or if you say that you will, [ will hold you at the MCC while the trial proceeds ....” (/d, at 20.)

The Court further stated: “T really want lo emphasize this to all defendants, talking to you person
to person, not judge to defendant. All you’re going to do is hurt yourself in the cycs of the jury. I
would really urge you not to do that.” (Jd) Benabe thereafter continued to interrupt the Court
and to assert his jurisdictional arguments. (/d. at 20-21.) The Court directed the marshals to
remove Benabe from the courtroom. (/d. at 21.) Shortly thereafter, Delatorre began reasserting
his jurisdictional arguments. (/d.) The Court directed the marshals to remove Delatorre from the
courtroom. (/d.) Delatorre continued to speak and to disrupt the proceeding until he was
physically removed from the courtroom, (/d.)

‘The Court held one final status hearing on February 5, the day before the trial was
scheduled to begin. (2/5/08 Tr.) The Court began by asking the attorneys whether the
defendants had been provided with copies of this Court’s opinion. (2/5/08 Tr. at 6-7.)
Delatorre’s attorncy stated that he had attempted to give Delatorre a copy but that he had refused
to accept it. (/d. al 7.) The other attorneys indicated that they had provided copies of the opinion
to their clients. (Jd. at 6-8.) The Court then siated, “Let me also add to it that I will consider
from this point on---and I’ve been patient to this point---that any outbursts by a defendant from
this point on without the Court’s permission, I will consider contempt of court... . Now, my
priority is simply to allow both sides to have a fair trial and to have the government put to its
burden of proof. ‘That is my priority. So I do not want to go down this road, but I feel compelled
to proceed with the questioning of each defendant in order to ensure that tomortow’s proceeding
and every proceeding thereafter takes place in an orderly fashion in compliance with the Mannie

opinion.” (/d. at 9.) The Court then proceeded to question each defendant individually regarding

20


hearing. (Trial ‘Ir. at 3477.) Juarez has not established that the challenged statements were
knowingly or intentionally false. Even assuming he could do so, the affidavit contained
information sufficient to establish probable cause even without considering the challenged
statements, Accordingly, the Court finds no basis to grant a new trial on this ground.
XVI. Motion to Reconsider Juror Issues

The final matter to be addressed is the defendants’ motion to reconsider the Court's
August 21, 2008, opinion denying their post-trial motions alleging juror misconduct. (R. 1050,
Joint MoL. to Reconsider.) For reasons fully explained in the opinion, after considering all of the
defendants’ arguments, this Court concluded that no further evidentiary hearing or other type of
relief was warranted on the grounds of alleged juror misconduct. See Delatorre, 2008 WL.
3893772. The motion to reconsider contains no arguments not already given careful
consideration by the Court, and the Court finds no basis within the motion to alter its prior ruling.
Accordingly, the motion is denied.

CONCLUSION

For the reasons stated herein, the delendants’ motions for acquittal or a new trial (R.
1005, 1012, 1014, 1015) are denied. The defendants’ motion to reconsider (R. 1050) is also
denicd. In deference to the related trial currently proceeding before Judge Leinenweber, see
supra footnote 1, this Court will not proceed with any sentencing proceedings for these

defendants until the related trial has been completed.

Entered: a

Fudge Ruben Castillo
United States District Court

Dated: October 8, 2008

37


information he sought in his pretrial motion, he could not adequately prepare for cross-
examination of various government witnesses. (R. 1014, Joint Mot. at 14-19.) The Court finds
this argument without merit. The government provided defendants with unredacted copies of all

cooperating gang member statements and testimony more than a year in advance of trial.

More than two years in advance of trial, the government provided the defendants with copies of

police reports, ATF reports, and grand jury statements of civilian witnesses, with identifying
information of those witnesses redacted to protect their safety. Throughout trial, the government

provided to defense counsel one week in advance the list of upcoming witnesses and complete

copies of their statements, including their names. None of the defense attorneys requested
additional time to prepare for cross-examination of civilian witnesses.? Guzman's counsel
extensively cross-examined the civilian eyewitnesses about their identifications of Guzman. In
light of the record, the Court finds no basis to grant a new trial on this ground.
VI. Santiago Proffer

The defendants next argue that this Court erred in denying their motion for a more

specific Santiago proffer.’ (R. 1014, Joint Mot. at 19-20.) The Santiago proffer in this case

? Guzman himself raised an issue of wanting to call additional witnesses in his defense.
The Court exhaustively explored this issuc with Guzman’s attorneys, who explained on the
record their reasons for deciding not to call the witnesses identified by Guzman. (Trial Tr. at
4846, 4865-77.)

} Under United States v. Santiago, 582 \'.2d 1128 (7th Cir. 1978), overruled on other
grounds by Bourjaily v. United States, 483 U.S. 171 (1987), the statements of unindicted co-
conspirators are admissible as non-hearsay if the government proves prior to trial that a
conspiracy existed, that the defendant and the declarant were members of the conspiracy, and that
the statements were made during the course and in furtherance of the conspiracy. Wantuch, 525
T'.3d at 511 n.3. The admissibility of the co-conspirator statements is subject to the trial court’s
“Jater determination that the government proved these foundational elements at trial.” Jd.

14


from the multitude of logistical and substantive issues presented by this case, and refused to
answer the Court’s direct questions about whether they intended to conduct themselves with
basic levels of decorum during the trial. This situation would have been difficult enough had
Benabe and Delatorre been the only two defendants in this case. They werc not. It was the duty
of this Court to make every effort to safeguard the fair trial rights of the other five defendants,
who were not disruptive during court proceedings. Mannie, 509 F.3d at 856-57. The stakes were
particularly high given the complexity and estimated length of the trial in this case, which the
government predicted could last up to four months. The jury pool was carefully prescreened for
atrial of this length over the course of two months, background checks were conducted by
pretrial services, and each potential juror filled out a lengthy background questionnaire. (See R.
543, 544; Trial Tr. at 19-23). Against this backdrop, the Court found it necessary to gain
assurances from Renabe and Delatorre that they intended to conduct themselves appropriately
during the trial. ‘hey refused to give a direct answer to the Court’s questions, and instead gave
every indication that they fully intended to disrupt the trial based on their view that they were
being illegally detained by a Court with no jurisdiction over them, To allow these two
defendants to appear at trial and immediately taint the carefully selected jury pool with their
outbursts, causing months of delay, would not have been (air to the other defendants. See
Mannie, 509 F.3d at 856-57.

This Court was thus left to consider the three options outlined by the Supreme Court in
Allen: binding and gagging the defendants; finding them in contempt; or excluding them from
the courtroom. As to the first option, this Court shares the Supreme Court’s concern that binding

and gagging a defendant, though constitutionally permissible, “is itself something of an affront to

24


The defendants suggest that the evidence was insufficient because the government’s

principal witness, Orlando Rivera, a former high-ranking member of the Aurora Insane Deuces,
“was thoroughly impeached.” (R. 1014, Joint Motion at 2.) To obtain a new trial based on the
credibility of a witness, the defendants must show that the witness’s testimony was “incredible as
a matter of law,” either because it would have been physically impossible for the witness to
observe what he described, or becausc it would have been impossible under the laws of nature for
the event described by the witness to have occurred. United States v, Ortiz, 431 F.3d 1035, 1039
(7th Cir. 2005). The defendants do not come anywhere near meeting this high standard. Instead,
they rely on discrepancies in Rivera’s account and his motive for providing testimony favorable
to the government---evidence that is insufficient to establish that his testimony was incredible as
a matter of law. Jd. “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 interfere, as the jury is the final
arbiter on such questions.” United States vy. Aleantar, 83 V.3d 185, 189 (7th Cir. 1996). For
these reasons, the Court rejects the defendants’ argument.

Guzman separately argues that there was insufficient evidence against him on the
racketeering charge. (R. 1014, Joint Mot. at 2-7.) ‘The Court finds no merit to this argument.
First, there was significant evidence of Guzman's membership in the Insane Deuces, including
the testimony of multiple cooperating gang members, the testimony of Aurora Police Detective
Jeff Wiencek, and the tape of a July 5, 2002, gang mecting. There was also significant evidence
that a primary responsibility of an Insane Deuces gang member was to kill rival gang members,
and that one of the ways to advance within the gang was to commit violence against rival gang

members. ‘The evidence also established that Guzman personally committed at least two acts of


subsequent cases. See United States v. Campione, 942 P.2d 429, 437-38 (7th Cir. 1991); United

States v. Caliendo, 910 F.2d 429, 438 (7th Cir. 1990). The instruction was proper for the reasons
stated above, and the Court finds no basis to grant a new trial on this ground,

dD. Verdict Forms

The defendants next argue that the Court erred in using the government’s proposed
verdict forms in phase two of the deliberations. (R. 1014, Joint Mot. at 40-41.) This issue was
briefed prior to the verdict, and the Court fully considered the arguments of the defendants
regarding the verdict forms. (R. 890, 900, 901.) The Court continues to view the verdict forms
used as setting forth in a logical and straightforward manner the various questions the jury
needed to answer in phase two. Accordingly, the Court rejects this argument.
XIV. Transcripts in Jury Room

The defendants argue that the Court erred by providing the jury with transcripts in the
jury room. (R. 1014, Joint Mot. at 41-42; R. 1012, Juarez’s Mot. at 3-6.) During their
deliberations, the jury requested that they be allowed to review certain transcripts from the trial.
The defendants objected io this request, but aftcr fully considering the defense arguments, the
Court overruled the objections and permitted the jury to have the transcripts. (See Trial Tr. at
6203-25.) ‘The Court reasoned: “The jury has been deliberating now almost a weck. It’s a very
careful deliberation, as far as I can tell... . The jury has made a very pointed request for certain
testimony. I believe we should assist them.” (Trial Tr. at 6217.) In sending the transcripts back
to the jury room, the Court gave the following limiting insiruction:

Enclosed are the exact trial transcripts you requested yesterday

afiernoon. As you well know, these transcripts are only a portion
of the entire trial. Any testimony that was inadmissible or any part

35


whether they intended to speak without the Court’s permission during the trial. (Jd. at 9-20.)

Susinka, Juarez, Guzman, Crowder, and Salazar all responded that they did not intend to speak
without the Court’s permission during trial. (/d.)

When the Court questioned Benabe, however, he again began asserting his jurisdictional
arguments. (/d. at 10-11.) The Court advised Benabe that these arguments had been rejected for
the reasons fully explained in the January 30 opinion, that he had preserved the issue for appeal,

and that the Court was not going to debate the matter with him further, (/d, at 11-12.) The Court

then asked him directly, “Do you intend to make any statements in front of the prospective jurors
or the jury that is picked. . . . without the cxpress permission of this Court?” (/d. at 12.) Benabe
did not wait for the Court to finish this question, interrupting the Court to again assert his
jurisdictional arguments. (/a.) He continued to speak and to interrupt this Court, despite the
Court’s repeated efforts to redirect him to the Court’s question about his courtroom behavior.
(id. at 12-13.) The Court asked him again whether he intended to speak without the Court's
permission during trial, and advised him, “I’m going to ask you to listen closely to the question
because if you do not answer the question, you will be removed from this courtroom, and you
will not be here tomorrow,” (/d, at 13.) Benabe continued to make non-responsive statements
regarding the Court’s lack of jurisdiction over him. (/d. at 13-14.) The Court then had the court
reporter read back the question, and asked, “Mr. Benabe, do you understand the question? The
question----” (dd. at 14.) Benabe interrupied the Court again, responding, “I understand very
well, Judge. I’m illegally being prosecuted. This Court has not addressed that issue.” (/d.) At
that point, the Court directed the marshals to remove Benabe from the courtroom. (/d.)

The Court subsequently turned to Delatorre, inquiring whether he had read the Court’s

21


pretrial proceedings “was a strong indication that [he] would continue to be disruptive at trial.”
id. a1 1081 & n. 3. Based on this conduct, the Seventh Circuit held that the trial court did not err
in revoking the defendant’s Sixth Amendment right to represent himself at trial. /d. at 1081.

Similarly, in United States v. Brown, 791 F.2d 577 (7th Cir. 1986), the Seventh Circuit
affirmed the district court's decision to hold an unruly defendant in criminal contempt based on
his pretrial conduct. The defendant, like Benabe and Delatorre, was unhappy with the Court’s
pretrial rulings and expressed his displeasure by refusing to cooperate in the proceedings. Jd. at
577-78. He repeatedly asserted arguments that had been rejected by the trial court, despite the
courl’s attempts to explain to him in detail why such arguments were unavailing. /d. at 578.
Ultimately, the tial court told the defendant that if he refused to cooperate, he would be held in
contempt. /d. ‘The defendant was “polite but resolved,” and steadfastly refused to cooperate
based on his disagreement with the court’s pretrial rulings. /d ‘The Seventh Circuit held that
under these circumstances, the defendant had forfeited his right to represent himself and was
properly held in contempt of court. /d. at 579. In approving the trial court’s decision to hold the
defendant in contempt, the Seventh Circuit reaffirmed that the court also had the option of
removing the defendant from the courtroom and proceeding with the trial in his absence. /d. at
578.

As in Brock, the pretrial conduct of Benabe and Delatorre was a “strong indication” that
they had every intention of continuing their disruptive conduct during trial. As in Brown, Benabe
and Delatorre repeated]y flouted this Court’s authority by refusing to answer questions and
repeatedly raising arguments this Court had rejected, despite this Court’s multiple attempts to

explain to them why the arguments were unavailing and advising them that they had preserved

27


discussions in which Delatorre refused to provide a direct answer to the Court’s question about

his courtroom behavior, the Court directed the marshals to remove him from the courtroom. (/d.
at 18-19.) Once again, Delatorre continued to speak until he was physically removed from the
courtroom. (/d. at 19.)

At the close of the proceedings, the Court ordered the marshals to bring Delatorre and
Benabe over to the courthouse the following day, the first scheduled day of trial, “as we try one
last time.” (Jd. at 90.) The Court also made arrangements for a closed-circuit video camera to he
sct up in the courtroom so that Benabe and Delatorre could watch the proceedings from the MCC
ifnecessary. (/d. at 21.)

On the first day of trial, Benabe and. Delatorre were brought over to the courthouse, but
they refused to meet with their attorneys or otherwise assure the Court that they would not
disrupt the trial. (Trial ‘Ir. at 4-5.) The Court ordered that these two defendants be excluded
from the courtroom, but that they be permitted to watch the proceedings from the MCC if they
wished to do so. (/d.) Benabe and Delatorre subsequently refused to watch the proceedings on
video, and the Court eventually ordered the camera equipment removed from the courtroom so as
not to distract the jury. (Trial Tr. at 84-85.) The Court advised that if either defendant expressed
a desire to watch the proceedings, the courtroom equipment would be re-installed. (Jd. at 85.)
These defendants never indicated a desire to watch the trial, nor did they indicate a willingness to
assure this Court that they would not disrupt the proceedings if allowed to return to the
courtroom, and so the entirety of the trial proceeded in their absence.

As is apparent from a review of the record, this Court was faced with two defendants who

continuously flouted this Court’s authority, disrupted ihe proceedings, diverted attention away

23


va

of the transcript that occurred outside your presence has been

removed. You must keep in mind that the trial testimony itself is

the evidence and not the raw transcripts. The transcripts cannot

replace cach juror's collective memory of a witness’s credibility.

You must, therefore, weigh all the trial evidence and not just one

particular portion of the trial. Also, please note that each of the

witnesses’ direct testimony you have requested was also

cross-examined by the defense. The entire testimony of cach

witness you have identified can be made available to you at your

written request. Your verdicts must be based on my entire jury

instructions and all the evidence.
(Trial Tr. at 6225-26.) The Court continues to view the decision to send the transcripts to the
jury room as an appropriate exercise of ils discretion, See United States v. Crowley, 285 F.3d
553, 561 (7th Cir. 2002), superseded on other grounds as stated in United States v. Redriguez-
Cardenas, 362 ¥.3d 958 (7th Cir. 2004); United States v. Keskey, 863 V'.2d 474, 476 (7th Cir.
1988). The defendants do not raise any argument not fully considered by the Court in ruling on
this issue at trial, and the Court finds no basis to grant a new trial on this ground.
XV. Juarez’s Franks Hearing

Juarez argues that the Court erred in denying him a “ranks hearing with respect to the

search warrant executed at his house on March 8, 2002. (R. 1012, Juarez’s Mot, at 10-15.) To
obtain a Franks hearing, a defendant must make “a substantial preliminary showing that a ‘false
statement knowingly and intentionally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and the allegedly false statement is necessary to the finding of
probable cause.’” United States v, Hoffman, 319 F.3d 672, 675 (7th Cir. 2008) (citing Franks v.
Delaware, 438 U.S. 154, 155-56 (1978).) Juarez points to three allegedly false statements in the

warrant affidavit which he belicves entitled him to a /ranks hearing. (R. 1012, Juarez’s Mot. at

11-12.) The Court fully considered Juarez’s arguments at trial and declined to hold a ranks

36


expressly warned that the defendants’ failure to obey this Court’s orders and exercise self-control
during court proceedings could result in exclusion from the courtroom during jury selection or
trial. Jd, at *3-4,

At a status hearing on January 31, the day alter the opinion was issued, Delatorre began
speaking out of turn almost immediately after the case was called, again raising his jurisdictional
arguments, (1/31/08 Tr. at 5.) ‘The Court responded, “[IJt is my firm decision, afler carefully
evaluating all of the factors (hat I need to evaluate to ensure that there is a fair trial, any further
disruptions of any kind by any defendant are not going to be tolerated by this Court. I will not
sever any defendant. T will use my authority to have that defendant watch all or any portion of
the trial proceedings at the [Mctropolitan Correctional Center]. That is my firm decision.”
(1/31/08 Tr, at 6.) The Court thereafter inquired of each defense attorney whether they had
received a copy of the Court’s opinion and shared it with their clients. (/d. at 6-7.) Delatorre’s
counsel stated that Delatorre had re(used to accept a copy of the opinion from him. (/d. at 6.)
Benabe’s counsel stated that she attempted to visit Benabe in the lock-up but he refused to see
her, and so she gave him a copy of the opinion when he arrived in court that morning. (/d.)

Several other defense counsel stated that they had not yet had an opportunity to review the

opinion with their clients. (/d. at 7.) Based on these representations, the Court sct one final

status hearing for February 5, and directed that by that date every defendant should have read the

opinion. (/d.) The Court further advised:

On Tuesday, T intend to ask each defendant if they intend to speak
during the trial without my court permission. Any defendant who
responds in the affirmative will be held at the MCC from day one
of the trial and will see the trial from a seat at the MCC, T will not
allow any defendant to prejudice any of the other defendants on

18


mixed verdicts in this case indicates to this Court that the jury carefully parsed through the

evidence to determine the culpability of cach individual defendant on each count. Indeed, the
jury found Guzman not guilty on Count Five of the Indictment. (R. 929.) For these reasons, the
Court concludes that Guzman was properly tricd with the other defendants.

Next, Juarez, Salazar, Guzman, and Susinka argue that they were prejudiced by their
joinder with Delatorre and Benabe, who were absent from the trial, which they claim “inevitably
tainted the trial,” (R. 1014, Joint Mot. at 12.) As detailed more fully in Section VII below,
Benabe and Delatorre were excused from the trial because of their disruptive conduct, in an effort
to protect the remaining defendants from being prejudiced by their conduct during trial. This
Court instructed the jury that they were not to consider the absence of these defendants, both
during voir dire and at the close of the evidence. (Trial Tr. at 73-84, 6116.) The Court also
instructed the jury on the government’s burden of proof and the presumption of innocence
enjoyed by all defendants through all stages of the trial. (Trial Tr. at 6116-18.) Jurors are
presumed to follow the Court's instructions. United States v. Wantuch, 525 F.3d 505, 516 (7th
Cir. 2008). The fact that the jury look more than two weeks to deliberate and ultimately reached
mixed verdicts is a strong indication to this Court that the jury carefully considered the evidence
against each individual defendant. For these reasons, the Court rejects this argument.

Finally, Benabe, Juarez, Salazar, Delatorre, and Susinka claim that the trial was tainted by
Guzman’s outburst during closing argument. (R. 1014, Joint Mot. at 12.) During the
government’s rebuttal argument, government counsel was discussing an eyewitness’s
identification of Guzman and, based on the expression on Guzman’s face, stated that Guzman

“thinks this is funny.” (Trial. Tr. at 6086.) Guzman responded, “I don’t think nothing’s funny. 1

10


jury instruction on aiding and abetting. (R. 1014, Joint Mot. at 38-39.) Instead, the defendants

wanted the Court to instruct the jury that to be guilty of aiding and abetting the racketeering
conspiracy, the defendant must have “knowingly assisted in the commission of at least two of the
predicate acts sct forth in paragraph 11 of Count One.” (R. 831.) This proposed instruction was
not a correct statement of the law following the Supreme Court’s decision in Salinus, and it was
proper to give the Seventh Circuit pattern instruction. Accordingly, the Court finds no merit to
the defendants’ argument.

B Ostrich Instruction

Benabe argues that the Court erred in giving Seventh Circuit Pattern Insiruction 4.06,
known as the “ostrich” instruction. (R. 1014, Joint Mot. at 39.) At trial, Benabe’s defense was
that, although he was a member of the Insane Deuces, he was based in Chicago far from Aurora,
and that he was merely an administrator for the gang, and was not involved in any of the violence
that occurred in Aurora. In short, there was evidence that Benabe intentionally turned a blind eye
to the violence committed in Aurora by the Insane Deuces, and the ostrich instruction was
therefore appropriate. United States v. Black, 530 F.3d 596, 604 (7th Cir. 2008) (ostrich
instruction appropriate where there is evidence defendant was willfully ignorant of criminal
activity).

Cc Pinkerton Instruction

The defendants next arguc that the Court erred in giving the Pinkerton instruction’ during

7 Under Pinkerton v. United States, 328 U.S. 640, 647-48 (1946), a member of a
conspiracy is criminally responsible for a substantive offense committed by his co-conspirators if
he was a member of the conspiracy when the offense was committed, and if the offense was
committed in furtherance of and as a foreseeable consequence of the conspiracy.

33


In their post-trial motion, the defendants argue that “subsequent proceedings regarding

Juror 79 have demonstrated that restricted information available about potential jurors limited the

defendants’ exercise of peremptory challenges in this case, with potentially significant

consequences,” (R. 1014, Joint Mot. at 25.) The defendants do not explain the basis for this
argument, but as fully detailed in this Court’s opinion addressing the allegations of juror
misconduct, this Court disagrees that the defendants were denied a fair trial based on the
presence of Juror 79, or any of the other jurors, on the jury. See Delatorre, ---F, Supp. 2d---,
2008 WL 3893772, at *13-21. For these reasons, the Court rejects the defendants’ argument.
X. Testimony of Mario Gomez

The defendants next argue that this Court erred in permitting Mario Gomez (“Gomez”) to
testify. (R. 1014, Joint Mot. at 27-28.) Gomez was the victim of a shooting on September 28,
2002, which lefi him paralyzed and confined to a wheelchair. The defendants argue that “Mr.
Gomez’s wheelchair and his emotionally depressed demeanor during the testimony rendered Mr.
Gomez’s testimony inflammatory and unfairly prejudicial.” (/@.) This Court determined that
Gomez’s testimony was admissible under Rule 403, and the Court continues to view this as the
appropriate ruling. Gomez's testimony was highly relevant, given that the gun used to shoot him
was ullimately connected to the Insane Deuces. Furthermore, Gomez’s testimony was not
cumulative, as the defendants argue. (R. 1014, Joint Mot. at 27.) Although Gomez's brother
also testified about the circumstances leading up to the shooting, his brother was not present
during the shooting itself, and thus could not provide the location of the shooter provided by
Gomez. The location of the shooter was critical since it established the location of a spent shell

casing recovered from the scene; this shell casing was used to connect the gun to the Insane

30



rejects Susinka’s argument.

Susinka also argues that there was insufficient evidence to show that he joined the
charged conspiracy or adopted the overall goals of the Insane Deuces. (R. 1014, Joint Mot. at 9-
10.) The Court rejects this argument as well. There was substantial evidence showing that
Susinka was a member of the Insane Deuces, including evidence that: he was arrested several
times with other Insane Deuces gang members; he was the getaway driver in (he murder of
Robert Perez, which was ordered by the gang leadership and committed by Insane Deuces gang
members; he was arrested on March 13, 2002, with a “nation” gun, which had been used three
days earlier in the attempted murder of two suspected Latin King gang members; he attended and
was photographed at a gang mecting on April 10, 2002; he was arrested with another “nation”
firearm on April 16, 2002; and he sold drugs as an Insane Deuces gang member. Although
Susinka’s defense theory, and his testimony at trial, was that he was not a member of the Insane
Deuces, the jury chose to reject this theory. There was substantial evidence from which the jury
reasonably concluded that Susinka was a member of the charged conspiracy.

Benabe separately argues that the evidence against him was insufficient because he was
too far geographically removed from the criminal acts that occurred in Aurora, and there was no
evidence that he had any control over the Aurora Insane Deuces who committed these criminal
acts. (R. 1014, Joint Mot. at 10.) This argument is misguided, since Benabe was convicted of
participating in a racketeering conspiracy and a drug conspiracy. In that regard, there was

substantial testimonial and documentary evidence that Benabe was a key participant in both

conspiracies, and that for several years he was the highest ranking Insane Deuces gang member

outside of prison, responsible for oversccing the operations of all factions of the gang throughout



racketeering, specifically, the attempted murder of Latin King gang member Shermain Shamley

on July 18, 2002, and the murder of David Lazcano (who was mistakenly thought to be a Latin
King) on August 11, 2002. Guzman challenges the eyewitness testimony identifying him as the
shooter in these incidents, but the fact remains that these eyewitnesses identified Guzman, and it
is not the role of this Court to “weigh the evidence or assess the credibility of the witnesses” in
ruling on the defendants’ sufficiency of the evidence claim. Orozco-Vasquez, 469 F.3d at 1106.
Moreover, there was other evidence linking Guzman to Lazcano’s murder, including the
testimony of former gang member Rivera. In short, the Court finds sufficient evidence to support
Guzman’s convictions.

Susinka separately argues that the government failed to prove that he personally
committed two predicate acts charged in the indictment. (R. 1014, Joint Mot. at 7-10.)
However, Susinka was charged with participating in a RICO conspiracy under 18 U.S.C. §
1962(d), not with a substantive RICO violation under 18 U.S.C. § 1962(c). Unlike a substantive
RICO violation, in a RICO conspiracy case the government does not have to prove particular
predicate acts were committed by a particular defendant. United States v. Glecier, 923 F.2d 496,
500 (7th Cir. 1991); Delatorre, 522 F. Supp. 2d at 1045. Instead, the government need only
prove that the defendant agreed that some member of the conspiracy would commit two or more
predicate acts of racketeering. See United States v, Salinas, 522 U.S. 52, 63-65 (1997). The
government proved that in this case. There was substantial evidence presented at trial that one of
the primary missions of the Insane Deuces was to kill rival gang members, that the members of
the gang, including Susinka, knew that primary mission and agreed to that objective, and that

multiple acts of violence were committed in furtherance of that mission. The Court therefore


trial before any of the prospective jurors. I want to make this as
clear as I can. I’ve taken the time to write this opinion because T
believe in the sincerity of different views held by defendants. .. .
But any further attempts by Mr. Delatorre or any defendant to
disrupt this trial will have to be interpreted by me as a willingness
on the part of that defendant to watch the trial at the MCC, and I
will make arrangements to ensure that happens. My preference is,
when J look at this courtroom, I see a lot of competent attorneys
who are good at putting the government to its burden of proof. The
government’s burden of proof will be stressed throughout this trial
of beyond a reasonable doubt for any allegations. I would think the
defendants would be served by having a neutral jury evaluate
whether or not the government can mect that burden of proof after
atnal. Anything less than that is just a waste of the resources of
our federal criminal justice system, and I, as indicated by the Court
of Appeals in the Mannic decision, in other decisions that they
issued with regard to Mr. Warner, Mr. Ryan, have really obligated
me to take affirmative steps to contro! what happens in this
couttroom, and I certainly will honor what my Court of Appeals
wants me to do. That’s all I’m going to say with regard to that
issue, so we will have another status Tuesday.

(1/31/08 Tr. at 7-8.) The Court thereafter addressed numerous other issues pertaining to the trial.
(/d. at 8-19.) In the midst of a discussion about the clothing to be worn by the defendants during
the trial, Benabe again began asserting jurisdictional arguments similar to those already rejected
by the Court. (/d. at 19.) The Court responded, “Mr. Benabe, all I can do is request that you read
the opinion I issued yesterday. As I understand it, you haven’t had a chance to read that, is that
correct?” (/d.) Benabe responded, “And probably will not do so, Judge, because I’m a born
sovereign.” (/d.) He thereafier demanded thal the Court provide him with “documented
evidence” explaining how the Court “presumes to have jurisdiction over a born sovereign flesh-
and-blood human being,” (/d, at 19-20.) The Court stated that it would not continue to debate
these issue with Benabe, and advised again, “On Tuesday, I will ask you whether or not you're

going to make statements without my court permission during the trial. If you give me no answer

19


conspiracy, which, by its very nature, involved multiple violent acts, including murder, attempted
murder, witness tampering, and drug trafficking. (R. 227, Indictment.) The evidence of these
acts was necessary to prove the cxistence of the enterprise, the pattern of racketecring activity,
and the defendants’ involvement in the conspiracy. The mere fact that racketeering conspiracies
may involve spillover evidence regarding predicate crimes committed by other defendants does
not require cach defendant to be tried separately, since “every member of a conspiracy is
substantively culpable for other conspirators’ acts within the scope of the conspiracy.” United
States v. Hoover, 246 F.3d 1054, 1057-58 (7th Cir. 2001); see also United States v, Goines, 988
F.2d 750, 759-60 (7th Cir, 1993) (“The government, however, may prosecute coconspirators of
every level together, from the street dealer to those who run the show. . . . [MJembers of a
conspiracy run the risk of prosecution for every crime committed in furtherance of the
conspiracy, even crimes in which they did not directly participate. As long as the crimes were
within the scope of the conspiracy they joined, they will be held liable. This rule is fair because
every member of the conspiracy benefits from the contribution of the others. ”). Moreover, the

fact that the jury reached a mixed verdict in this case is a strong indication that the jurors were

able to parse through the evidence to determine the culpability of each individual defendant. Tor

these reasons, the Court rejects this argument.

Guzman separately argues that he was prejudiced by a joint trial because of the disparity
of the evidence against him and the other defendants. (R. 1014, Joint Mot. at 11.) This Court
disagrees. The evidence established that Guzman was an integral participant in the charged
conspiracy, and that during a two-month period in 2002, he committed one murder and two

attempted murders on behalf of the Insane Deuces. Again, the jury’s careful deliberations and



the very dignity and decorum of judicial proceedings that the judge is secking to uphold.” Allen,
397 U.S. at 344. The Supreme Court has also recognized that holding an unruly defendant in
criminal contempt will often be ineffective where the defendant is “charged with a crime so
serious that a very severe sentence such as death or life imprisonment is likely to be imposed.”
Jd. at 345. This was the case here, given that the defendants were facing the prospect of very
lengthy sentences. Indeed, the Court threatened the defendants with contempt, but ihis appeared
to have absolutely no effect on their ability to conform their behavior to acceptable standards.
(See 2/5/08 Tr. at 9.) This left the Court with the option of excluding the defendants from the
courtroom.

As the record reflects, this Court made every effort to indulge these defendants, giving
them enormous leeway in voicing their thoughts and opinions, and attempting to communicate to
them in every means possible that their disruptive behavior, if continued, would result in their
absence from the courtroom during trial. Despite the Court’s repeated warnings, these
defendants continued to interrupt the Court during pretrial proceedings, refused to answer the
Court’s direct questions, and repeatedly asserted arguments that this Court had already rejected.
“|Olur courts, palladiums of liberty as they are, cannot be treated disrespectfully with
impunity... Tt would degrade our country and our judicial system to permit our courts to be
bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by
defendants brought before them charged with crimes.” Alfen, 397 U.S. at 346.

Benabe and Delatorre suggest that they should not have been excluded until they acted up
during the trial itself. The defendants cite no case law, nor is this Court aware of any, requiring

the Court to proceed in this manner. These defendants gave every indication that they would

25


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

Judge Ruben Castillo

wwe eS ee

~~

weve

Defendants.

MEMORANDUM OPINION & ORDER

Presently before this Court are the defendants’ post-trial motions seeking acquittal or a
new trial. (R. 1005, 1012, 1014, 1015.) Also pending is the defendants’ motion to reconsider the
Court’s previous denial of their post-trial motions alleging juror misconduct. (R. 1050.) For the
reasons stated hercin, the motions are denied.

BACKGROUND

The facts underlying this long-running casc involving members of the Insane Deuce
Nation street gang (“Insane Deuces”) have been set forth in numerous opinions and will not be
repeated here, except as is relevant to the pending motions. See, e.g, United States v. Delatorre,

---F. Supp. 2d---, 2008 WL 3893772 (N.D. Il. Aug. 21, 2008); United States v. Delatorre, $22 F.

Supp. 2d 1034 (N.D. Ill, 2007); United States v. Delatorre, 508 F. Supp. 2d 648 (ND. Ill. 2007);



outburst, in which he merely expressed his view that the government's evidence against him was
false, and the fact that he returned to the courtroom and was compliant during the remainder of
the trial, the Court concludes that no prejudice was suffered by any defendant. Instead, there is
every reason to believe that the jury [ollowed the Court’s curative instruction, in light of the
jury’s careful deliberations and jury verdicts ultimately reached in this case.
HI. Evidence Against Benabe

A, Motion to Suppress

Benabe argues that the Court erred in denying his motion to suppress evidence recovered
from his residence. (R. 1014, Joint Mot. at 13.) This issue was briefed by the parties prior to
trial (R. 383, 391, 392), and this Court thoroughly addressed the issue in an opinion denying,
Benabe’s motion. (R. 424, Mem, Opinion & Order.) There are no new arguments in the post-
trial motion, and for the reasons previously articulated, (he Court finds no basis to grant a new
trial on this ground.

B. Introduction of Firearms

Benabe next argues that the Court erred in admitting into evidence two handguns
recovered from his apartment, arguing that the guns were “insufficiently relevant” and “unduly
prejudicial.” (R. 1014, Joint Mot, at 14.) Federal Rule of Evidence 403 allows the district court
to exclude relevant evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice. ...” Fed, R. Evid. 403. This Court previously determined that the handguns
were admissible, and the evidence at trial further bore out the relevance of these weapons. The
evidence at trial established that Benabe was a high-ranking member of the Insane Deuces and

was responsible for running the gang outside of prison. Given Benabe’s position with the gang,

12


think you’re making this whole case up. That’s what I think you're doing.” (/d.) The Court
instructed Guzman to be quiet, but he continued, “You fabricated this whole case. You're sitting
up there lying through your teeth, without showing respect for the jurors.” (Jd) The Court
immediately took a recess and had the jury removed from the courtroom. (/d.) After being given
time to compose himself, Guzman apologized for his behavior and promised the Court that he
would not make any further outbursts if permitted to remain in the courtroom. (/d. at 6088.)
Notwithstanding the government's request that Guzman be removed for the remainder of the
trial, the Court permitted him to return based on his representations to the Court. (/@.) Guzman
sat quietly through the remainder of the trial and made no further outbursts in the presence of the
jury. During jury instructions, this Court instructed the jury, “You should not consider any in-
court action or in-court statement by defendant Christian Guzman in any way in arriving at your
verdicts. ‘hese actions and statements are not evidence against Defendant Guzman or any other
defendant.” (Tr. at 6118.) The jury is presumed to have followed this instruction. Wantuch, 525
F.3d at 516,

‘This case is distinguishable from United States v. Mannie, 509 F.3d 851 (7th Cir. 2007),

relied on by the defendants. In that case, Mannic’s co-defendant engaged in repeated outbursts,

lengthy diatribes from the witness stand, and at one point engaged in a “violent courtroom brawl”

with his attorney. /d. at 857. The Seventh Circuit found this situation “so beyond the pale” that
prejudice against Mannic had to be presumed, Jd, al 856-57. The Court reiterated throughout the
opinion, however, that this situation was unusual, and that nonmally curative instructions are the
appropriate means of dealing with an outburst by a co-defendant. /d This case does not present

the type of “beyond the pale” facts at issue in Mannie. Given the limited nature of Guzman’s

11



XII, Admission of Summary Chart

The defendants next argue that the Court erred in admitting into evidence a summary
chart of multiple violent acts committed by Rivera. (R. 1014, Joint Mot. at 33-38.) The
government prepared the chart to streamline the testimony of Rivera, who admitted being
involved in upwards of 40 violent acts during his time in the Insane Deuces. After considering
all of the defendants’ objections, the Court admitted the summary chart under Rule 1006, as well
as Rules 401 and 403. (Trial Tr. at 1494.) The Court continues to view the admission of the
chart as proper for the reasons previously stated. Moreover, even if it was error to admit the
chart, it is difficult to discern how the defendants were prejudiced by its admission. One of the
main defense themes throughout the trial was that the jury should not believe the testimony of
Rivera, who was the government’s key witness, in part because he himself had been involved in
multiple acts of violence. If anything, the summary chart served as a constant reminder to the
jury of the multiple violent acts in which Rivera admitted being involved, thus impeaching his
credibility. Indeed, in their closing arguments, virtually every defense attorney attacked Rivera’s
credibility by either referring to the chart or by mentioning the fact that Rivera admitted to
personally participating in over 40 separate acts of violence. For these reasons, the Court rejects
this argument.

XIV. Jury Instructions

‘The defendants next challenge three different instructions given to the jury. The Court
addresses each in turn.

A. Aiding and Abetting

The defendants first argue that the Court erred when it gave the Seventh Circuit’s pattern

32


Deuces. In short, the testimony of Gomez was properly admitted.
XI.‘ Testimony of John Rea

The defendants next argue that this Court erred in precluding the testimony of John Rea, a
defense investigator who would have testified concerning statements made to him by Luis
Lomelli (“Lomelli”) about his participation in a shooting along with government witness Orlando
Rivera. (R. 1014, Joint Mot. at 28-32; R. 1012, Juarez’s Mot. at 6-10.) In essence, the defense
contends that Rca would have testified that on August 11, 2002, Rivera was driving a car in
which Lomelli was a passenger, and that Lomelli fired multiple rounds at a Latin King gang
member. This issuc was briefed during the trial, and the Court also heard oral argument from
both sides on this issue. (R. 841; Trial Tr. at 4759-60, 4854-59.) After considering the parties’
respective arguments, this Court determined that Lomelli’s statements were not admissible under
Rule 804(b)(3), because the portion of the statement inculpaling Rivera was not against
Lomelli’s penal interest and did not bear indicia of reliability, and further, that the statement was
inadmissible under Rule 608(b). (Trial ‘I'r. at 4857-59.) There is nothing contained in the post-
trial motion to convince the Court that it was error to exclude this hearsay statement for the
reasons previously stated. Even assuming it was crror to exclude the statement, such error would
have been harmless, given the strength of the government’s evidence and the fact that the
defendants were permitted to attack Rivera’s credibility on numcrous other grounds. See United
States v, Savage, 505 F.3d 754, 762 (7th Cir. 2007) (new trial warranted only where exclusion of
evidence “had a substantial influence over the jury and the result reached was inconsistent with

substantial justice.”). For these reasons, the Court rejects the defendants’ argument.

31


Northern Illinois, including Aurora. Again, the Court finds substantial evidence from which the
jury reasonably concluded that Benabe was a member of the charged conspiracy.

For all of these reasons, the Court rejects defendants’ arguments regarding the sulficiency
of the evidence.
Il. Severance

The defendants next claim that they should be granted a new trial pursuant to Rule 33
because they were unfairly prejudiced by a joint trial. (R. 1014, Joint Mot at 10-13.) The
severance issue was exhaustively briefed by all parties prior to trial (see, e.g., R. 151, 161, 329,
348, 356, 365, 403, 457, 461, 474), and this Court previously issued a comprchensive opinion
explaining its reasons for severing the casc into two trials. Delarorre, 522 I. Supp. 2d at 1034-

60. After careful consideration of the competing interests at stake, and the parties’ various

severance proposals, this Court concluded that trying all fourteen defendants in one single

consolidated trial would be prejudicial to the defendants, but that the defendants’ proposed
severance plans were unworkable and would require unnecessary duplication of the evidence. Jd.

at 1034-57. Without recounting all of the reasons previously articulated, the Court continues to

view its severance plan dividing the defendants into two groups as the best possible approach to
this difficult and complex case.

In their motion, the defendants argue that they should not have been jointly tried
“because of the overwhelming number of discrete acts which the jurors were required to
evaluate” as part of the charged conspiracy, rendering the jury unable to silt through the evidence
to determine who was responsible for each violent act proven at trial. (R. 1014, Joint Mot. at

12.) The Court rejects this argument. The defendants were charged with participating in a RICO


January 30 opinion. (/d. at 15.) Delatorre responded that he had “never seen a copy of it.” (/d.)
He indicated an awareness that the Court was concemed about courtroom behavior, however, and
stated, “[O]ut of fear of my life and the physical harm, I’m taking the liberty of addressing those
concerns in writing, the Court’s concerns... .” (/d.) He tendered a document to the Court,
which this Court reviewed, in which he again made non-responsive statements regarding this
Court’s jurisdiction over him.’ (/d.) Delatorre then complained that his attorncy had not given
him a copy of the Court’s January 30 opinion. (/d. at 16.) The Court asked government counsel
to give Delatorre a copy in open court. (/d.) Delatorre responded, “T would like to know if the
order bears my true birth-given name on it. If it does not, I cannot accept it.” (/d.) Delatorre
was then given a copy of the opinion, bui he rejected it because in his view it did not contain his
proper name. (/d.)

‘The Court then asked him directly, “[A]s to your courtroom behavior, sir, do you intend
to make any slatements to either the prospective jurors who will be here tomorrow or the final
jurors sclected for this case without the permission of this Court?” (Jd. at 17.) Delatorre refused
to answer the question, but instead directed the Court to his filing. (/d.) The Court stated, “Do
you understand my question?” (/d.) Delatorre again directed the Court to his filing and refused
to give a direct answer, and did so a third time after the Court instructed the court reporter to read
the question back to him, (/d. at 18.) The Court stated, “Mr. Delatorre, I’ve tried to be as patient
as I can with you. I’ve written an opinion that in my view is---” (/d.) At that point, Delatorre

interrupted the Court and stated that he’d never scen a copy of the opinion. (/d.) After further

* This document was not made part of the record, but Delatorre has attached it to his reply
in support of his pro se post-trial motion. (R. 1046, Delatorre’s Pro Se Reply, Ex. A.)

22


their arguments for appeal. “A court is entitled to obedience. Litigants. .. have the right to
appeal. They may store up errors, but they must obey in the interim.” Brown, 791 F.2d at 579.
Given the behavior of Benabe and Delatorre, and the intcrests of the other defendants, the
exclusion of these defendants was {ully warranted in this case.

Furthermore, this Court made every effort to lessen the impact of the absence of these
defendants during trial. During jury selection, the Court instructed the potential jurors as
follows: “Let me also explain to you, ladies and gentlemen, two of the seven defendants are not
here. Mr. Benabe and Mr, Delatorre have been excused from attending the trial by the Court for
reasons that have nothing to do with the merits of the trial, Let me just say that Mr. Benabe and
Mr, Delatorre, like all defendants, are presumed innocent and are entitled to a fair trial in which
the government must prove the allegations against them beyond a reasonable doubt.” (Trial Tr.
at 73-74.) The Court also questioned the potential jurors about their abilily to be fair to the two
defendants who were absent. (Trial Tr. at 74-84.) Finally, at the close of the evidence, the Court
instructed the jury as follows: “I have excused Defendant Bolivar Benabe and Defendant
Fernando Delatorre from being present in the courtroom for reasons that have nothing to do with
the merits of the trial. The fact that Defendant Benabe and Defendant Delatorre were not present
during the trial should not enter into your deliberations in any way.” (Trial ‘Tr. at 611 6.) The
Court also instructed the jury on the government’s burden of proof and the presumption of
innocence enjoyed by all defendants through all stages of the trial. (Trial ‘Ir. at 61 16-18.) The

jury is presumed to follow the Court’s instructions.® Wantuch, 525 F.3d at 516. The jury’s

§ ‘The Court notes that during a post-iria] hearing on an unrelated issuc, the jury
foreperson testified (hat the absence of these two defendants from the trial played no role in the
verdicts, (5/30/08 Tr. at 9.)

28


Motions (“Joint Reply”).)
ANALYSIS

I, Sufficiency of the Evidence

The defendants first argue that there was insufficient evidence to support their
convictions, specifically as to the RICO enterprise and the drug trafficking. (R. 1014, Joint
Motion at 1-2.) It is a “daunting task” for a defendant to prevail on a sufficiency of the evidence
claim. United States v. Cochran, 534 F.3d 631, 633 (7th Cir. 2008). In reviewing the sufficiency
of the evidence, this Court must view the evidence in the light most favorable to the government
to determine whether “any rational trier of fact could have found the essential clements of the
crime beyond a reasonable doubt.” /d. In making this determination, the Court does not “weigh
the evidence or assess the credibility of the witnesses.” United States v. Orozco-Vasquez, 469
F.3d 1101, 1106 (7th Cir. 2006).

The Court finds the evidence in this case more than sufficient to support the convictions.
The government in this case presented testimony from 100 witnesses, along with undercover
video and audio recordings, documentary evidence, weapons, and narcotics. The evidence
established that the Insane Deuces are a well-established street gang operating throughout
Northern Illinois, with principal factions in Chicago, Elgin, and Aurora, and that its members,
which include the defendants, engaged in acts of violence against rival gang members and others;
the gang was an ongoing organization with members that functioned as a continuing unit, with a

definite structure and distinct roles for its members; the gang members engaged in drug

trafficking to benefit the gang; and the gang operated a “caja” system, in which gang members

had access to a common fund of drugs, guns and money.



spanned 140 pages, most of which was single-spaced, and the government set forth an extensive
overview of the evidence it planned to introduce at trial, including summarizing the co-
conspirator stalements it intended to offer. The government incorporated by reference various
undercover recordings and cooperating gang member statements, all of which were provided to
the defendants well in advance of trial. The Court denied the defendants’ motion for a more
specific proffer, and advised them ihai they need to object at trial to any statements they believed
were nol co-conspirator statements. (R. 638.) Notably, the defendants do not point to any
statement that was erroneously admitted at trial as a co-conspirator statement. Based on the
record, the Court finds no basis to grant a new trial on this ground.

VIL. Exclusion of Benabe and Delatorre From The Courtroom

Next, Benabe and Delatorre argue that this Court denied them a fair trial by excluding
them from the courtroom during trial, (R. 1014, Joint Mot. at 20-24; R. 1005, Delatorre’s Pro Se
Mot.; R. 1015, Benabe’s Pro Se Mot.) A criminal defendant's right to be present at cvery stage
ofa tial is rooted in the Confrontation Clause of the Sixth Amendment, and is also protected by
the Due Process Clause of the Fifth and Fourteenth Amendments. Ilinois v. Allen, 397 U.S. 337,
338 (1970); United States v. Smith, 230 F.3d 300, 309 (7th Cir. 2000), This right has also been
codified in Federal Rule of Criminal Procedure 43. See Fed. R. Crim. P. 43(a).

While the right to be present during trial is one of the most basic rights afforded to a
criminal defendant, this right is not absolute. A//en, 397 U.S. at 342-43. The defendant can lose
the right to be present if, “after he has becn warned by the judge that he will be removed if he
continues his disruptive behavior, he nevertheless insists on conducting himsell'in a manner so

disorderly, disruptive, and disrespectful that his trial cannot be carried on with him in the

15


(See, e.g., R. 470, 471, 493-99, 522, 578, 607, 608, 612-15.) In each filing, Delatorre raised

essentially the same arguments, that this Court lacked jurisdiction over him because: (1) the
United States Criminal Code was never properly enacted and is thus void; (2) he is a “sovereign”
“flesh and blood man,” not the “fictional” entity “FERNANDO DELATORRE” charged in the
Indictment; and (3) United States district courts do not have jurisdiction to enforce federal
criminal law outside of the District of Columbia, Puerto Rico, Virgin Islands, and federal
enclaves and territories. De/atorre, 2008 WL 312647, at *1. Around this same time, Delatorre
also began routinely disrupting court proceedings, speaking out of turn, interrupting this Court,
and ignoring direct requests and questions from this Court, Jd, at *3. Many times Delatorre
would orally reiterate the arguments raised in his pro se filings, demanding that this Court
answer the questions posed in thosc filings, and accusing the government of illegally detaining
him.’ Jd. Shortly before trial, Benabe (who was also represented by two experienced defense
attorneys) also began raising similar “jurisdictional” challenges in multiple pro se filings. (See
R. 741-46.)

In an effort to put these purported “jurisdictional” issues to rest, this Court issued an
opinion fully explaining why these arguments were unavailing under the law of the Seventh

Circuit and the Supreme Court, See Delatorre, 2008 WL 312647, at *1-2. ‘The opinion also

4 Afler observing Delatorre’s conduct and demeanor during court proceedings, the Court
found it necessary to order an examination of his mental competency. (R. 541.) Delatorre was
subsequently found to be fully competent. This Court surmises that Delatorre may have hoped
that his outbursts would cause the Court to sever his trial from that of the other defendants. ‘The
prospect of a joint trial may have concerned Delatorre, given that he cooperated with law
enforcement early in this case and provided statements inculpating himself and others in various
criminal acts. Delatorre’s videotaped statements were offered as evidence by the government at
trial.

17


now cooperating with the government, including Orlando Rivera, a former high-ranking member

of the Aurora Insane Deuces; undercover audiolapes of gang meetings; undercover videotapes;
videotaped confessions of Delatorre; cyewitness identifications; and weapons, drugs, and gang-
related documents recovered from the defendants’ homes. On April 21, 2008, after deliberating
for more than two weeks, the jury found the defendants guilty on all but three counts. (R. 921-
929.) The jury found Guzman not guilty on Count Five, assault with a dangerous weapon on
Victim C, and they were unable to reach a verdict on Count One, the conspiracy count, against
Crowder and on Count Nine, a narcotics count, against Susinka. (R. 921, 928, 929.) ‘The Court
declared a mistrial on these latter two counts. (R. 922, 943.) After further proceedings and two
more days of deliberations, on April 23, 2008, the jury returned its verdict on Phase II, the special
factual findings pertaining to sentencing, and Phase III, pertaining to forfeiture. (R. 930-59.)
Presently pending before the Court are post-trial motions filed by the defendants alleging
numcrous reasons why they are entitled to acquittal under Federal Rule of Criminal Procedure
29, or alternatively, a new trial under Federal Rule of Criminal Procedure 33. (R. 1005,
Delatorre’s Pro Se Mot. for Reversal & New Trial (“Delatorre’s Pro Se Mot.”); R. 1012, Juarez’s
Mot. for Judgment of Acquittal Or, In the Alternative, Mot. for New Trial (“Juarez’s Mot.”); R.
1014, Joint Mot. of Delatorre, Benabe, Juarez, Salazar, Crowder, Guzman & Susinka for
Judgment of Acquittal or New Trial (“Joint Mot.”); R. 1015, Benabe’s Pro Se Mot. to Vacate the
Verdict Based on Trial in Absentia (“Renabe’s Pro Se Mot.”).) These motions are now fully
bricfed. (See R. 1030, Gov’t’s Consol. Resp. to Defs.” Post-Trial Mots. (“Gov't’s Resp.”); R.
1046, Delatorre’s Response to Gov’t’s Consolid. Resp. to Defs.’ Post-Trial Mots, (“Delatorre’s

Pro Se Reply”); R. 1048, Defs.’ Joint Reply to Gov’t’s Consolid. Resp, to Def.’s Post-Irial

ue


continue to make outbursts and otherwise disrupt the proceedings if permitted to be present
during trial. As the Seventh Circuit recognized in Mannie, when a defendant is unruly or
uncooperative, the trial court must take proactive steps to control the courtroom atmosphere and
protect the rights of his co-defendants. Based on this Court’s reading of Mannie, we could not sit
idly by and allow Benabe and Delatorre to taint the jury pool, resulting in months of delay for the
other defendants who were behaving appropriately.

In an analogous setting, the Seventh Circuit, applying A//en, held that the trial court did
nol err in revoking the defendant’s Sixth Amendment right to represent himself based on his
disruptive conduct during pretrial proceedings. United States v. Brock, 159 ¥°.3d 1077 (7th Cir.
1998). Brock involved an unruly defendant who engaged in conduct similar to Bonabe and
Delatorte. For instance, the defendant “made requests that were denied by the district judge,”
and “expressed his dissatisfaction with the judge’s rulings and explanations” by refusing to
answer the court’s questions and (o cooperate in the proceedings. Jd. at 1080. He made repeated
challenges to the court’s authority, demanding that the court provide him with a Bill of
Particulars, a request the court had already denied. /d. In short, “|d|espite the district court’s

repeated attempts to secure his compliance, Brock stubbornly adhered to his policy of insisting

that the court provide him with a Bill of Particulars and state the basis for its authority.” Jd.

Bascd on the defendant's conduct during pretrial proceedings, the trial court refused to permit
him to represent himself at trial. /d On appeal, the defendant argued that the trial court violated
his right to self-representation because he only acted up during pretrial procecdings and not at the
trial itself. Jd. at 1080. ‘The Seventh Circuit rejected this argument, holding that the defendant

had demonstrated a “lack of good faith cooperation with the court,” and that his conduct during

26



United States v, Delatorre, 438 ¥, Supp. 2d 892 (N.D. Ill. 2006). In short, the government
charged 16 members of the Insane Deuces with conspiracy to violate the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962d, committing violent crimes---
including murder, attempted murder, solicitation to commit murder, robbery, witness tampering,
and multiple narcotics offenses---in aid of the racketeering activity, and committing various
narcotics and firearms offenses. (R. 227, Second Superseding Indictment (“Indictment”).) One
defendant, Akeem Horton, pled guilty (R. 380), and another defendant, Miguel Martinez, is a
fugitive. The fourteen remaining defendants are: Fernando Delatorre (“Delatorre”), Miguel
Rodriguez (“Rodriguez”), Steven Perez (“Perez”), Romel Handley (“Handley”), Steven Susinka
(“Susinka”), Juan Juarez (“Juarez”), Christian Guzman (“Guzman”), Julian Salazar (“Salazar”),
Bolivar Benabe (“Benabe”), Moriano Morales (“Morales”), Arturo Barbosa (“Barbosa”), Harold
Crowder (“Crowder”), Brian Hernandez (“Hernandez”), Lionel Lechuga (“Lechuga”).

Prior to trial, this Court severed the trial of the 14 defendants into two groups. Delatorre,
522 F. Supp. 2d at 1056. The first group, consisting of Guzman, Benabe, Juarez, Salazar,

Delatorre, Crowder, and Susinka, were tried before this Court in a two-month trial that began on

February 6, 2008.’ (/d. at 1056-57.) During the trial, the jurors heard testimony from more than

100 government witnesses and 15 defense witnesses, (Trial Tr, at 346-5383.) Among the

evidence presented by the government was the testimony of former Insane Deuces gang members

' The trial of the second group, consisting of Handley, Rodriguez, Barbosa, Lechuga,
Morales, Hernandez, and Perez, was scheduled to begin on October 6, 2008, before Judge
Leinenweber, who graciously volunteered to preside over the second portion of the case, (R.
906, Minute Entry.) The trial of these defendants originally began on April 2, 2008, but Judge
Leinenweber had to declare a mistrial shortly after opening statements when several of the jurors
expressed a desire to be removed from the jury. (R. 892, Minute Entry; 4/2/08 Tr.)

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the second phase of the jury’s deliberations. (R. 1014, Joint Mot. at 39-40.) During the second
phase of the trial, the jury was asked to decide whether each defendant's participation in the
RICO conspiracy was based on certain types of racketeering activity, in this case, four first-
degree murders. The Court instructed the jurors that “a person commits the offense of first
degree murder when he, or one for whose conduct he is legally responsible, kills an individual, if
in performing the acts which cause the death, the person, or one for whose conduct he is legally
responsible . . . intended to kill or do great bodily harm to that individual.” (R. 945 al 6.) Under
the facts of this case, the defendants could be held responsible for first-degree murder under three
possible theories: (1) as a direct participant; (2) as an aider, abcttor, counselor, or commander; or
(3) under Pinkerton. The instruction given was an accurate statement of the law.

Contrary to the defendants’ assertion, the Seventh Circuit has not held that the Pinkerton
instruction cannot be given in conspiracy cases. (See R. 1014, Joint Mot. at 40.) The Court in a
1986 opinion raised a question about the value of giving the instruction in RICO conspiracy
cases, given that in such cases the defendant can already be punished lor substantive offenses
without invocation of Pinkerton. See United States v. Neapolitan, 791 F.2d 489, 504 n.7 (7th
Cir. 1986) (“Given that implicit within the compound nature of RICO is a concept of punishment
for substantive offenses, the commission of which was agreed to by the delendant, it is difficult

to see why the government needs to invoke a second cumulative punishment device in ihe form

of Pinkerton.”), modified on other grounds by Brouwer v. Raffensperger, Hughes & Co., 199

F.3d 961 (7th Cir. 2000), Nevertheless, the Court expressly stated that “there is nothing in RICO
precluding the use of Pinkerton instructions,” nor is there anything “wrong or improper” about

giving the instruction in RICO conspiracy cases. fd. The Court has reaffirmed that principle in

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somewhat split verdicts are a strong indication that the jurors followed this Court’s instructions.

For all of these reasons, the Court rejects the argument of Benabe and Delatorre that thcy
were denicd a fair trial based on their exclusion from the courtroom during trial.
VIII. Benabe’s Motion for a Competency Evaluation

Benabe next argues that the Court erroneously denied his request for a competency
evaluation, (R. 1014, Joint Mot. at 24.) Based on his pretrial conduct detailed above, Benabe’s
attorneys requested that he undergo a competency evaluation. (R. 729.) The opinion of this
Court, having presided over this case and observed Benabe on multiple occasions, was that
Benabe was fully competent and that his behavior was a calculated aliempt to delay and disrupt
the proceedings. (Trial Tr. at 239-41.) The Court therefore denied the motion. (R. 740.) There
are no new or compelling arguments in the post-trial motion that convince the Court that the
prior ruling was error, or that a new trial is warranted on this ground.
1X. Anonymous Jury

The defendants next argue that the Court erred in granting the government’s motion to
empanel an anonymous jury. (R. 1014, Joint Mot. at 24-26.) This issuc, too, was bricfed by the
parties prior to trial. (R. 597, 639.) This Court issued an opinion granting (he government’s
tequest for an anonymous jury, and fully explaining its reasons for doing so. Delatorre, 2008
WL 161702, at *1-4. The Court carefully considered all of the defendants’ arguments against
empaneling an anonymous jury, but determined that, given the facts of this case, there was a
credible risk that members of the jury could be in jeopardy of intimidation, and that jurors would
have undue concerns for their own safety, /d, at *2-3, Without recounting all of the reasons

again here, the Court continues to view this as an unfortunate but necessary measure in this casc.

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and the evidence that the Insane Deuces engaged in repeated acts of violence (mainly shootings)
against rival gang members, the handguns were highly relevant and were not unduly prejudicial
within the meaning of Rule 403. Thus, the Court rejects Benabe’s argument.

Cc Benahe’s Bill of Particulars

Benabe next argues that this Court erred in denying his pre-trial “Motion to Enforce the
Bill of Particulars.” (R. 1014, Joint Mot. at 14.) Benabe initially moved for a Bill of Particulars
on September 17, 2007, and the Court granted that request. (R. 442, 489.) The government
thereafter filed its written response to Benabe’s motion, which included a description of the
government’s theory of Benabe’s criminal culpability, as well as a list of examples of the
evidence the government intended to introduce at trial to prove Benabe’s participation in the
charged conspiracy. (R. 553.) Benabe was not satisfied with this response and filed a “Motion to
Enforce the Bill of Particulars.” (R. 663.) The Court denied this motion. (R. 676.) As this
Court previously concluded, a Bill of Particulars is not a vehicle to obtain a [act-by-fact detailing
of the government’s evidence; this is particularly true here where the government tendered
voluminous discovery to the defendants during the course of this case. Without any new or
compelling arguments by Benabe on this issuc, the Court will adhere to its previous ruling, and
finds no basis to grant a new trial on this ground.
Vv. Guzman’s Motion for Pretrial Witness List

Guzman argues that he is entitled to a new trial because the Court improperly denied his

motion for pretrial discovery of the government's witness list. (R. 1014, Joint Mot. at 14-19.)

Guzman’s request for additional pretrial discovery was thoroughly brieled before trial (R. $89,

610), and this Court denied his request. (R. 638.) Guzman now argues that without the

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courtroom,” Jd, at 343; see also Fed. R. Crim. P. 43(c)(1)(C) (the defendant waives his right to
be present “when the court warns the defendant that it will remove the defendant from the
courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal
from the courtroom.”). Once lost, the right can be reclaimed “as soon as the defendant is willing
to conduct himsclf consistently with the decorum and respect inherent in the concept of courts
and judicial proceedings.” Alen, 397 U.S. at 343. The Supreme Court has recognized that
removing, an unruly defendant, though unfortunate, will sometimes be necessary: “It is essential
to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks
of all court proceedings in our country.” Allen, 397 U.S, at 343. Thus, a defendant’s “flagrant
disregard” of “elementary standards of proper conduct should not and cannot be tolerated.” Jd.
A trial judge confronted with “disruptive, contumacious, stubbornly defiant defendants” must
have “sufficient discretion to meet the circumstances of each case.” Id. The Supreme Court has
identified three constitutionally permissible ways for the trial judge to handle such a defendant:
(1) bind and gag him; (2) cite him for contempt; or (3) have him removed from the courtroom
“until he promises to conduct himself properly.” /d. at 343-44.

Benabe and Delatorre arguc that they were improperly excluded from the trial because
they “were never disruptive nor disrespectful during pre-trial procecdings.” (R. 1014, Joint Mot.
at 21.) The Court finds this characterization, at best, revisionist history. The Court considers the
conduct of Benabe and Delatorre, as reflected in the record.

Beginning in October 2007, approximately four months before the trial was scheduled to
begin, Delatorre (who was represented by two highly experienced defense attorneys), began

inundating the Court with pro se motions, affidavits, petitions, notices, letters, and other filings.

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