United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP P. SIMON, Chief District Judge.
A jury convicted Richard Reyes of a racketeering conspiracy, conspiracy to deal drugs, and murder in furtherance of the RICO conspiracy, all stemming from his membership in the Imperial Gangsters street gang. Reyes now moves for a judgment of acquittal or a new trial based on five areas that he identifies as creating reversible error in his trial. After careful consideration of each of Reyes's arguments I find that none of them provides a basis for overturning the jury's verdict, so the motion is DENIED.
Most of the facts of this case, the history of motions, and the detailed contents of the several-day trial aren't relevant to this motion, so I won't recount them here. But I will offer a brief overview to put some of the arguments into context. Defendant Richard Reyes is a member of the Imperial Gangsters (the "IGs"), a gang that was active in northwest Indiana from at least 2002 through 2010. The IGs bought and sold large quantities of cocaine and marijuana, conducted gang business, committed various armed robberies of drug stash houses, patrolled territory to which they laid claim, and fought with rival gangs in East Chicago, Gary, and elsewhere in northern Indiana. The indictment charged 14 separate murders and several attempted murders that were alleged to have been committed in furtherance of the RICO enterprise. In January 2014 a jury convicted Reyes of RICO conspiracy, a drug conspiracy and murder in furtherance of the enterprise.
Part of the conspiracy dealt with an ongoing feud between the IGs and the Latin Kings, a rival gang to the IGs. The two gangs regularly fought with one another, shot at one another and committed other acts of violence towards one another. See, e.g. , Tr. Vol.
3 at 658-59. One of the acts of violence that stemmed from the gang rivalry was the 2007 murder of a Latin King named Rene Alonzo. It is this murder for which the jury convicted Reyes.
The very abbreviated back story of the Alonzo murder is necessary in order to put Reyes's present motion into some context: On a late summer day in 2007, several gang members went to an East Chicago community event, the Mexican parade, and the Mexican festival that followed. At the festival, an IG-affiliate named Armando Ortega was punched by a man who had been standing with Rene Alonzo and some others. Ortega was understandably upset at being sucker punched, and yet he was the one removed from the Festival by the police. Tr. Vol. 4 at 924-29, 1022, 1044-47, 1049-50. Later that night, Alonzo's group went to a nearby bar. Tr. Vol. 3 at 860; Tr. Vol. 4 at 929. Ortega testified that Reyes picked him up that evening in Reyes's minivan, and set a course to that same bar seeking revenge against Alonzo. Reyes also mentioned that the attack was related to someone hassling some IG initiates (younger people hoping to join the gang, called "shorty folks"). Upon arriving outside the bar, Reyes used Ortega's gun to shoot and kill Alonzo who happened to be standing outside the bar at the time. Tr. Vol. 4 at 1058-69. Several witnesses identified Reyes as the shooter.
As it related to the murder charge, Reyes's primary defense at trial was that he had loaned his minivan to Ortega, and that it was Ortega - not Reyes - who committed the murder. Indeed, this is what Reyes told the police shortly after the murder, and it is what he also told Ortega at the time. Tr. Vol. 4 at 1109-10.
Some of the eyewitnesses to the murder of Alonzo were members of the Latin Kings gang. They didn't go to law enforcement after the shooting, and in fact kept the identity of the shooter close to the vest. The Latin Kings were planning on retaliating without the help of law enforcement. To that end, a group of people met shortly after the murder at a home in East Chicago. The group included Latin Kings Michael Comanse, Simon Rubio and Roberto Rodriguez, along with Comanse's friend Michael Morris. There were other people at the home as well, but the group didn't trust everyone there, so they kept their conversation private. Comanse told the others that Reyes was driving the car that had fired upon Alonzo. Tr. Vol. 6 at 1493-95. A police confidential informant was in the house during the meeting, but he was excluded from the conversation among Comanse, Rubio, Rodriguez and Morris. Some time later, that same CI called East Chicago Police Officer Terence Fife and reported that Alfredo Alvarez "is supposedly the one who shot and killed Alonzo." Tr. Vol. 6 at 1487, 1493-94. The CI didn't say he had witnessed the shooting, or exactly when, where, or from whom he had heard the rumor that Alvarez was the shooter. Tr. Vol. 6 at 1487. He was essentially passing along street gossip to Detective Fife. Fife reported the information to the lead investigator, Detective Washington, but never called the CI in to discuss the tip further. Tr. Vol. 6 at 1487, 1488-89. To cast some doubt on the CI's statement, the government called Comanse in rebuttal, and he testified that the CI hadn't been present during the shooting or the secret conversation. Tr. Vol. 6 at 1492-94, 1498-99.
Reyes's motion alleges five main places where he says his trial went wrong: (1) a series of claimed errors including an alleged Brady violation; (2) the denial of Reyes's intrial Rule 29 motion for acquittal before the case went to the jury, because Reyes argues there wasn't sufficient evidence to send the case to the jury; (3) the denial of Reyes's request to introduce his own hearsay statement that he made to the police shortly after the shooting; (4) the government's presentation of murders and gang violence as part of its racketeering case, which Reyes claims was cumulative and overly prejudicial; and (5) the jury deliberations, which Reyes alleges were biased by fear and an obliquely referenced possible gang-connection.
Federal Rules of Criminal Procedure 29 and 33 allow a criminal defendant to request that the Court acquit him because the evidence is so deficient on its face that no reasonable jury could convict him, and to request a new trial in the interests of justice, respectively. These are the vehicles for relief that Reyes is seeking to use through each of his various arguments.
Under Rule 29, the evidence must be viewed in the light most favorable to the government. After a jury has duly rendered its verdict, a challenge to the sufficiency of the evidence becomes even more difficult because the jury found the evidence sufficient. "In considering challenges to the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution, and then ask whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. We defer to the credibility determination of the jury and overturn a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Mohamed, No. 13-2368, 2014 U.S.App. LEXIS 13910, at *11 (7th Cir. July 22, 2014) (internal quotation marks, brackets and citations omitted).
Under Rule 33, the Court may vacate a judgment and order a new trial in the interests of justice. "When evaluating a Rule 33 motion for a new trial, our task is to determine whether the verdict is so contrary to the weight of evidence that a new trial is required in the interests of justice." United States v. Chambers, 642 F.3d 588, 592 (7th Cir. 2011) (citing United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999)).
Confusingly, Reyes has bunched unrelated arguments into the same heading in his brief. For clarity's sake this Order parallels the defendant's motion, and I will take up each of Reyes's arguments under the same headings that he has chosen and in the same order in which he raises them in his motion.
I. Alleged Brady Violation and Other Alleged Trial Errors
The Brady Claim
Reyes first claims that the government committed a violation of its duty to turn over exculpatory information under Brady v. Maryland, 373 U.S. 83, 87 (1963). Reyes made this argument at trial, the parties were heard (Tr. Vol. 1 at 15-26), I reviewed the relevant disclosures, and I issued an Order (DE 899) thoroughly addressing the issue and ultimately denying Reyes's motion to dismiss (DE 815) based on this alleged Brady violation. The alleged Brady violation and many of Reyes's other issues all relate to what Reyes sees as the undermining of his attempt to suggest to the jury that Armando Ortega actually committed the murder of Rene Alonzo, for which Reyes was ultimately convicted.
A Brady violation involves three elements: "(1) the evidence at issue is favorable to the accused because it is either exculpatory or impeaching; (2) the evidence has been suppressed by the government, either willfully or inadvertently; and (3) the suppressed evidence resulted in prejudice." United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In other words, overturning a jury verdict on the basis of a Brady violation is a high hurdle. The violation needs to have been so significant that there is a reasonable probability that it affected the verdict. Id. There is also no Brady violation if the defense wasn't deprived of the chance to use the evidence (i.e., if it was just delayed in using it), and if the evidence would have been available to the defense earlier via the defense's reasonable diligence. Id. (citing Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001), cert. denied, 535 U.S. 1078 (2002)).
If a potential Brady violation comes to light before the trial is over, when the defense still has time to use the evidence, the late disclosure won't provide a basis for relief. If the information requires investigation and development by the defense, then a continuance is appropriate. But when the defense finds out the information in time to use it, with or without a continuance, and chooses not to, the Seventh Circuit has been clear that no post-trial relief is available for the tardy disclosure. See, e.g., United States v. Walton, 217 F.3d 443, 450-51 (7th Cir. 2000) ("In spite of [Defendant's] claim that he was harmed by the government's delayed production, it is interesting to note that he failed to move for either a continuance, an adjournment or a mistrial. Thus, we are of the opinion that the government's delayed disclosure of the remaining phone records did not come so late as to deny [Defendant] of the evidence's effective use' at trial, had he chosen to do so.") (citing United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996); United States v. Williams, 738 F.2d 172, 178 (7th Cir. 1984)).
Reyes bases his Brady argument on the government's provision just before trial of two prior statements by government witness-to-be Ernesto Gonzalez - one from a 2008 police interview and the other from Gonzalez's 2012 Grand Jury testimony. (DE 946 at 2; DE 815 at 1-2.) The government had provided an unattributed summary of the contents of the Grand Jury testimony in February 2013 - a year before trial - and defense counsel never requested followup information. (DE 816 at 2-3.) Gonzalez's statement was that a guy named Alfredo Alvarez called Gonzalez for a ride the night Rene Alonzo was murdered. When Gonzalez arrived there were three people present: Alvarez, another person later identified as Armando Ortega (the same Ortega who was punched at the Mexican Day Festival and who testified that he was in the car when Reyes shot the victim); and an unidentified third person who was described as a tall, thin, Hispanic male. Reyes is Hispanic, but he is neither tall nor thin. Gonzalez testified before the Grand Jury that when he went to pick up Alvarez, Alvarez implicated himself in the shooting, saying something like "we got this n______, we hit him." Tr. Vol. 5 at 1290-91. (DE 899 at 2.)
As noted, several months before trial, the prosecutor, recognizing that Alvarez's statement was potentially exculpatory, provided a summary of the statement to Reyes's attorney. The summary of Gonzalez's testimony describing Alvarez's incriminating remark neglected to inform Reyes's counsel that the unidentified third person who was with Alvarez at the time the remark was made did not meet Reyes's description (i.e., that the man was tall and thin). (DE 899 at 2-3.) The government intended to call Gonzalez as a witness at trial, but he fled and could not be located. Shortly before trial, the prosecution decided to provide the entirety of Gonzalez's police statement and Grand Jury testimony to Reyes before trial. (DE 946 at 2; DE 815 at 1-2.) Reyes claimed to be surprised by the late disclosure, so I offered Reyes a continuance to investigate Gonzalez's statement. Reyes refused the offer. Tr. Vol. 1 at 18, 29-31.
Reyes hinges his argument on the point that the government knew for some time that it couldn't locate Gonzalez, so he wasn't going to testify, which Reyes claims transmutes the prior statements from Jencks material to Brady. (DE 946 at 3.) Reyes argues that the Gonzalez statements would have served to exculpate Reyes in the murder of Rene Alonzo, and inculpate government witnesses Alfredo Alvarez and Armando Ortega. (DE 946 at 2; DE 899 at 1-2.) Reyes further claims that Gonzalez's statements would have corroborated Reyes's own statement to the police shortly after the murder that Reyes had loaned his van to Ortega, and that is the reason it was at the scene of the shooting. (DE 946 at 2.)
Ultimately Reyes was permitted to introduce at trial Gonzalez's grand jury statement, as stipulated by the parties. Tr. Vol. 1 at 29-31; Tr. Vol. 5 at 1280. (DE 899 at 3.) Reyes's counsel was therefore permitted to argue that Reyes was not involved in the shooting of Alonzo because he didn't meet Gonzalez's description of the third man present after the murder. Tr. Vol. 6 at 1503, 1573-74. (DE 899 at 3.)
The question of the harm done to Reyes by the allegedly late disclosure is not a model of clarity. As best I can tell, Reyes is arguing that he depended on the government's listing of Gonzalez as a witness, so Reyes was counting on crossexamining Gonzalez until just before the trial, when Reyes first learned that Gonzalez could not be found. Reyes's argues that he was forced to choose between a speedy trial on the one hand and, on the other, taking a continuance to look for Gonzalez and maybe have his counsel prepare him to testify in his own defense (which Reyes says he might have considered knowing that Gonzalez's testimony supported Reyes's). (DE 946 at 5-7.)
Reyes cites to no authority for the proposition that this choice constitutes harm that warrants overturning a jury verdict, and this is unsurprising since the Seventh Circuit's has held that late information disclosure can be remedied by allowing the defense time to use the information, with the grant of a continuance if necessary. See, e.g., United States v. Walton, 217 F.3d 443, 450-51 (7th Cir. 2000) ("In spite of [Defendant's] claim that he was harmed by the government's delayed production, it is interesting to note that he failed to move for either a continuance, an adjournment or a mistrial. Thus, we are of the opinion that the government's delayed disclosure of the remaining phone records did not come so late as to deny [Defendant] of the evidence's effective use' at trial, had he chosen to do so.") (citing United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996); United States v. Williams, 738 F.2d 172, 178 (7th Cir. 1984)).
As I have noted, Reyes was offered a continuance, which he declined. DE 946 at 5; Tr. Vol. 1 at 29-31. Reyes can't succeed in a complaint that he didn't have enough time to deal with the late disclosure when the Court offered him the time to do just that.
Stepping back to look at the big picture, it is unclear whether Gonzalez's statement is even exculpatory, as it relates to who was present at a location well away from and well after the shooting. Ortega's testimony provided a reasonable explanation of why Reyes wasn't present when Gonzalez came by, and the jury was free to credit it. He said that Reyes's girlfriend picked up Reyes and another man after the group had already left the minivan at Alvarez's brother's house and Alvarez had taken the gun, and the group had switched vehicles. Tr. Vol. 4 at 1086-90. Several eyewitnesses to the shooting identified Reyes as the shooter. (DE 899 at 4.) Furthermore, the government informed Reyes of the substance of most of Gonzalez's testimony months before the trial, albeit unattributed and in summary form. Reyes never requested the witness's identity or any additional information about the statement. (DE 998 at 6; DE 816-1 at 3.) But even assuming that the Gonzalez information was exculpatory and not available to Reyes through the exercise of reasonable diligence, as I've just explained the late disclosure could have been remedied by a continuance. But Reyes and his counsel chose to proceed with the trial.
In sum, there was no Brady violation because Reyes received the exculpatory evidence prior to trial and, in any event, if he felt sandbagged by the "late" disclosure he was given an opportunity for a continuance to investigate the matter further. The fact that he refused the continuance offer was his own choice.
Reyes next argues that the government introduced improper rebuttal evidence. "The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of the evidence offered by an adverse party.'" United States v. Grintjes, 237 F.3d 876, 879 (7th Cir. 2001) (quoting United States v. Papia, 560 F.2d 827, 848 (7th Cir. 1977)). A trial court has significant discretion in deciding what rebuttal evidence to admit. Id. ; see also, United States v. Goodwin, 770 F.2d 631, 638 (7th Cir. 1985).
This issues deals with the testimony of Detective Terry Fife, and specifically a hearsay statement that Reyes was permitted to elicit from Fife. Here is how the issue developed at trial: During his case-in-chief, Reyes called Detective Fife to the stand and asked him about what a confidential informant had told Fife shortly after the Rene Alonzo murder. According to Fife, the CI told him that word on the street was that Armando Ortega and Alfredo Alvarez were responsible for shooting Rene Alonzo. Tr. Vol. 5 at 1383-86. This hearsay was admitted, over strenuous objection from the government. But I admitted the hearsay statement not for the truth of the matter asserted, but to show what if anything the information prompted the police to do. Tr. Vol. 5 at 1384. See, e.g., Jewett v. Anders, 521 F.3d 818, 825 n.5 (7th Cir. 2008); United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993). Fife testified that he passed the information from his CI along to Detective Washington, the officer responsible for investigating the Alonzo murder.
In its rebuttal case, the government sought to flesh out some of the details of the CI's statements to Fife. To that end, the government elicited testimony to the effect that the CI had told Fife he didn't have personal knowledge of the events, and Fife never took the information further than documenting the tip and passing it on to the lead investigator on the case. Tr. Vol. 6 at 1486-88. The government also re-called Michael Comanse to rebut the CI's hearsay statements. Comanse testified that the CI wasn't present at Rene Alonzo's shooting, nor could the CI have had knowledge of the shooter based on the Latin King meeting that took place after the shooting. Tr. Vol. 6 at 1492-94. With this testimony the government sought to show that the CI really didn't know who was responsible for shooting Alonzo and that the CI was just passing along street gossip to Detective Fife.
Reyes appears to object to how thoroughly the CI hearsay testimony was rebutted, arguing that it denied him the opportunity to present a defense. (DE 946 at 10.) Reyes argues that Fife's additional testimony was somehow improper because it didn't "address what was actually in [the CI's] mind or personal knowledge." (DE 946 at 9.) With respect to Comanse, Reyes argues that he was a member of a rival gang, the Latin Kings, so his testimony was unreliable. He notes that, before calling Comanse, the government had wanted to re-call Simon Rubio, who Comanse would later testify was part of the Latin King conversation about Reyes driving the minivan. (DE 946 at 8-9.) Rubio wasn't permitted to testify at that later point because he had remained in the courtroom despite the Court's order for the exclusion of witnesses. (DE 946 at 9.) Reyes attempts to make hay of the fact that the government then immediately decided to call Comanse, instead, to testify to the same private conversation about Reyes driving the minivan. ( Id. ) Reyes suggests that the only way the government could know how its own witnesses would testify is if they'd coached witnesses or expected witnesses to coach one another. (DE 946 at 10.)
I disagree with Reyes. I allowed Reyes to ask Fife about the CI's statements, which were hearsay. But this opened the door to allowing the government to rebut the hearsay statement by exploring the hearsay declarant's credibility. An attempt to impeach the hearsay declarant's testimony was well within the government's rights. See Federal Rule of Evidence 806. The government simply asked Fife to describe the CI's tip in more detail to demonstrate that what the CI was really doing was merely passing along street gossip; he really did not have firsthand evidence of who was responsible for the shooting. This rebuttal evidence was entirely proper. As for Comanse's rebuttal testimony, it was for the jury to decide its reliability. I don't find it suspicious that the government had an idea of what its witnesses would say, or that participants in a conversation would remember the conversation similarly; the jury was free to interpret the testimony this way.
Shifting the Burden of Proof in the Closing Argument
The final argument that Reyes makes in the first section of his brief relates to what happened during closing argument. Reyes claims that the government improperly shifted the burden of proof to him during its rebuttal argument. Here's how the issue evolved: During closing argument, counsel for Reyes repeatedly argued and made reference to the fact that certain key witnesses were not called to the stand by the government. See Tr. Vol. 6 at 1558, 1566, 1571. Here's a sampling: Reyes's counsel asked, "Where is Alfredo Alvarez? Heard a lot about the guy. Where is Alfredo Alvarez? They didn't bring him in here. We'd like to have heard from him." Tr. Vol. 6 at 1558. A little while later counsel returned to that same theme: "Alfredo Alvarez - where is he again? Why not bring him in here? Where is he?" Tr. Vol. 6 at 1571.
In its rebuttal argument the prosecutor briefly responded: "Mr. Friedlander [the defense counsel] asked a number of questions, where is Cooch [Alvarez]? Where is Ernesto? He has the same subpoena powers that we have. He has no burden, of course, to put on witnesses; but if he thought those witnesses would help you decide, he could bring them here just like I can." Tr. Vol. 6 at 1587. Reyes did not object to this statement when it was made. But he now claims the prosecutor's comment was improper.
Post-trial review is limited where the defendant did not object to the conduct during the trial. In such a case, the defendant must establish plain error, which means that he didn't get a fair trial and the conduct changed the verdict. United States v. Wright, 651 F.3d 764, 774 (7th Cir. 2011) (defendant "also argues that remarks and conduct of the government were improper and denied him a fair trial. [Defendant], however, did not object to any of the arguments he now raises on appeal, and so our review is only for plain error, which requires him to establish not only that the remarks denied him a fair trial, but also that the outcome of the proceedings would have been different absent the remarks." (quotation marks and citation omitted.)). In the context of missing witness comments, "where the defendant himself has broached the subject of a missing witness by asking the jury to penalize the government for its failure to produce the witness, a prosecutor's argument to the effect that the defendant has the opportunity to call witnesses is proper." United States v. Villegas, 655 F.3d 662, 672 (7th Cir. 2011) (citing United States v. King, 150 F.3d 644, 649 (7th Cir. 1998); United States v. Sblendorio, 830 F.2d 1382, 1393 (7th Cir. 1987) (finding that the prosecutor's observation that the defense could produce a certain witness or witnesses if it wished neither alters the burden of proof nor penalizes the exercise of a constitutional right, rather, the argument merely conveys information that "[t]he jury is entitled to know")).
In general, allegations of prosecutorial misconduct are analyzed to determine whether they are so egregious that the defendant was deprived of a fair trial. Such allegations are reviewed in the context of the entire trial, especially whether the alleged comments or actions unfairly suggested guilt, whether the prosecutor's behavior was isolated or extensive, whether the evidence of guilt was overwhelming, and what curative instructions were given. See Rose v. Duckworth, 769 F.2d 402, 405 (7th Cir. 1985); see also United States v. Goodapple, 958 F.2d 1402, 1409 (7th Cir. 1992) (first we look at whether the remark was proper, if it was improper we look at whether, in the context of the entire trial, defendant was deprived of a fair trial).
The government's statement was arguably improper. Any impropriety wasn't due to the words of the statement, but to the facts underlying them. The government is permitted to respond to the defense's comments regarding absent witnesses by informing the jury that the defense has subpoena power, too. But the prosecution can't mislead the jury. In this case, all of the lawyers well knew that Alvarez was unavailable because he had evidently fled. So the government's comments were arguably misleading because they suggested that both sides chose not to call the witness, which wasn't the case. But in fairness, the government's comments were made in response to the defense's multiple closing argument statements suggesting that the government could have called Alvarez, but had chosen not to. Yet the defense counsel also well knew that the Alvarez was in fact unavailable. So in context, the government was only responding to Reyes's own misleading comments. In any event, there was no objection from defense counsel, and this wasn't a point that the government belabored, but a fleeting reference made during substantial closing arguments delivered at the end of a substantial trial. In the context of a several-day trial where eyewitnesses testified that Reyes drove the minivan and fired the gun that killed Rene Alonzo, it is highly unlikely that the prosecution's comments affected the verdict.
In sum, I don't find that it was plain error to allow the prosecution's statement during closing argument to stand without corrective action, given its briefness and the lack of objection.
II. Denial of the Rule 29 Motion
Reyes's second claim is less complicated. He argues that the Court should have acquitted him when he requested it during the trial. (DE 946 at 11; DE 829.) He is basically asking for reconsideration of my decision not to grant him an acquittal during his trial. I considered his motion during the trial, after the close of evidence, and denied it. Tr. Vol. 6 at 1502-08. My assessment of this argument remains the same now: there was ample evidence to send the case to the jury, and no basis for the Court to overturn the jury's verdict based on a lack of evidence as a matter of law.
Before considering the sufficiency of the evidence claim, it's necessary to pause and address an argument embedded in Reyes's second claim. He says that he is entitled to relief under Federal Rule of Criminal Procedure 34. Rule 34 requires the Court to arrest judgment if the indictment doesn't charge an offense at all, or doesn't charge an offense over which the Court has jurisdiction. Reyes mentions this Rule in the introduction to his motion, but doesn't explain how it could possibly apply, and without some explanation I fail to see how it could possibly apply because the charged crimes fall within ...