonymity, such as a “demonstrable history or likelihood of obstruction of justice” by the
defendants or a “showing that trial evidence will depict a pattern of violence by the defendant
and his associates such as would cause a juror to reasonably fear for his own safety.” Mansoori,
304 F.3d at 651 (citing Crockett, 979 F.2d at 1216).

Defendants argue that pursuant to Mansoori, this Court should deny the government’s
motion to empanel an anonymous jury. (R. 639, Resp. to Mot. to Empanel Anon. Jury at 3.) The
circumstances in Mansoori, however, are distinguishable from the instant case. In finding that
the circumstances did not warrant empaneling an anonymous jury in that case, the Seventh
Circuit relied heavily on the fact that “the district court made no finding that the defendants had a
history of intimidating witnesses or otherwise obstructing justice or that they were likely to do so
in connection with th{at] trial.” Mansoori, 304 F.3d at 651. While “allegedly, some of the
witnesses and their families had been threatened,” the district court explicitly disavowed reliance
on those alleged threats. Jd. at 649,

In the instant case, by contrast, the government has alleged with sufficient particularity
that the defendants have a history of intimidating witnesses or otherwise obstructing justice such
that they may do so in connection with this trial. The Indictment specifically charges two acts of
violence designed to interfere with the judicial process and witnesses. In Count Four, the
Indictment charges Defendants Juarez and Salazar, together with severed Defendants Morales

and Barbosa, with conspiring to murder Victim G, an Insane Deuces gang member whom

Defendants thought was cooperating with the police. (R. 42, Indictment, Count Four at 27; R.