IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

MARIANO MORALES, also known as

“Mar,” ARTURO BARBOSA, also

known as “Chipmunk,” HAROLD

CROWDER, also known as “H-Man,”

MIGUEL RODRIGUEZ, also known as

“Mental” and “Mento,” BRIAN

HERNANDEZ, LIONEL LECHUGA, and

ROMEL HANDLEY, also known as

“Romellie,”

 Defendants.

 Case No. 03 CR 90

 Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

On December 10, 2008, Defendants Mariano Morales (“Morales”),

Arturo Barbosa (“Barbosa”), Harold Crowder (“Crowder”), Miguel

Rodriguez (“Rodriguez”), Brian Hernandez (“Hernandez”), Lionel

Lechuga (“Lechuga”), and Romel Handley (“Handley”) (collectively, the

“Defendants”) were found guilty of multiple offenses, including

racketeering conspiracy and narcotics conspiracy. The jury was

unable to reach a verdict as to Defendant Steven Perez. Presently

before the Court are Defendants’ post-trial motions seeking acquittal

or a new trial (R. 1324, 1325, 1327, 1328, 1329, 1330, 1332, 1381)

and the Government’s Consolidated Response (R. 1450). For the

reasons stated herein, the motions are denied. 
 Of the defendants before Judge Castillo, Defendant Akeem 1

Horton pled guilty, and Defendants Fernando Delatorre, Steven

Susinka, Juan Juarez, Christian Guzman, Julian Salazar, Bolivar

Benebe, and Harold Crowder were tried in a two-month trial that

began in February 2008. Delatorre, 581 F.Supp.2d at 974-75. The

jury was unable to reach a verdict as to Crowder on the conspiracy

count, thus Crowder was joined for trial before this Court. See

id.

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I. BACKGROUND

The facts underlying this case, which involves members of the

Insane Deuce street gang (the “Insane Deuces”), have been set forth

in several opinions by this Court and by Judge Ruben Castillo and

will not be repeated here, except as is relevant to the pending

motions. See, e.g., U.S. v. Morales, No. 03 CR 90, 2009 WL 331518

(N.D.Ill., Feb. 10, 2009); U.S. v. Delatorre, 581 F.Supp.2d 968

(N.D.Ill., 2008); U.S. v. Delatorre, 572 F.Supp.2d 967 (N.D.Ill.,

2008); U.S. v. Delatorre, 522 F.Supp.2d 1034 (N.D.Ill., 2007); U.S.

v. Delatorre, 508 F.Supp.2d 648 (N.D.Ill., 2007); U.S. v. Delatorre,

438 F.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. § 1962(d), violent crimes - including murder and assault with

a dangerous weapon, and narcotics conspiracy - in aid of the

racketeering activity. See R. 227 (Second Superseding Indictment).

Prior to trial, Judge Castillo severed the trial of the

defendants into two groups, and this Court agreed to preside over the

trial of Defendants Morales, Barbosa, Crowder, Rodriguez, Perez,

Hernandez, Lechuga, and Handley. Delatorre, 522 F.Supp.2d at 1056.1
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The Court began the trial of these Defendants on April 2, 2008, but

had to declare a mistrial shortly after opening statements when

several jurors asked to be removed from the jury. R. 884. 

On October 6, 2008, the Court began the two-month trial of

Defendants Morales, Barbosa, Crowder, Rodriguez, Perez, Hernandez,

Lechuga, and Handley. During the trial, the jury heard testimony

from more than 100 Government witnesses and 14 Defense witnesses.

See Trial Transcript (“Tr.”) at 136-4140. Among the evidence was

testimony of former Insane Deuce gang members now cooperating with

the Government, including Orlando Rivera, a former high-ranking

member of the Aurora Insane Deuces; undercover audiotapes of gang

meetings; undercover videotapes; eyewitness identifications; and

firearms, drugs, and gang-related documents recovered from

Defendants’ homes. 

On December 10, 2008, after deliberating for approximately one

week, the jury found Defendants guilty on all but one count (the

conspiracy to murder charge against Defendant Morales). R. 1195,

1196, 1198, 1200, 1202, 1204, 1206, 1208. The jury was unable to

reach a verdict on Defendant Perez, which required the Court to

declare a mistrial as to that defendant. R. 1185. After further

proceedings and deliberations, on December 11, 2008, the jury

returned its verdict on Phase II, the special factual findings

pertaining to sentencing in which the jury determined the amounts of

cocaine, crack cocaine, and marijuana proven to be involved in the

narcotics conspiracy. R. 1197, 1199, 1201, 1203, 1205, 1207. 
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Now before the Court are Defendants’ post-trial motions alleging

numerous reasons why each is entitled to acquittal, or alternatively,

a new trial. See R. 1324, Lechuga’s Mot. for Judgment of Acquittal

and/or for a New Trial (“Lechuga Mot.”); R. 1325, Rodriguez’s Rule 33

Mot. for a New Trial and Rule 29(c) Mot. for Judgment of

Acquittal(“Rodriguez Mot.”); R. 1327, Morales’ Second Mot. for New

Trial (“Morales Mot.”); R. 1328, Hernandez’s Mot. for a New Trial or

a Judgment of Acquittal (“Hernandez Mot.”); R. 1329, Handley’s Mot.

for Judgment of Acquittal or New Trial (“Handley Mot.”); R. 1332,

Barbosa’s Post-Trial Mot. (“Barbosa Mot.”); R. 1381, Crowder’s PostTrial Mot. for Judgment of Acquittal and/or for a New Trial (“Crowder

Mot.”). These motions are now fully briefed. See R. 1450, Govt.’s

Resp. to Defs.’ Post-Trial Mots. (“Govt. Resp.”).

II. MOTIONS FOR ACQUITTAL

Defendants Crowder, Rodriguez, Hernandez, Lechuga, and Handley

move for a judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29(c) on the basis that there was insufficient evidence to

support their convictions. First, the Court will address arguments

common to multiple Defendants regarding the sufficiency of the

evidence, and then it will consider contentions specific to

individual Defendants.

A. Legal Standard

A motion for acquittal filed after the jury has returned a

guilty verdict asks the Court to set aside the verdict and enter a

judgment of acquittal. FED. R. CRIM. P. 29(c). A party challenging
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a jury conviction based on sufficiency of the evidence “faces a steep

uphill battle.” U.S. v. Graham, 315 F.3d 777, 781 (7th Cir., 2003).

However, a jury’s verdict is not inviolate. U.S. v. Radomski, 473

F.3d 728 (7th Cir., 2007). In evaluating sufficiency of the evidence

claims, a court “must determine whether after viewing the evidence in

the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt.” U.S. v. Moore, 425 F.3d 1061, 1072 (7th Cir.,

2005) (internal quotations omitted); U.S. v. Carter, 410 F.3d 942,

952 (7th Cir., 2005). When making this determination, courts “do not

weigh the evidence or assess the credibility of witnesses.” U.S. v.

Orozco-Vasquez, 469 F.3d 1101, 1106 (7th Cir., 2006). 

B. Evidence Common to Multiple Defendants

1. Testimony of Orlando Rivera 

First, multiple Defendants argue that their convictions cannot

stand because the Government’s main informant, Orlando Rivera, a

former high-ranking member of the Insane Deuces, was impeached. See,

e.g., Hernandez Mot. at 2-4; Handley Mot. at 1-5. Defendants contend

that the Government’s case depended entirely on Mr. Rivera’s

testimony, which they argue was inconsistent and unreliable as a

matter of law. 

Defendants’ arguments about the inherent unreliability of Mr.

Rivera’s testimony amount to an attack on Mr. Rivera’s credibility.

The credibility of a witness is for the jury, not the court, to
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decide. Moore, 425 F.3d at 1073. Even upon finding inconsistencies

or other flaws in a witness’ testimony, a court generally refrains

from interfering with a jury’s credibility determination when the

jury “has chosen to credit crucial testimony with full knowledge of

the many faults of the witness providing it.” Id. A witness’

testimony is not rendered “incredible as a matter of law” merely

because the witness was “impeached by certain discrepancies in his

story, by prior inconsistent statements, or by the existence of a

motive to provide evidence favorable to the government.” U.S. v.

Alcantar, 83 F.3d 185, 189 (7th Cir., 1996). In order to obtain a

new trial based on the credibility of a witness, a defendant must

show that a witness’s testimony was incredible, either because it

would have been impossible for the witness to observe what he

described, or because it would have been impossible for the event

described by the witness to have occurred. See U.S. v. Ortiz, 431

F.3d 1035, 1039 (7th Cir., 2005). 

During trial, Mr. Rivera testified for approximately seven days.

Tr. at 393-1687. During his direct examination, Mr. Rivera testified

about his prior involvement in the Insane Deuces, his cooperation

with the Government, and his deal for immunity. Counsel for each

Defendant had the opportunity to cross-examine Mr. Rivera thoroughly

regarding his motives, prior offenses, inconsistent statements, and

agreement with the Government. See id. at 1012-1687; see, e.g., id.

at 1012-27 (motives, credibility, bargain for immunity, trial

preparation, prior crimes, lies to police and in prior trial), 1039-
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41 (drug dealing and lies to dealers), 1077-82 (memory and drug use),

1202-81 (prior violent crimes and drug use), 1325-27 (payments from

the Government), 1432-38 (gang-related dangers in jail), 1586-89

(testimony during trial before Judge Castillo). During his crossexamination, Mr. Rivera admitted that he attempted murder “more than

47 times” and agreed that he would not “spend a day in prison for

those murders or attempted murders” as long as he testified

truthfully. Id. at 1036. He testified that, after agreeing to

cooperate, he was relocated and reimbursed by the Government for his

living expenses, food, and missed work. Id. at 1007, 1028. Mr.

Rivera also conceded his limited knowledge about certain events and

defendants. See, e.g., id. at 1188-90 (Defendant Crowder); id. at

1524-29, 1538-39 (Defendant Handley). 

The jury was charged with assessing the extent to which Mr.

Rivera’s motives may have influenced his testimony and with

determining whether inconsistencies in his testimony rendered it

unreliable. The Court specifically instructed the jury that they

must decide whether each witness’ testimony was “truthful and

accurate, in part, in whole, or not at all, as well as what weight,

if any” the testimony should receive. Id. at 4828. The jury was

told that they could consider multiple factors to evaluate a witness’

testimony, including the witness’ memory and any interest, bias, or

prejudice. Id. The Court also instructed the jury that they could

evaluate a witness’ inconsistent statements, prior convictions, and

immunity when determining his credibility. See id. at 4834-36.
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After reviewing the record, the Court rejects Defendants’

contentions that Mr. Rivera’s testimony was incredible as a matter of

law. After approximately three days of intense cross examination,

the jury was made well aware of potential weaknesses in Mr. Rivera’s

credibility as a witness and testimony about specific events. The

jury was fully informed about the caution and care it should employ

in assessing the credibility of testimony, and the Court has no

reason to doubt that the jury understood and abided by the Court’s

instructions. See U.S. v. Puckett, 405 F.3d 589, 599 (7th Cir.,

2005) (Courts presume “that jurors, conscious of the gravity of their

task, attend closely to the particular language of the trial court’s

instructions in a criminal case and strive to understand, make sense

of, and follow the instruction given them.”). For these reasons, the

jury is entitled to its credibility determination regarding Mr.

Rivera’s testimony. See Ortiz, 431 F.3d at 1039. 

2. Evidence of a RICO Enterprise 

Second, multiple Defendants imply in their motions that there

was insufficient evidence of a RICO enterprise.

On Counts One, racketeering conspiracy, the jury was instructed

that the Government must prove three elements beyond a reasonable

doubt: (1) an agreement to conduct or participate in the affairs (2)

of an enterprise (3) through a pattern of racketeering activity. Tr.

at 4840-41; see also U.S. v. Olson, 450 F.3d 655, 664 (7th Cir.,

2006). The Court further broke down the elements of RICO and

explained what the Government must prove in order for the jury to
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find an enterprise, a conspiracy, a pattern of racketeering activity,

and an individual Defendant’s membership in the racketeering

conspiracy. Tr. at 4841-51. In a similar manner, the Court

instructed the jury as to what the Government must prove under Count

Nine, the narcotics conspiracy charge. Id. at 4855-59. 

The Court finds no reason to challenge the jury’s determination

that the Insane Deuces constituted a criminal racketeering

enterprise. The Government offered extensive evidence regarding the

street gang operations of the Insane Deuces, including audio and

visual recordings, cooperating gang member testimony, and the gang’s

by-laws, as well as evidence that its members, including Defendants,

engaged in acts of violence against rival gang members and other

victims. Overwhelming evidence established that the Insane Deuces

functioned as a continuing unit with a definite structure, chain of

command, and distinct roles for gang members; that members engaged in

drug trafficking to benefit the gang; and that the gang operated a

“caja” system, in which members had access to a common fund of money,

drugs, and guns. See, e.g., Tr. 415-27, 454-60, 914-15, 2330-40,

2992, 3279-96. This type of street gang operation constitutes a

long-recognized form of a RICO enterprise. See 18 U.S.C. § 1961(4);

see, e.g., Olson, 450 F.3d at 668 (the Latin Kings street gang); U.S.

v. Phillips, 239 F.3d 829, 845-46 (7th Cir., 2001) (the Dawg Life

street gang); see also Delatorre 581 F.Supp.2d at 975-76 (J.

Castillo) (finding sufficient evidence to uphold the jury verdict

that the Insane Deuces, Aurora chapter, constituted a RICO
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enterprise). The Court finds that a rational fact-finder could have

found that an enterprise existed beyond a reasonable doubt. Thus,

the Court will not disturb the jury’s verdict. See Moore, 425 F.3d

at 1072. 

C. Evidence Specific to Individual Defendants

1. Evidence against Defendant Crowder

Defendant Crowder separately argues that no rational trier of

fact could have found sufficient evidence against him on the

racketeering charge. Crowder Mot. at 1-2; see also R. 1112

(Crowder’s Mot. for Judgment of Acquittal, filed Nov. 17, 2008).

Crowder contends that the Government failed to prove beyond a

reasonable doubt that he was an Insane Deuce gang member or otherwise

participated in the conspiracy.

The Court rejects Crowder’s argument. The jury heard evidence

of Crowder’s membership in the Insane Deuces, including cooperator

testimony that identified him as “H-Man,” and testimony that Crowder

had previously been a Gangster Disciple and later became an Insane

Deuce member and gunner. Tr. at 436, 442-43, 839-40, 2386-90.

Throughout the trial, the Government offered evidence that a primary

responsibility of an Insane Deuces gang member was to kill and

attempt to kill rival gang members, particularly Latin Kings. The

evidence established that Crowder personally participated in numerous

acts of racketeering, including the attempted murder of Latin King

drug dealer Juan Corral, the murder of Robert Perez, and the shooting

at the car of the Ernesto Rosas family (mistaking them for Latin
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Kings). See, e.g., Tr. at 621-26, 903-05, 956, 1648, 2140, 2185-89,

2276-77. 

Based on the totality of the evidence, the jury determined that

Crowder was, in fact, an Insane Deuce member and that he committed

acts of racketeering in furtherance of the conspiracy. It is not the

role of this Court to “weigh the evidence or assess the credibility

of witnesses” in ruling on Crowder’s sufficiency of the evidence

claim, see Orozco-Vasquez, 469 F.3d at 1106, and the Court finds that

a rational fact-finder could have concluded that Crowder was guilty

of the racketeering conspiracy. Accordingly, the Court finds

sufficient evidence to uphold Crowder’s convictions. 

2. Evidence against Defendant Rodriguez

Defendant Rodriguez argues that there is insufficient evidence

supporting his convictions of RICO conspiracy and narcotics

conspiracy. Rodriguez Mot. at 4-7. 

The Court finds no merit to either argument. With respect to

the racketeering conspiracy conviction, the Government provided

substantial evidence of Rodriguez’s longtime membership in the Insane

Deuces, including audio recordings of Rodriguez self-identifying as

a member of the gang and discussing making decisions as a leader in

the organization. See, e.g., Tr. at 435-37, 469-70, 509, 700-09,

732, 739-40. On these tapes, the jury also heard Rodriguez discuss

the gang’s plans for multiple violent acts, including fighting the

rival Ambrose gang and dealing with an Insane Deuce members suspected

of cooperating with the police. See, e.g., id. at 525, 740, 766,
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985-87. In addition, the Court finds that, based on the evidence

presented during trial, the jury could have found that Rodriguez,

acting as an Insane Deuce member, possessed and sold firearms to

benefit the gang. See, e.g., id. at 917-20, 2756-59, 3324-29. In

short, the Court finds sufficient evidence to uphold Rodriguez’s

racketeering conspiracy conviction.

Similarly, the evidence supporting Rodriguez’s narcotics

conspiracy conviction is supported by the evidence. As discussed

above, the Government offered ample evidence, including testimony

from cooperating gang members, consensual recordings, and controlled

purchases, that demonstrated that members of the Insane Deuces sold

narcotics and that the gang benefitted from narcotics trafficking.

See infra at 9-11. The Government’s evidence showed that the Insane

Deuces operated a “caja” system, in which gang members were able to

sell drugs from the caja, giving back part of the profit to the caja.

See id. Moreover, the evidence established that the gang operated a

“free enterprise” system of drug dealing, which allowed members to

purchase drugs from any source, including non-members, so long as the

drug sales benefitted the gang in some way. See id. 

After reviewing the record, the Court finds no shortage of

evidence supporting the jury’s finding that Rodriguez was a member of

the narcotics conspiracy. Among other evidence, the jury heard an

audio recording of a meeting on June 7, 2002, in which Rodriguez

discussed the free enterprise system of drug trafficking and of his

presence at a July 5, 2002 meeting, in which gang members discussed
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use of drugs from the caja. Tr. at 725, 735. The Court, therefore,

finds sufficient evidence to uphold both Rodriguez’s racketeering

conspiracy and narcotics conspiracy convictions such that disturbing

the jury verdict on either counts would be improvident. See Moore,

425 F.3d at 1072. 

3. Evidence against Defendant Hernandez

Defendant Hernandez challenges the sufficiency of the evidence

supporting his narcotics conspiracy conviction. Hernandez Mot.

at 1-4. Specifically, Hernandez argues that the Government did not

provide sufficient evidence proving that he was a member of the

conspiracy, participated in controlled buys of drugs, or sold drugs

to benefit the Insane Deuces. Hernandez also challenges the

sufficiency of the evidence supporting his liability for the

quantities of drugs indicated in the special verdict forms.

The Court rejects Hernandez’s arguments. The Court finds that

the jury heard ample evidence regarding Hernandez’s membership and

rank in the Insane Deuces and that Hernandez participated in the

narcotics and weapons trafficking alleged by the Government. See,

e.g., Tr. at 433-34, 2360-64, 2990. The Government presented

evidence that Hernandez was present at the June 7, 2002 meeting where

the caja was discussed; a recorded audio conversation from May 2002

in which he requested drugs from a Government informant; and a July

2002 video recording that captures him selling narcotics. See, e.g.,

id. at 674-76, 681-82. Based on this and other evidence at trial,
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the Court finds that a reasonable jury could convict Hernandez on the

narcotics conspiracy charge. Moore, 425 F.3d at 1072. 

4. Evidence against Defendant Lechuga

Defendant Lechuga argues that his racketeering and conspiracy

convictions cannot stand because no reasonable jury could have found

that he did not withdraw from the conspiracies. Lechuga Mot. at 1-8.

Lechuga contends that the Government failed to meet its burden of

providing sufficient evidence contradicting his withdrawal from the

conspiracy or that he agreed to rejoin the Insane Deuces.

A proper withdrawal is a defense to conspiracy. See U.S. v.

Read, 658 F.2d 1225, 1232-34 (7th Cir., 1981). “In order to withdraw

from a conspiracy, a defendant must cease his activity in the

conspiracy and take an affirmative act to defeat or disavow the

conspiracy’s purpose, either by making a full confession to the

authorities or by communicating his withdrawal in a manner reasonably

calculated to inform his coconspirators.” U.S. v. Bullis, 77 F.3d

1553, 1562 (7th Cir., 1996). A defendant’s conduct after a purported

withdrawal is relevant to determine whether the withdrawal was

complete and in good faith. Id. The defendant bears the initial

burden of providing evidence that he withdrew. Read, 658 F.2d at

1236. Once this burden is satisfied, the government must “disprove

the defense of withdrawal beyond a reasonable doubt.” Id. A

defendant’s proper withdrawal starts a five-year statute of

limitations, which can bar prosecutions for conspiracy made outside

that five-year window. See id. at 1233. 
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Lechuga first argues that the evidence at trial clearly

established that he withdrew from the conspiracy by retiring from the

Insane Deuces in 1996. Lechuga points to audio tapes of two meetings

in which he discusses his prior decision to retire, rather than be

made a senior member of the Insane Deuces. See Lechuga Mot. at 4-5.

In support of his argument, Lechuga contends that the Government’s

main witness, Orlando Rivera, conceded during cross-examination that

Lechuga believed that he was retired from the gang. See Lechuga Mot.

at 5; see also Tr. at 1446-56. 

Second, Lechuga contends that the Government was unable to prove

beyond a reasonable doubt that he agreed to rejoin the Insane Deuces.

According to Lechuga, aside from evidence of his mere presence at two

gang meetings during 2002, the Government put forth no evidence that

Lechuga actually intended to rejoin the Insane Deuces or agreed to

rejoin the Insane Deuces. 

In response, the Government maintains that there was ample

evidence that: (1) Lechuga never withdrew from the Insane Deuces’

conspiracy, and (2) if he did withdraw, he rejoined the conspiracy in

2002. See Govt. Resp. at 11-15. First, the Government argues that

Lechuga’s purported “retirement” from the gang was merely a period of

inactive status and did not constitute a legal withdrawal from the

conspiracy. Id. at 12 (citing Bullis, 77 F.3d at 1562). According

to the Government, as supported by the definition of “retirement” in

the gang’s by-laws, at all times during the time period of the

conspiracies, Lechuga was a member of the Insane Deuces. Before June
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2002, Lechuga was a Senior member, and after June 6, 2002, he was

“rolled back” to the status of Junior member. See Tr. at 445. The

Government asserts that Lechuga’s own recorded words at the June 7,

2002 meeting demonstrate his ongoing membership in the Insane Deuces

and the conspiracy. Second, the Government asserts that, even if

Lechuga had withdrawn from the conspiracy, his active participation

in the gang meetings on June 7, 2002, and July 5, 2002, demonstrate

that he rejoined the conspiracy.

The Court finds that the Government presented sufficient

evidence for the jury to find either that Lechuga never withdrew from

the conspiracy or that he rejoined the conspiracy. The law is clear

that “[i]nactivity alone does not constitute withdrawal from a

conspiracy, the defendant must terminate completely his active

involvement in the conspiracy, as well as take affirmative steps to

defeat or disavow the conspiracy’s purpose.” U.S. v. Hargrove, 508

F.3d 445, 449 (7th Cir., 2007) (internal quotations omitted). The

jury was presented with audio recording of conversations during the

June 2002 and July 2002 meetings, during which Lechuga participated

in decisions regarding the operations and future of the Insane Deuces

and weighed in potential changes to the bylaws, use of the caja,

eligibility for promotion in gang ranks, and problems with rival

gangs. See, e.g., Tr. at 681-84, 703-09, 735-42; see also Tr. at

761-63 (use of caja during 2002). The Insane Deuces’ bylaws suggest

that “retirement” from the gang does not entail that the member

permanently ceases gang activity: 
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Once a member of the organization, always a

member. If you retire, then you shall be a

retired member, non-active member, unless the

member disrespects the Nation in such a way that

its intolerable to become addicted to drugs or

is a homosexual or trick, trick meaning telling

on another member of this organization. 

See id. at 3290-91. 

In this case, the jury was provided a specific instruction

regarding Lechuga’s theory of his defense of withdrawal, what he

needed to prove to succeed in this defense, and what the Government

needed to establish for the jury to convict. Id. at 4860. The jury

was entitled to assess the probative value of the evidence in its

determination regarding whether Lechuga withdrew as a member of the

conspiracy, and the Court finds that Lechuga has not demonstrated

that, as a matter of law, no reasonable juror could have convicted on

the evidence presented. See Moore, 425 F.3d at 1072. Consequently,

the Court finds that there was sufficient evidence upon which a

reasonable jury could have found Lechuga guilty beyond a reasonable

doubt on the racketeering and narcotics conspiracy charges against

him.

5. Evidence against Defendant Handley 

In his motion, Defendant Handley contends that, each piece of

evidence offered against him, even when viewed in the light most

favorable to the prosecution, is “fraught with undeniable reasonable

doubt,” such that his conviction cannot stand. Handley Mot. at 2.

Handley first challenges the credibility of testimony and evidence

provided by Orlando Rivera, which implicates Handley in gang-related
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activities, including the provision of firearms to other gang

members. Likewise, Handley criticizes the testimony of another

Government cooperator, Akeem Horton, regarding Handley’s involvement

in the “Wild West” shooting, and the contradictory statements of two

other Government witnesses. See id. at 1-5. 

Second, in his motion for a new trial pursuant to Rule 33,

Handley argues that the indictment against him should be dismissed

because the Government failed to prove the “essential factual

allegations in the indictment” at trial, “thereby resulting in a

fatal variance.” Id. at 8-11. Handley argues that the Government

alleged in the indictment only that he was an Insane Deuce member,

held the rank of Second Seat Shorty, and gave orders in that

capacity, but the Government did not prove that Handley held the

position of Second Seat Shorty during trial. According to Handley,

because the Indictment makes no other factual allegations against

him, it would have been invalid on its face without the inclusion of

his alleged rank in the gang, and the fact of his rank was “necessary

and material” to the Indictment. Id. at 9-10. 

In the Government’s view, Handley’s convictions are amply

supported by the record. According to the Government, Handley’s rank

in the Insane Deuces is immaterial, and his membership in the gang

and agreements to commit violent acts and to sell drugs as an Insane

Deuce are demonstrated by overwhelming evidence, including in-court

identifications, testimony from cooperating witnesses, and audio

recordings of conversations between gang members. See, e.g.,
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Tr. 428-29, 451, 661, 756-57, 813-14, 856-57, 2349-56, 3004-07. For

example, an Aurora police officer testified that, during a February

2002 interview, Handley told him that he was “a King killer and a

Deuce for his whole life.” See id. at 3635-36; see also id. at 3641.

The Government also contends that its evidence showed that Handley

possessed Insane Deuce firearms, at least one of which was used in

gang-related a shooting. See, e.g., Tr. at 670, 794-95.

The Court agrees with the Government. In ruling on Handley’s

motion for acquittal, the Court must view the evidence as a whole to

determine whether any rational juror could have found that the

Government proved the elements of the crime beyond a reasonable

doubt. See Moore, 425 F.3d at 1072. As discussed above, the jury’s

determination regarding the credibility of witnesses is entitled

deference, and the Court finds that the testimony of Rivera, Horton,

and the other two government witnesses are not unreliable as a matter

of law. See id. at 1073. The Court finds that the evidence against

Handley supports the jury’s verdict. While Handley might disagree

with the weight or credibility of the evidence, the Court finds that

the jury could reasonably have credited it. The jury heard

sufficient evidence that Handley was a member of the conspiracy.

The Court also finds that any variance between the facts alleged

in the Indictment and the evidence at trial does not require reversal

of Handley’s conviction. “A variance arises when the facts proved by

the government at trial differ from those alleged in the indictment.”

U.S. v. Avila, 557 F.3d 809, 815 (7th Cir., 2009). The Seventh
- 20 -

Circuit treats conspiracy variance claims “as an attack on the

sufficiency of the evidence supporting the jury’s finding that each

defendant was a member of the same conspiracy.” U.S. v. Rollins, 544

F.3d 820, 836 (7th Cir., 2008). Thus, in order to succeed on his

claim, Handley must show that the evidence at trial was insufficient

to support the jury’s finding that he was a member of the conspiracy

and that he was prejudiced by the variance. See id.

The Indictment charged Handley and his co-defendants with a

racketeering conspiracy. As discussed above, the Government provided

sufficient evidence that Handley was a member of the charged

conspiracy. The variance alleged by Handley relates to the

Government’s purported failure to prove his precise position in the

Insane Deuces. As an initial matter, based on the evidence during

trial, the Court finds that the jury could have determined that

Handley held a leadership position in the Insane Deuces. See Tr. at

428-29 (rank of Shorty Enforcer in 2002). Furthermore, the

Government was not required, as a matter of law, to prove Handley’s

exact rank in the gang in order to prove the charge of racketeering

conspiracy beyond a reasonable doubt. See Olson, 450 F.3d at 663-64.

The jury was entitled to assess the evidence of Handley’s alleged

rank along with all other evidence against him in deciding whether

the Government met its burden of proof. Accordingly, the Court

cannot say that the Government failed to prove the charges set forth

in the Indictment or that Handley was prejudiced by the purported

variance. See Rollins, 544 F.3d at 836.
- 21 -

For all of these reasons, the Court rejects Defendants’ motions

for acquittal based on sufficiency of the evidence.

III. MOTIONS FOR A NEW TRIAL

For various reasons, Defendants also move for a new trial

pursuant to Federal Rule of Criminal Procedure 33. 

A. Legal Standard

Upon a defendant’s motion, a court “may vacate any judgment and

grant a new trial if the interest of justice so requires.” FED. R.

CRIM. P. 33. The decision of whether to grant a new trial pursuant to

Rule 33 is within the court’s discretion. See U.S. v. Van Eyl, 468

F.3d 428, 436 (7th Cir., 2006). If the basis for seeking a new trial

is not due to newly discovered evidence, the court must determine if

a new trial is warranted because there exists “a reasonable

possibility that a trial error had a prejudicial effect upon the

jury’s verdict.” Id. The court may order a new trial where the

evidence “preponderate[s] heavily against the verdict, such that it

would be a miscarriage of justice to let the verdict stand.” U.S. v.

Reed, 875 F.2d 107, 113 (7th Cir., 1989). However, the Court’s power

bestowed “by Rule 33 is reserved only for the most extreme cases.”

U.S. v. Linwood, 142 F.3d 418, 422 (7th Cir., 1998).

B. Denial of Severance Motions

Several Defendants argue that the Court erred in denying their

pretrial and oral motions for severance and that they should be

granted new trials because they were unfairly prejudiced by the joint
- 22 -

trial. See, e.g., Crowder Mot. at 2; Rodriguez Mot. at 3-4; Lechuga

Mot. at 9; Handley Mot. at 5-8.

In order for Defendants to prevail on their argument that the

Court erred in denying their motions for severance, Defendants must

show prejudice. U.S. v. Warner, 498 F.3d 666, 700 (7th Cir., 2007)

(citing Zafiro v. U.S., 506 U.S. 534, 538-39 (1993)). “Limiting

instructions often will suffice to cure any risk of prejudice, and

tailoring relief from prejudice is left to the district court’s

discretion.” Warner, 498 F.3d at 700. In order to show actual

prejudice from the joint trial, a defendant must show that more than

that a separate trial would have given him a better opportunity for

acquittal; instead, he must show that he was deprived of his right to

a fair trial. U.S. v. Rollins, 301 F.3d 511, 518 (7th Cir., 2002).

Judge Castillo issued a comprehensive ruling on the issue of

severance in this case on November 21, 2007, explaining his reasons

for dividing the defendants into two groups for trial. Delatorre,

522 F.Supp.2d at 1044-59. In this opinion, Judge Castillo considered

the risks associated with a joint trial and potential prejudice

towards individual defendants, including antagonistic defenses,

massive and complex evidence, incriminating statements of codefendants, and the disparity in the weight of the evidence against

the defendants. Id. at 1046-47 (citing U.S. v. Clark, 989 F.2d 1490

(7th Cir., 1993)). Judge Castillo concluded that, “[w]hile there are

different degrees of culpability among the defendants, contrary to

their claims, the evidence against individual defendants is not
- 23 -

widely varying, such that they would be prejudiced by the spillover

effect from the evidence of allegations that do not apply to them.”

Id. Moreover, because each individual was charged with RICO

conspiracy, “the vast majority, if not all, of the evidence admitted

in the joint trial would have been admissible had the defendant been

tried alone.” Id. Because of the complexity of the case, the nature

of the charges brought by the Government, and the relevant case law,

this Court agrees with the substance of Judge Castillo’s prior

ruling.

In their motions, Defendants Crowder, Rodriguez, and Lechuga do

not specify any specific prejudice caused by their inclusion in the

joint trial. Defendant Hernandez argues that he was prejudiced by

joinder by the admission of incriminating post-arrest statements made

by other defendants. Hernandez Mot. at 5. Defendant Handley

contends that he was prejudiced by his joinder because of the

disparity between evidence against him and the evidence against other

defendants. See Handley Mot. at 5-8. According to Handley, while

the Government offered massive amounts of evidence against codefendants, such as evidence of violent crimes and regular

participation in drug dealing, the evidence against Handley differed

in type and quantity and was not connected with the evidence against

co-defendants. Handley argues that, after sitting through two months

of testimony about other defendants and seeing evidence of violent

crimes committed by others, the jury convicted Handley “for little

more than being a willing associate” of his co-defendants. Id. at 8.
- 24 -

The Court rejects Defendants’ arguments that they were

prejudiced by the joint trial such that the jury was unable to

consider the evidence against each Defendant and render a separate

verdict as to each individual. Defendants were charged with

participating in a RICO conspiracy, which, by it’s very nature,

involved multiple violent acts and drug trafficking. The Government

was required to prove each of these acts in order to prove the

existence of an enterprise, the pattern of racketeering activity, and

each defendant’s involvement in the conspiracy. See Olson, 450 F.3d

at 663-64. Just as it considered their prior motions for severance,

the Court now must consider their motions for a new trial in light of

the RICO charges. See U.S. v. Melton, 689 F.2d 679, 685 (7th Cir.,

1982) (“[U]nder RICO, defendants who committed certain acts of

racketeering may be ‘lumped together’ with a defendant who committed

certain other acts, since they are bound together by a purpose to

further the illicit affairs of the enterprise, and not by the purpose

of committing one single crime. Thus, the propriety of severance

must be viewed against this background.”). The Court further notes

that the mere fact that racketeering conspiracies involve spillover

evidence regarding predicate crimes committed by co-defendants does

not necessitate separate trials for each defendant because each

“member of the conspiracy is substantively culpable for other

conspirators’ acts within the scope of the conspiracy.” See U.S. v.

Hoover, 246 F.3d 1054, 1057-58 (7th Cir., 2001); U.S. v. Souffront,

338 F.3d 809, 831 (7th Cir., 2003).
- 25 -

The Court rejects Defendant Hernandez’s specific argument that

he was prejudiced by the admission of incriminating post-arrest

statements made by other Defendants. The mere fact that spillover

evidence about a co-defendant is admitted during a joint trial does

not guarantee a defendant a new trial, especially if the court takes

steps to guard against potential prejudice. See Souffront, 338 F.3d

at 831 (“Proper jury instructions are an adequate safeguard against

the risk of prejudice in the form of jury confusion, evidentiary

spillover and cumulation of evidence.”). Both during trial and in

its final instructions, the Court admonished the jury that it should

consider the testimony only as to the defendant who was alleged to

have made the statement. Tr. at 3639, 4833. The Court also

repeatedly instructed the jury to consider each count and its related

evidence separately. 

Even though the defendants are being tried

together, you must give each of them separate

consideration. In doing this, you must analyze

what the evidence shows about each defendant,

leaving out of consideration any evidence that

was admitted solely against some other defendant

or defendants. Each defendant is entitled to

have his case decided on the evidence and the

law that applies to that defendant.

Id. at 4838; see also id. at 4832 (advising the jury that the

Government bears the burden of proving the guilt of each defendant

beyond a reasonable doubt), 4865 (instructing the jury to “give

separate consideration both to each count and to each defendant” and

to “consider each count and the evidence relating to it separate and

apart from every other count”). The Court can presume that the jury
- 26 -

“attend[ed] closely [to] the particular language” of its

instructions, including that the jury should “consider each count and

the relating evidence separately.” U.S. v. Stokes, 211 F.3d 1039,

1043 (7th Cir., 2000). The Court, therefore, rejects that the

admission of these statements was erroneous, much less the argument

that the admission was so prejudicial as to require a new trial for

Hernandez.

As to Defendant Handley, the Court finds that it did not err in

denying his prior motions for severance based on quantity and type of

evidence alleged against him. See U.S. v. Goines, 988 F.2d 750, 759-

60 (7th Cir. 1993) (“The government, however, may prosecute

coconspirators on every level together, from the street dealer to

those who run the show. . . . Minor members 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 crimes were within the scope of the conspiracy they

joined, they will be held liable.”); see also Delatorre, 522

F.Supp.2d at 1048-49 (J. Castillo) (finding that Handley was properly

joined and denying his pretrial motion for severance). As discussed

in detail above, the Government offered sufficient evidence of

Handley’s membership in the Insane Deuces and his participation in

the racketeering conspiracy. The Court rejects Handley’s claims that

the evidence offered against him was so vastly different from that

offered against his co-defendants such that the jury was unable to

render a careful verdict as to him as an individual. 
- 27 -

The Court finds that Defendants have failed to show that the

Court’s denial of their motions for severance deprived them of a fair

trial; thus, the Court will not order a new trial on this basis. See

Rollins, 301 F.3d at 518. 

C. Additional Arguments for a New Trial

In their motions, Defendants assert various other arguments as

to why this Court should grant each a new trial. The Government

argues that the Court should deny each of these motions because the

grounds are either (1) waived because undeveloped and unsupported,

see U.S. v. Turcotte, 405 F.3d 515, 536 (7th Cir., 2005)

(“[U]nsupported and undeveloped arguments are waived.”); (2)

harmless, see Chapman v. California, 386 U.S. 18, 22-24 (1967);

Warner, 498 F.3d at 679; and/or (3) wholly without merit. See Govt.

Resp. at 17-22. The Court will address Defendants’ arguments in

turn.

1. Purported Jury Bias

Multiple Defendants argue that they are entitled to new trials

because of evident jury bias. See, e.g., Handley Mot. at 11; Lechuga

Mot. at 9. After reviewing the record in this case and the

applicable law, the Court fully considered and rejected this argument

in its February 10, 2009 Memorandum Opinion and Order. See Morales,

2009 WL 331518. A district court has wide discretion in determining

the seriousness of any potential juror bias, the credibility of

sources of allegations of bias, and whether the bias requires a
- 28 -

mistrial. See U.S. v. McClinton, 135 F.3d 1178, 1186 (7th Cir.,

1998). In this case, the Court has every reason to believe that the

jury was free from any external pressure and that the jurors

deliberated carefully and cooperatively to make determinations

regarding the complex issues of the case. Morales, 2009 WL 331518,

at *5.

2. Admission of Evidence Regarding Prior Incarcerations

a. Defendant Barbosa

Defendant Barbosa contends that he was denied a fair trial as

the result of the admission of references to his prior incarceration,

which he claims undermined the presumption of innocence and prevented

the jurors from being able to fairly evaluate the evidence. See

Barbosa Mot. at 1.

 A defendant’s prior crimes or bad acts may not, of course, be

admitted to show his propensity to commit the criminal act charged,

but may be admitted for other purposes, such as proof of motive,

intent, or absence of mistake. FED. R. EVID. 404(b); U.S. v. Yusufu,

63 F.3d 505, 511 (7th Cir., 1995) (“[R]ule 404(b) permits the

introduction of another crime, wrong, or act unless the sole purpose

for the offer is to establish the defendant’s propensity for a

crime.”). Evidence of prior convictions may also be admitted against

a testifying defendant in order to attack his credibility if the

court determines that the probative value of the evidence outweighs

its prejudicial effect. See FED. R. EVID. 609(a)(1); U.S. v. Toney,

27 F.3d 1245, 1253-54 (7th Cir., 1994). Courts consider four factors
- 29 -

to determine whether the evidence of other crimes or acts should be

admitted, namely whether: (1) the evidence is directed toward

proving a matter in issue other than the defendants’ propensity to

commit the crime charged; (2) the evidence shows that the other act

is similar and close enough in time to be relevant to the matter at

issue; (3) the evidence is sufficient to support a jury finding that

the defendant committed the similar act; and (4) the probative value

of the evidence is not substantially outweighed by the danger of

unfair prejudice. See Yusufu, 63 F.3d at 511. 

During trial, Barbosa elected to testify on his own behalf. See

Tr. at 3871-3917. During cross-examination, the Government produced

evidence, without objection, that Barbosa was convicted of a

shooting. Id. at 3902. When asked whether he had the opportunity to

sell drugs during an 11 or 12 year period during the 1990s and early

2000s, Barbosa admitted that he wanted to sell drugs but did not have

the opportunity because he “was in prison . . . for the majority of

that time.” Id. at 3909. Barbosa also testified that he only held

a gun for the Insane Deuces on one occasion, explaining that “[f]rom

‘93 to 2002” he was in prison. Id. at 3912. This testimony was all

admitted without objections from Barbosa’s attorney. Id. At the end

of the trial, the Court specifically cautioned the jury to consider

evidence of Barbosa’s convictions only in assessing the truthfulness

of his testimony. Tr. at 4833. The Court finds that the Government

properly used Barbosa’s prior convictions and incarcerations to

challenge his credibility as a witness. Toney, 27 F.3d at 1253-54.
- 30 -

Additionally, this evidence shed light on Barbosa’s participation in

the Insane Deuces during the relevant time period, and, in light of

the evidence against Barbosa, the probative value of this evidence

was not outweighed by any unfair prejudice. See Yusufu, 63 F.3d at

511. At no point did the Government argue or imply that these

convictions or incarcerations demonstrated Barbosa’s propensity to

commit the offenses charged. Id. For these reasons, the Court finds

that the admission of Barbosa’s prior incarcerations was proper.

Even if the admission of Barbosa’s prior incarcerations was

erroneous, this error would be harmless in light of the Government’s

evidence against him. Defendant Barbosa did not challenge his

convictions based on sufficiency of the evidence; however, if he had

filed this motion, the Court would have denied it summarily. Moore,

425 F.3d at 1072. The trial transcript is rife with evidence

supporting Barbosa’s membership in the Insane Deuces and active

participation in the racketeering conspiracy and narcotics

conspiracy. See, e.g., Tr. 444, 741-42, 755-6l, 766, 3905-17

(Barbosa’s cross-examination). 

b. Defendant Morales

Defendant Morales argues that he is entitled to a new trial by

virtue of the admission, over his objection and despite the fact that

he chose not to testify, of evidence of his prior incarceration for

narcotics-related offenses. 

During trial, Government witness Special Agent Mark Anton (“SA

Anton”) recounted portions of Morales’ post-arrest statement, during
- 31 -

which Morales admitted to being involved in narcotics trafficking

from 1989 to 1995. Tr. at 3696-3705. Morales now objects

specifically to SA Anton’s testimony that Morales had stated that he

“had gone in and out of the Illinois Department of Corrections for

narcotics related offenses” and “went to the Illinois Department of

Corrections in 1995 for delivery of cannabis.” Morales Mot. at 1

(quoting Tr. at 3699-3700). Morales contends that, because he did

not testify during trial, Federal Rules of Evidence 609(a)(1) and

404(a) prohibited the admission of evidence of his past crimes, and

justice requires a new trial even if his case was otherwise free from

error. Id. (citing U.S. v. Beeks, 224 F.3d 741 (8th Cir., 2000)

(ordering a new trial where government asked a witness about nontestifying defendant’s criminal history); U.S. v. Nemeth, 430 F.2d

704 (6th Cir., 1970) (reversing defendant’s conviction despite

cautionary instruction); U.S. v. Rudolph, 403 F.2d 805 (6th Cir.,

1968) (ordering a new trial despite cautionary instruction in a case

otherwise tried free from error)). 

The Government maintains that the purported error alleged by

Morales, if an error at all, was harmless. First, the Government

argues that admission of SA Anton’s testimony was not erroneous

because the fact that the Insane Deuces continued their gang-related

activities in prison was important evidence in the case. See, e.g.,

Tr. 722-23 (audio of Rodriguez discussing the Insane Deuces’

“defending [themselves] in the joint”). In the alternative, the

Government contends that, in light of overwhelming evidence against
- 32 -

Morales, the admission of testimony about his prior incarceration

surely did not affect the outcome of the trial and constituted

harmless error.

The testimony disputed here was not of other crimes or acts, but

of prior incarcerations, evidence that implies that Morales committed

other bad acts. See Yusufu, 63 F.3d at 511. During trial, the

Government did not suggest to the jury that the fact that Morales had

been incarcerated made it more likely that he committed the charged

crimes. Rather, the Government avers that the testimony was offered

to provide context for the manner in which the Insane Deuces operated

within the prison system. The trial did not dwell on Morales’ prior

incarcerations, and the Court instructed the jurors to consider of

the convictions of trial witnesses only to determine the truthfulness

of those witnesses’ testimonies. Tr. at 4835-36. Based in part on

the context of the admission of this evidence, the Court finds that

the admission was proper. This evidence was directed toward proving

the activity of the Insane Deuces in the prison system, rather than

Morales’ propensity to commit the crimes charged, and its probative

value on this issue was not substantially outweighed by the danger of

unfair prejudice. See Yusufu, 63 F.3d at 511; see also U.S. v.

Lashmett, 965 F.2d 179, 185 (7th Cir., 1992) (upholding admission of

evidence of defendant’s incarceration that was linked in time and

circumstances with the alleged crime such that it filled a

“chronological and conceptual void” in the government’s case and to
- 33 -

provide “the backdrop against which the alleged scheme was carried

out”).

Even if the admission of the testimony of Morales’ past

incarcerations was erroneous, in context of this long criminal trial

alleging wide-ranging conspiracy and numerous violent crimes, this

error was harmless. See U.S. v. Webb, 548 F.3d 547 (7th Cir., 2008).

Like Barbosa, Morales did not move for acquittal based on sufficiency

of the evidence. After reviewing the entire record, the Court finds

overwhelming evidence to support Morales’ convictions. Substantial

evidence established that Morales was a longtime member of the Insane

Deuces who moved through the ranks of the gang and became a Junior

Enforcer in July 2002. See Tr. at 426-27, 432, 437, 487, 609. The

Government also showed that Morales was fully aware of the gang’s

objectives to kill rival gang members and to sell drugs and that he

took an active role in carrying out these goals. See, e.g., id. at

767-68, 960, 988-94. In fact, while recounting Morales’ post-arrest

statement, SA Anton testified:

“[Morales] talked about how there is a standing

order with the Insane Deuces, both juniors and

shorties, that they were to shoot rival gang

members on sight, that was just a standard

order, that was - it was a general order out

there, and they did not need authorization from

any chain of command. 

However, he said we talked about missions, and

he said a mission would be a shooting or a

murder committed against a rival gang member,

but that would take an order, and he went

through the chain of command of how that command

would come down. He said it would come down

from the first seat junior to the second seat
- 34 -

junior, down to the junior enforcer, then he

would pass that order to the first seat shortie,

and that first seat shortie would make the

arrangements for a shortie to commit that.”

Id. at 3704. 

In light of the strength of the Government’s case against

Morales, the Court finds that, if the admission of evidence regarding

Morales’ prior incarceration for a narcotics related offense was

erroneous, this error was harmless and is not grounds for a new

trial. See Webb, 548 F.3d at 549. 

3. Evidence and Arguments Regarding Gang Affiliation

Defendant Barbosa contends that he was deprived of a fair trial

because of “repeated references and emphasis on” his gang

affiliation. Barbosa Mot. at 2. Similarly, Defendants Hernandez and

Rodriguez argue that the Government improperly argued that they

should be convicted based on their mere involvement in a street gang,

which Hernandez posits amounts to prohibited jury nullification.

Hernandez Mot. at 4-5; Rodriguez Mot. at 4.

Courts must carefully consider proposed evidence of gang

involvement in order to avoid undue prejudice to individual

defendants. U.S. v. Richmond, 222 F.3d 414, 417 (7th Cir., 2000).

Although evidence of gang affiliation may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, courts have “long recognized that gang membership has

probative value under appropriate circumstances,” particularly “in

cases where the interrelationship between people is a central issue.”
- 35 -

U.S. v. Thomas, 86 F.3d 647, 652 (7th Cir., 1996); see also Richmond,

222 F.3d at 417 (allowing evidence of gang involvement to show

complete story of the conspiracy and firearms trafficking); U.S. v.

McKinney, 954 F.2d 471, 479 (7th Cir., 1992) (allowing evidence of

how gang controlled and disciplined members to show context of murder

and conspiracy). 

In this case, both before and during trial, the Court carefully

considered the probative value and potential prejudicial effects of

evidence regarding the operations of the Insane Deuces and

Defendants’ participation in the gang. At this time, the Court

rejects Defendants’ arguments in light of the charges in this case,

the Government’s use of evidence regarding gang affiliation, and the

limiting instructions given to the jury. As a general matter, in

this RICO conspiracy prosecution, the Government was required to

prove beyond a reasonable doubt that the Insane Deuces constituted an

enterprise, and that Defendants conspired to conduct or participate

in the conduct of the affairs of the Insane Deuces through a pattern

of racketeering activity. See Olson, 450 F.3d at 663-64. Thus, the

Court finds that the Government’s evidence of the interworkings of

the Insane Deuces as an organized unit and it evidence of each

Defendant’s participation in the gang was appropriate. 

Additionally, the Court finds that the Government’s references

to the Insane Deuces gang in its opening and closing arguments were

not improper. In cases of alleged prosecutorial misconduct during

argument, a court must first decide “whether the prosecutor’s comment
- 36 -

considered by itself was improper and then examine the entire record

to see if the improper comment deprived the defendants of a fair

trial.” U.S. v. Andreas, 216 F.3d 645, 671 (7th Cir., 2000); see

also U.S. v. Velez, 46 F.3d 688, 691 (7th Cir., 1995). Here,

Hernandez alleges that the Government encouraged the jury to convict

Defendants based only on gang membership rather than on specific acts

or agreements. After reviewing the record, the Court finds no

evidence of improper arguments or implications or other misconduct.

Instead, the Government focused its arguments on explaining the

nature of the conspiracy and each Defendants’ role in furtherance of

the conspiracy’s objectives.

Finally, the Court specifically instructed the jury that

“[m]embership in a street gang alone is not a violation of the law”

and that each juror should confine himself or herself “to considering

the charges in this case . . . and not be emotionally swayed by the

use of the word gang or Insane Deuces.” Tr. at 4844. The Court has

no reason to doubt that the jury carefully considered this

instruction when reviewing the evidence against each defendant. See

Souffront, 338 F.3d at 831. Accordingly, the Court, rejects

Defendants’ contention that the Government’s evidence related to

their gang affiliation deprived them of a fair trial.

4. Statements with Racial Slurs

Defendant Barbosa argues that he was deprived of his right to a

fair trial because the Court refused to grant his request to redact

racial slurs from his statements. Barbosa Mot. at 2.
- 37 -

The Government’s case relied in large part on lengthy audio and

video recordings of gang meetings, drug exchanges, and other

interactions between Defendants, other gang members, and undercover

cooperators. These recordings are replete with profanities, racial

slurs, and other offensive and violent conversations. Specifically

with regards to Barbosa, in many cases, the recordings capture

Barbosa’s derogatory language related to his statements regarding his

violent attempts to kill rival gang members or Government

cooperators. See, e.g., Tr. 737 (“It ain’t no problem with me. F---

it. Family or not, he’s going to die.”); 742 (referring to Latin

Kings, “When I was there, bro, there was no Mother F’ing, there was

no ands, ifs, or buts. You see one, you do his ass, plain and

simple.”). 

The Court admitted these recordings in large part without

redactions. The recorded words of Defendants were highly probative

as to the conspiracy charges brought against them. In many cases,

requiring redactions could alter or render meaningless Defendants’

statements. The Court finds that, at worst, this decision

constitutes harmless error. See Chapman, 386 U.S. at 24; see also

U.S. v. Bright, 630 F.2d 804, 814 (5th Cir., 1980)(trial judge did

not err in refusing to redact tape-recorded conversation in which

defendants and FBI agents used racial slurs and other offensive

language). In light of the overwhelming evidence against Barbosa,

any prejudice created by the admission of his use of derogatory

racial language was harmless. 
- 38 -

5. Evidence of Drug Quantity Amounts

Defendant Rodriguez contends that the Court erred in admitting

evidence of drug quantity amounts by: (1) allowing the proof of drug

quantity amounts to be presented during the Phase II instructions,

rather than the Phase I instructions, and (2) indicating in the

Phase II instructions that Rodriguez was grouped together with his

co-defendants in the quantity amounts. Rodriguez argues that these

errors denied the jury the opportunity to decide whether he was

individually responsible for any drug amount. Rodriguez Mot. at 4-5.

During its Phase II instructions, the Court charged the jury

with determining whether particular defendants committed specific

offenses and the types and amounts of controlled substances involved

in the narcotics conspiracy as a whole. The findings during Phase II

pertained to each defendant’s potential sentencing range. With

regards to its findings regarding specific offenses alleged in the

racketeering conspiracy charge (Count I), the Court advised the jury

to “give separate consideration both to each allegation and to each

defendant.” Tr. at 5070. As to the narcotics conspiracy count

(Count IX), however, the jury was to determine the types and total

amount of drugs involved in the narcotics conspiracy as a whole. Id.

at 5079-80. These determinations were not to be “defendant specific”

because “[a]s members of a conspiracy, each defendant is accountable

for the acts of all other conspirators committed in furtherance of

that agreement.” Id. at 5080. The Court advised the jury that the

Government was “not required to show that any defendant was involved
- 39 -

in, or even had direct knowledge of, any particular drug transaction

or seizure.” Id.

Rodriguez cites no case law to support his argument that the

instructions regarding drug quantities were erroneous or violated his

Due Process rights. After reviewing the jury instructions given in

both Phase I and Phase II of this trial, the Court finds that its

instructions conformed to underlying substantive law. See U.S. v.

Acosta, 534 F.3d 574, 582 (7th Cir., 2008) (citing U.S.S.G.

§ 1B1.3(a)(1)(B)) (During sentencing, in cases of jointly undertaken

criminal activity, a court may consider “all reasonably foreseeable

acts and omissions of others in furtherance of the jointly undertaken

criminal activity,” including the drug sales of other conspiracy

members); U.S. v. Brumfield, 301 F.3d 724, 733 (7th Cir., 2002). The

Court, therefore, rejects Rodriguez’s argument.

6. Testimony from Government’s Ballistic Expert

Defendant Rodriguez contends that he was denied a fair trial

because the Court allowed the Government’s ballistic expert to opine

“to a reasonable degree of ballistic certainty,” rather it was than

“more likely than not” that certain bullets came from certain

weapons. See Rodriguez Mot. at 3 (citing U.S. v. Glynn, 578

F.Supp.2d 567 (S.D.N.Y., 2008)). Based on the law in this Circuit,

the Court affirms its initial ruling on this issue and finds that the

expert testimony regarding ballistics evidence in this case was not

inherently unreliable. See U.S. v. Mikos, 539 F.3d 706, 710-12 (7th

Cir., 2008); U.S. v. Conn, 297 F.3d 548, 555-57 (7th Cir., 2002); see
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also U.S. v. Hicks, 389 F.3d 514, 526 (5th Cir., 2004) (ballistics

testimony is generally accepted and admitted almost without question

in federal courts).

7. Defendant Rodriguez’s Conduct before 1999

Defendant Rodriguez also argues that the Court erred in denying

his prior motion to bar evidence regarding his violent conduct

occurring before 1999. Specifically, Rodriguez argues that he is

entitled to a new trial on the basis of unfair prejudice resulting

from the admission of testimony by Orlando Rivera about Rodriguez’s

involvement in the January 1995 gang-related shooting of a Latin King

gang member. Rodriguez Mot. at 2. The Court agrees with the

Government that Rodriguez’s argument is meritless. The Indictment in

this case described a racketeering conspiracy that began “at least

from in or about late 1994.” See R. 227 (Indictment Count I ¶ 9).

The Government’s evidence about Rodriguez’s participation in the 1995

shooting clearly was probative as to both the conspiracy and

Rodriguez’s participation in the conspiracy. 

8. Autopsy Photographs

Defendant Lechuga separately argues that he was denied a fair

trial by the admission into evidence of autopsy photographs. Lechuga

Mot. at 9. The Court considers this argument to be baseless. During

trial, the Court admitted into evidence various autopsy photographs

during the pathologists’ testimonies; these photographs, however,

were not displayed to the jury. Even if the Court had allowed these

photographs to be shown to the jury, Lechuga’s argument probably
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would fail. See Gonzales v. DeTella, 127 F.3d 619, 621-22 (7th Cir.,

1997) (holding that the admission of “grisly” pictures of dead drug

dealers at trial was not a due process violation); see also U.S. v.

Davidson, 122 F.3d 531, 538 (8th Cir., 1997) (permitting use of

“graphic” autopsy photographs in conjunction with a doctor’s

testimony). Here, the photographs were not admitted. Thus, the

Court cannot imagine the nature of the prejudice that could have

resulted to Lechuga. 

9. Other Purported Errors

Multiple Defendants contend that they are entitled to new trials

based on the Court’s purported errors in denying their prior motions.

For example, Crowder, Rodriguez, and Lechuga argue that the Court

erred in denying various motions before and during trial, including

motions to dismiss, motions in limine, a motion for a bench trial,

and objections during the Government’s opening and closing arguments.

See Crowder Mot. at 2-3; Rodriguez Mot. at 2-5; Lechuga Mot. at 9;

Handley Mot. at 12. Similarly, Crowder, Hernandez, and Lechuga

contend that the Court erred in denying their proposed jury

instructions. See Crowder Mot. at 2; Hernandez Mot. at 5; Lechuga

Mot. at 9. To support these arguments, Defendants fail to explain

how the Court erred in its prior rulings, much less why such

purported errors mandate a new trial. The Court agrees with the

Government’s position that these arguments are undeveloped and,

therefore, are waived. See Turcotte, 405 F.3d at 536. 
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10. Cumulative Effect of Errors

Finally, multiple Defendants contend that the “cumulative

effect” of the Court’s alleged errors necessitates a new trial. See,

e.g., Crowder Mot. at 3; Rodriguez Mot. at 5; Lechuga Mot. at 10;

Handley Mot. at 12. Having failed to successfully establish any

error on the basis of the above arguments, this argument necessarily

fails. Cf. U.S. v. Santos, 201 F.3d 953, 965 (7th Cir., 2000) (where

trial had contained an “avalanche of errors,” a court must “assess

the harm done by the errors considered in the aggregate.”)

III. CONCLUSION

Having carefully considered Defendants’ arguments, the

applicable law, and the entire record, the Court has determined that

Defendants’ post-trial motions discussed herein are without merit.

No Defendant has successfully demonstrated that there is insufficient

evidence to uphold his convictions, nor has any Defendant provided

evidence that prejudicial errors occurred requiring a new trial.

Therefore, for the reasons stated herein, Defendants’ Motions for

Acquittal or a New Trial are denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE: May 22, 2009