United States v. Benabe

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

B OLIVAR B ENABE, JULIAN S ALAZAR, JUAN JUAREZ,
C HRISTIAN G UZMAN, S TEPHEN S USINKA, and
F ERNANDO D ELATORRE,
Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:03-cr-00090—Ruben Castillo, Judge.

A RGUED M ARCH 28, 2011—D ECIDED A UGUST 18, 2011

Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. The Insane Deuces was a
street gang engaged in a long-running conspiracy in-
volving deadly violence and drug distribution in
northern Illinois. In 2006, a grand jury indicted sixteen
2 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

individuals involved in the gang for conspiracy under
the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962(d), and related charges of
murder, conspiracy to commit murder, assault with a
dangerous weapon, drug distribution, conspiracy to
distribute drugs, and unlawful possession of firearms.
One defendant named in the indictment was not appre-
hended and remains a fugitive. Another pled guilty.
The case against the other fourteen was severed into
two trials. The appeals addressed in this opinion stem
from the first trial. A second set of appeals stems from
the second trial. Our opinion in that case, also released
today, is reported as United States v. Morales, et al., No. 09-
2863, ___ F.3d ___ (7th Cir. 2011).
Seven defendants were tried in the first trial. Six were
found guilty and appeal their convictions.1 They are
Bolivar Benabe, Julian Salazar, Juan Juarez, Christian
Guzman, Stephen Susinka, and Fernando Delatorre. The
trial of these appellants began on February 6, 2008, and
ran through the return of the special RICO verdicts and
forfeiture verdicts on April 23, 2008. Over the course
of several weeks the government presented and the
jury heard evidence that in 2002 alone, the Insane
Deuces committed four murders, eleven attempted mur-

1
As to the seventh, Harold Crowder, the jury reached no
verdict in the first trial. He was retried with the second group
of defendants and was found guilty. His appeal is part of
the parallel Morales opinion.
Nos. 09-1190, 09-1224, 09-1225, 3
09-1226, 09-1227 & 09-1251

ders, two solicitations to commit murder, and multiple
other shootings. The evidence was presented through
eyewitness testimony, the testimony of cooperating wit-
nesses, recorded co-conspirator statements, and ballistics
evidence. Eyewitnesses who were not in the gang identi-
fied the shooters in three murders and/or attempted
murders proven at trial, including the identification of
defendant Guzman as the shooter in a July 18, 2002 at-
tempted murder and the August 11, 2002 murder of
David Lazcano. Five former Insane Deuces testified
against the defendants, describing for the jury the gang’s
structure, leadership, and membership, its rules and
regulations, and providing horrific details of the murders
and attempted murders committed by the Insane Deuces.
Through search warrants, arrests, or cooperation, the
government recovered firearms used in eleven of the
sixteen murders and attempted murders presented to
the jury at trial, directly linking the Insane Deuces to
those shootings.
All six of the defendants were convicted of RICO con-
spiracy, 18 U.S.C. § 1962(d) (Count 1 of the Second
Superceding Indictment). Delatorre and Guzman were
convicted of murder in aid of racketeering activity, 18
U.S.C. § 1959(a)(1) (Count 2), and Juarez and Salazar were
convicted of conspiracy to commit murder in aid of
racketeering, 18 U.S.C. § 1959(a)(5) (Counts 3 (Salazar) and
4 (Juarez and Salazar)). Delatorre, Benabe, Juarez, and
Salazar were convicted of conspiracy to distribute con-
4 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

trolled substances, 21 U.S.C. § 846 (Count 9).2 Delatorre
was also convicted of assault with a dangerous weapon
in aid of racketeering activity, 18 U.S.C. § 1959(a)(3)
(Count 5),3 murder in aid of racketeering activity, 18
U.S.C. § 1959(a)(1) (Counts 6 and 7), distribution of
crack cocaine, 21 U.S.C. § 841(a)(1) (Count 12), and posses-
sion of a firearm with an obliterated serial number,
18 U.S.C. § 922(k) (Count 13). After a second round of
deliberations, the jury returned a special RICO verdict
assigning responsibility for four murders that were
charged in Paragraphs 15, 16, 19, and 20 of Count 1. The
jury also returned a finding with respect to Delatorre
and Benabe that eighteen firearms be forfeited.4
Following denial of the defendants’ post-trial motions,
the court sentenced Delatorre, Benabe, Juarez, Salazar
and Guzman to life imprisonment. Susinka was sen-
tenced to twenty years in prison. All defendants appeal
their convictions; Susinka also appeals his sentence.
The defendants’ appeals present a host of issues.
We address many of those issues in a separate unpub-

2
Susinka also was charged under Count 9. The jury hung
on that charge, which was then dismissed against him.
3
Guzman was also charged in Count 5 but was found not
guilty.
4
The forfeiture allegation in the indictment was brought
under 21 U.S.C. § 853 for firearms that were used as a part of the
Count 9 drug conspiracy. It also applied to Juarez and Salazar,
who waived a jury finding with respect to that allegation.
Nos. 09-1190, 09-1224, 09-1225, 5
09-1226, 09-1227 & 09-1251

lished order issued today.5 We address in this opinion
several issues for which a published opinion may be
useful: (1) the district court’s decision to try the case by
an anonymous jury; (2) the district court’s decision to
remove defendants Delatorre and Benabe from the court-
room upon their refusal to assure the court on the eve of
trial that they would refrain from inappropriate outbursts
in the presence of the jury; (3) the district court’s denial
of a motion to suppress in-court and out-of-court eyewit-
ness identifications of Guzman as the shooter in a gang
murder; (4) the district court’s jury instructions; (5) the
district judge’s decision to provide the jury with partial
transcripts during its deliberations; and (6) alleged juror
“misconduct” that came to light after the verdict was
rendered. Before addressing these questions we provide
an overview of the Aurora Insane Deuces gang and
the relevant facts. This summary, which only scratches
the surface of the evidence presented to the jury, is re-
counted here in the light most favorable to the verdicts.
Additional facts are available in our companion case,
Morales, No. 09-2863, slip op. at 2-14, ___ F.3d at ___.

The Aurora “Insane Deuces”
The Aurora faction of the Insane Deuces was the focus
of this case. Its goal was to eliminate rival gangs and

5
Our order rejects all the defendants’ arguments except for
one, related to Susinka’s term of supervised release. We
modify his sentence accordingly, but otherwise affirm the
district court in all respects.
6 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

take over the streets of Aurora. Non-Insane Deuces were
a threat to this goal. As defendant Salazar explained at
a gang meeting in the summer of 2002, “They’re a
threat because they’re a threat to our growth, our growth,
because all of those neutron kids growin’ up, they’re
given’ them another option to turn to somethin’ else. . . .
They should only have one choice. . . . Either if you gonna
be that side . . . you gonna be on this side, you ain’t got
but one choice. Turn Deuce. They stuntin’ our growth.”
The gang was organized into three levels of manpower:
“Seniors,” “Juniors” and “Shorties.” The Juniors were the
active gang members most responsible for day-to-day
operations. Seniors were older members of the gang who
were less active but advised the Juniors. The Shorties were
the youngest members of the gang, often juveniles, whose
job it was to carry out the orders of the Juniors. Juniors
were led by members who served in roles of “Junior
Governor,” “Lieutenant Governor,” and “Enforcer,” and
similarly the Shorties were led internally by their own
“First Seat,” “Second Seat,” and “Enforcer.” Individual
gang members advanced within the gang by committing
acts of violence, such as shooting members of rival gangs
on “missions.” The gang conducted meetings for Juniors
and Shorties, called “juntas,” at which the gang’s business
was discussed: missions and leadership roles were as-
signed, conflicts with rival gangs were reviewed, violence
against rival gangs was planned, and intelligence was
shared. The attending members also discussed dealing
drugs, efforts to acquire firearms, the appropriate ap-
portionment of dues and fines among the members, and
Nos. 09-1190, 09-1224, 09-1225, 7
09-1226, 09-1227 & 09-1251

how to support members who had been jailed. Insane
Deuces in jail continued to enjoy the privileges of gang
membership and could expect support and protection
from their fellow members.
The gang had written rules, called “leyas,” and also
abided by other, unwritten rules. Members were
required to follow orders and report “missions” to their
superiors. Members were punished, or “violated,” for
disobeying a rule. “Violations” ranged from assignments
to additional missions to being beaten to being killed.
Cooperation with law enforcement warranted the worst
violation. The gang also maintained a “caja,” which
provided members with access to a common supply of
drugs, guns, and money. Members took drugs from the
caja, sold them, and then returned their cost and some
profit to the caja. This profit went toward the purchase
of additional firearms and drugs, and for bail money.
Members of the Insane Deuces also could benefit from
the “free enterprise” rule, which permitted members to
deal drugs on the side so long as they shared their indi-
vidual profits with the gang for its benefit.
In May 2002, in a coup that would lead to the indict-
ments in this case, an Aurora police detective recruited
Orlando Rivera as a confidential source. At the time,
Rivera was a Junior Enforcer of the Aurora Insane
Deuces. Under the supervision of local police and
federal agents, Rivera provided information about the
gang’s activities and began making recorded purchases
of firearms and cocaine from the Insane Deuces and
8 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

their associates. In return for his cooperation with and
assistance to law enforcement, Rivera was given total
immunity.
Rivera also attended and recorded gang meetings and
one-on-one conversations he had with members after
shootings, including murders. In these recordings, gang
members planned violent acts against rival gangs (in-
cluding murder). They discussed their ability to make
money through drug sales fronted by the caja, as well
as the need for more firearms. They also discussed the
gang’s ultimate goal of taking over Aurora’s streets, the
gang’s organizational structure, and its system of dues
and fines. These recordings featured prominently in the
trial and no doubt left an indelible impression on the
jury. Over Rivera’s six days of testimony, the jury heard
recordings he had made of gang meetings and activities
on approximately 22 dates.
Through Rivera’s secret recordings, the jury heard the
defendants’ own statements about their activities. For
example, in a recorded meeting on August 22, 2002,
Delatorre confirmed that the gang was involved in the
July 18, 2002 shooting of a rival Latin King. He also ad-
mitted to being the driver in the Lazcano murder, giving
specific details, including the car he drove and the type
of gun used. The jury heard a recorded conversation
between Rivera and Delatorre on October 19, 2002,
when the two met to dispose of two firearms. Delatorre
told Rivera in the recording that he and other Insane
Deuces killed David Morales on October 16, 2002. Law
Nos. 09-1190, 09-1224, 09-1225, 9
09-1226, 09-1227 & 09-1251

enforcement recovered the firearms. Ballistics evidence
matched one gun to the Morales murder and the other
to two shootings — a September 19, 2002 attempted
murder in which a bystander was shot in the back, and
a September 28, 2002 attempted murder in which
another bystander, a 14-year-old boy, was shot in the
back and paralyzed. Other Insane Deuces admitted on
tape to being involved in three murders and three at-
tempted murders, and Salazar was recorded soliciting
the commission of murder in August 2002.

Issues Presented on Appeal
I. Anonymous Jury
Ordinarily, parties have available to them the names,
addresses, occupations, and locations of employment of
potential jurors. They can then use this information to
question potential jurors to discern possible biases. Unfor-
tunately, in some trials, potential jurors are at high risk
of harassment, intimidation, or other unwelcome and
disruptive influences. To protect potential jurors and
their families, the trial court may decide to withhold
identifying information from the parties, although the
decision cannot be taken lightly. “An anonymous jury
raises the specter that the defendant is a dangerous
person from whom the jurors must be protected, thereby
implicating the defendant’s constitutional right to a
presumption of innocence.” United States v. Mansoori,
304 F.3d 635, 650 (7th Cir. 2002), quoting United
States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994). “Juror
10 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

anonymity also deprives the defendant of informa-
tion that might help him to make appropriate chal-
lenges — in particular, peremptory challenges — during
jury selection.” Mansoori, 304 F.3d at 650, citing United
States v. DiDomenico, 78 F.3d 294, 301 (7th Cir. 1996);
United States v. Edmond, 52 F.3d 1080, 1090 (D.C. Cir. 1995).
Although empaneling an anonymous jury is an extreme
measure, it may be warranted where “there is a strong
reason to believe the jury needs protection.” United States
v. Crockett, 979 F.2d 1204, 1215 (7th Cir. 1992). The trial
court therefore must weigh the defendant’s and the pub-
lic’s interest in preserving the presumption of innocence
and in conducting a useful voir dire against the dual
interests of the jurors’ security and their impartiality.
Mansoori, 304 F.3d at 650.
Here, the government argued that anonymity was
necessary to protect the safety of the jurors. The
defendants objected. The defendants argued that
potential jurors likely would be unwilling to be suf-
ficiently forthcoming in voir dire if anonymous, and
that an anonymous jury would be unduly alarmed
about possible threats to their safety, prejudicing the
defendants. After noting that the defendants were
accused of being involved in organized crime and faced
life sentences if convicted, Judge Castillo granted the
government’s motion. He further concluded that “the
government has alleged with sufficient particularity
that the defendants have a history of intimidating wit-
nesses or otherwise obstructing justice such that they
may do so in connection with this trial.” In support of
Nos. 09-1190, 09-1224, 09-1225, 11
09-1226, 09-1227 & 09-1251

this finding, Judge Castillo relied heavily on the gang’s
history of retaliation and intimidation of witnesses and
cooperators. He noted that Salazar and Juarez, together
with severed co-defendants Mariano Morales and
Arturo Barbosa, were accused of conspiring to murder
an individual who they believed was cooperating with
law enforcement. Rivera had surreptitiously recorded
these defendants arranging the murder of the suspected
informant in October and November 2002. Also, severed
co-defendant Steven Perez was accused of firing 29
rounds into Rivera’s parents’ house, injuring his father,
after the gang learned of Rivera’s cooperation.6 Each of
these incidents occurred more than four years before the
trial began, but because one of the charged defendants
was still at large and other members of the gang had not
been charged and were free, the judge concluded that
the gang had the means to intimidate jurors, a history of
such intimidation, and that under these circumstances,
juror anonymity was warranted.
On appeal, we review the district court’s decision to
empanel an anonymous jury for abuse of discretion.
Mansoori, 304 F.3d at 650. We find that there was no
abuse of discretion here. Judge Castillo weighed the
appropriate factors, which, as Mansoori instructs,
included the defendants’ involvement in organized
crime, the Insane Deuces’ capacity to harm jurors, the

6
The jury in the second trial was unable to reach a verdict on
the charges against Perez, and the judge declared a mistrial.
12 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

Insane Deuces’ previous attempts to interfere with
the judicial process, the severity of the sentences the de-
fendants faced if convicted, and whether publicity sur-
rounding the case presented the prospect that the ju-
rors’ names could become public and expose them to
intimidation or harassment. Id. at 650-51. An anonymous
jury is not appropriate in every criminal trial involving
organized crime. “Something more” than the organized-
crime label is necessary to justify juror anonymity, such
as “a demonstrable history or likelihood of obstruc-
tion of justice” by the defendants or a “showing that
trial evidence will depict a pattern of violence by the
defendant and his associates such as would cause a juror
to reasonably fear for his own safety.” Mansoori, 304 F.3d
at 651, quoting Crockett, 979 F.2d at 1216. The record in
this case fully supports Judge Castillo’s finding that the
Insane Deuces had a history of witness intimidation,
that the gang retained the capacity to strike at members
of the jury, and that there was a real risk of juror intimida-
tion. In other words, this case had the requisite “some-
thing more.” The district court properly exercised its
discretion to keep this jury anonymous, and we affirm
its decision.

II. Absence of Delatorre and Benabe from the Courtroom
On February 5, 2008, the day before jury selection
began, the district judge ordered that defendants
Delatorre and Benabe would not be permitted to attend
the trial unless and until they assured the judge that
Nos. 09-1190, 09-1224, 09-1225, 13
09-1226, 09-1227 & 09-1251

they would not disrupt the trial. Both refused. The
judge made arrangements for them to watch a video
feed of the trial from their detention center, though
neither did. The judge also made it clear that they
could return to court to attend their trial whenever
they were willing to promise to behave. Neither ever
did so.
Joined by each of their co-defendants, Delatorre and
Benabe argue on appeal that the judge’s handling
of their behavior violated their rights under the Sixth
Amendment and Federal Rule of Criminal Procedure 43.
As we explain below, the record shows that Judge
Castillo was patient and judicious in dealing with these
defendants’ persistent attempts to disrupt their prosecu-
tion. He took the extraordinary step of barring them
from attending trial only after it was clear that they
intended to disrupt the trial and undermine the ability
of the other defendants and the government to have a
fair trial. Both defendants effectively consented to their
removal by their conduct, so we find no constitutional
error. We find that the district court erred under Rule 43
by barring the defendants from trial on the day before
trial rather than on the first morning of trial, but we
find that the error in timing was harmless.

A. Disruptions by Delatorre and Benabe
Removal of the accused from his criminal trial will
rarely be justified, but it was justified by this record,
which we describe in detail to show the judge’s efforts
14 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

to ensure that the trial would be fair for all parties
before removing these two defendants from the court-
room. Delatorre played the leading role. He was repre-
sented by two attorneys, but on October 16, 2007, he
filed the first of more than twenty pro se documents
describing himself as “Sovereign Secured Party Creditor
Fernando Delatorre.” In these papers, he challenged
the legitimacy of the United States government, its juris-
diction over him, and the validity of the charges brought
against him. He claimed to be “sovereign” and immune
from prosecution. Benabe later joined Delatorre in this
effort to thwart the proceedings by his own assertions
of “sovereignty” and immunity.
On October 17, 2007, the court heard argument on
Delatorre’s motion to suppress evidence. Delatorre ap-
peared but refused to participate because his attorneys
“refused to represent me as a flesh-and-blood human
being.” The next day, giving Delatorre the benefit of the
doubt, the court ordered Delatorre to undergo a compe-
tency evaluation.
At a status hearing held on October 31, 2007, Delatorre
referred to himself as “a secured party creditor . . . third-
party intervenor.” He claimed that he was not the
person named in the indictment because his name was
not spelled with all capital letters (as it was in the in-
dictment). He demanded to know of the prosecutor
“what legal definition exactly, legal definition of the
term person are you applying to me for the purposes of
these proceedings?” At the court’s next status hearing,
Nos. 09-1190, 09-1224, 09-1225, 15
09-1226, 09-1227 & 09-1251

Delatorre repeated his claim that he was “a born
sovereign flesh-and-blood human being and a secured
party creditor.” When the court announced that there
would be a hearing on the competency evaluation,
Delatorre interrupted: “I need to address these various
issues right here and now.” The court stated the hearing
was concluded. Undeterred, Delatorre continued: “Let
the record reflect the Court is not allowing me to
address my various issues and is intending to punish
me for exercising my rights as a sovereign secured
party creditor.” The court then ended the hearing.
The next hearing of note was on January 11, 2008.
Delatorre’s attorney introduced himself, and Delatorre
broke in: “Excuse me, Mr. Kling does not represent
me in any way, shape or form . . . . That is all I have to
say for now.” Judge Castillo then found Delatorre com-
petent to stand trial and urged him to discuss his
case with his court-appointed counsel to prepare for
trial. But Delatorre’s disruptions continued. He told
the court that his attorneys had refused to represent him
as a secured party creditor and that the government
had refused to respond to his requests about the basis
for his prosecution. Looking ahead toward the trial,
Judge Castillo advised Delatorre that any outbursts in
front of the jury would prejudice him. Delatorre, how-
ever, maintained that he continued to challenge what he
called the court’s “subject matter and personam juris-
diction.” Judge Castillo then referred to Delatorre’s
pro se filings and said that his requests would be de-
nied. Delatorre asked if he would receive something
16 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

in writing, and the judge said that he would issue a
minute order. Delatorre asked about the nature and
content of the forthcoming order. Judge Castillo told
him that while he might be unhappy with the ruling, he
could appeal. Delatorre continued his protests. Judge
Castillo asked him to be quiet, and Delatorre responded,
“I’m going to politely honor that request.” He did not.
Instead, as the judge tried to move on, Delatorre inter-
rupted to ask the court again about his pro se filings.
Judge Castillo responded, “I think I already asked you,
Mr. Delatorre, if there was anything else you wanted to
cover.” Undeterred, Delatorre continued:
DELATORRE: Well I did. You asked me to remain
silent though. You asked. You responded that I do so,
but I would like to continue to speak, if that would be
possible. Can I?
COURT: I would ask you to remain silent then because
I think I’ve covered it.
DELATORRE: Then I’m going to have to honor that —
COURT: Are there any other pro se motions?
DELATORRE: — because you have not answered my
questions.
COURT: No, I’m asking you to remain silent at this
point.
DELATORRE: And I’m asking you to respond to my
questions.
Delatorre then continued for several more pages of tran-
script without interruption, demanding an explanation
Nos. 09-1190, 09-1224, 09-1225, 17
09-1226, 09-1227 & 09-1251

of the gold fringe on the flag in the courtroom, repeating
his jurisdictional objections, and making assertions such
as: “No one can explain to me why the United States has
to operate as a corporation. No one can explain to me
that there is, in fact, a distinction between the united
50 union states and the United States federal govern-
ment. No one can explain to me who’s, in fact, bringing
this claim or charge against me.”
By this time, Judge Castillo, the prosecutors, and
defense counsel were justifiably concerned about the
prospect that Delatorre would disrupt the trial, preju-
dicing himself and his co-defendants. Judge Castillo
asked the prosecutors how they wished to proceed with
Delatorre, and several co-defendants then moved for
severance. Judge Castillo said at this point that it was
becoming increasingly likely that Delatorre would con-
tinue in his sovereign-citizen assertions out of turn and
in front of the jury. He expressed his reluctance either
to remove Delatorre from the courtroom or to bind and
gag him at trial.
At the next status conference, on January 29, 2008,
Delatorre tried to seize the agenda by repeating his juris-
dictional challenges. Judge Castillo allowed him to
talk and then explained once again that he rejected
Delatorre’s jurisdictional challenges, and reasonably
asked Delatorre whether he could refrain from disrupting
the trial. Delatorre refused to answer. After listening to
more of Delatorre’s ramblings, the court asked once again:
“My question to you is once we start picking the jury . . .
18 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

will you allow your attorneys to speak for you during the
jury selection and trial?” Again, Delatorre did not an-
swer. Instead he asserted that his attorneys were refusing
to represent him “as a flesh-and-blood human being,” that
his name was spelled incorrectly in the indictment, and
that he needed the court to prove that the government
had jurisdiction over him. He insisted that he did not
consent to the proceedings and that he was a sovereign
and thus immune from prosecution. With admirable
patience, the court again asked, “Are you going to allow
Mr. Kling and Mr. Huyck to represent you and stay
silent while we select a jury next Wednesday?” The judge
explained that “if you disrupt the jury selection, I’m going
to have no choice but to have you removed from the
courtroom. Do you understand that?”
Delatorre’s disruptions continued. After warning him
once more that “the consequences of continuing along
these lines will be you being removed from the trial and
the trial will proceed without you,” Judge Castillo
ordered him removed from the courtroom. Delatorre
had been the only defendant to appear at the January 29
conference in person; the other defendants (including
Benabe) were represented by counsel but were not them-
selves present, having waived their right to appear.
The following day the court issued an opinion rejecting
Delatorre’s sovereign-citizen theories and recounting the
history of his disruptive behavior. The written opinion
again warned Delatorre “that his continued failure to
obey this Court’s orders could result in him being
Nos. 09-1190, 09-1224, 09-1225, 19
09-1226, 09-1227 & 09-1251

barred from the courtroom during jury selection or trial
to avoid potential prejudice to his six co-Defendants and
to himself.” United States v. Delatorre, 2008 WL 312647, at *3
(N.D. Ill. Jan. 30, 2009).
At a status conference hearing on January 31,
Judge Castillo asked defense counsel to read the Jan-
uary 30 order and to share it with each of the defendants.
With all defendants present, the judge said that before
the start of the trial, he would ask “each defendant if
they intend to speak during the trial without . . . court
permission. And any defendant who responds in the
affirmative will be held at the [Metropolitan Correc-
tional Center] from day one of the trial and will see the
trial from a seat at the MCC. I will not allow any
defendant to prejudice any of the other defendants on
trial before any of the prospective jurors.” The judge
stated that “any further attempts by Mr. Delatorre or
any defendant to disrupt this trial will have to be inter-
preted by me as a willingness on the part of that defendant
to watch the trial at the MCC, and I will make arrange-
ments to ensure that that happens.”
After these warnings at the beginning of the January 31
status conference, defendant Benabe interrupted and
began to pursue the same disruptive course that
Delatorre had followed. Benabe began to protest the
court’s jurisdiction by stating that he was “a secured-
party creditor, third-party intervenor” and that he was
not the “all-capital, corporate fiction person, debtor, straw
man” named in the indictment. He demanded “docu-
20 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

mented evidence” that the court had jurisdiction over
him as a “born sovereign, flesh-and-blood human being.”
The trial court referred Benabe to its January 30 opinion
and stated that it was a “bad sign” that Benabe did not
want to read the opinion. The court again warned
Benabe that before the trial started, “I will ask you whether
or not you’re going to make statements without . . . court
permission during the trial. If you give me no answer or
if you say that you will, I will hold you at the MCC while
the trial proceeds.” When Benabe continued to demand
proof that the court had jurisdiction over him, the court
ordered him removed from the courtroom. (After his
removal, Benabe filed multiple pro se documents on
February 4 that echoed his January 31 assertion of “sover-
eign citizenship.”) After Benabe’s removal from the
courtroom, Delatorre joined in again, saying, “I’m not a
defendant, but I have an unresolved issue that I would
like to address.” He was also removed at that point.
Things came to a head on February 5 — the day before
jury selection would begin. All defendants were present
for another status hearing. True to his word,
Judge Castillo inquired whether counsel had received
the January 30 opinion, whether defendants had read it,
and whether each defendant agreed not to make any
statements to the jury without permission. All agreed
except Delatorre and Benabe. Benabe refused to answer
the court’s question. Instead, he erupted with another
tirade about “illegal prosecution.” The court had him
removed.
Nos. 09-1190, 09-1224, 09-1225, 21
09-1226, 09-1227 & 09-1251

When it was his turn, Delatorre said he had not read
the opinion. The prosecution provided him with a copy,
but Delatorre refused to read it, supposedly because it
did not address him by his “birth given name.” The
judge asked him again whether he intended to make
statements to jurors without permission. Following
Benabe’s lead, Delatorre refused to answer. Instead, he
proffered a written “Affidavit of Truth,” the second
paragraph of which asserted: “That the undersigned
Affiant intends to fully cooperate with the Court’s pro-
ceeding during and throughout the course of trial.” The
judge accepted a copy of Delatorre’s document, and
then repeated his question orally. Delatorre’s only
response was to deflect the court’s question by asserting:
“I’ve addressed your concerns out of fear of my life and
of physical harm in writing.” This exchange occurred
twice more. Finding that Delatorre had refused several
times to confirm that he would not interrupt the jury
selection or trial, the court ordered him removed.
The court explained that the MCC would provide
Delatorre and Benabe with a room with a live video feed
from the courtroom, and that they could watch the
trial from there if they wished. The court made it clear
that Delatorre and Benabe were free to return to the
courtroom at any time if they would “indicate that
they will not speak in front of the prospective jurors or
the final jury . . . without the permission of this Court, as
long as they’ll abide by simple courtroom behavior.”
Counsel for Delatorre objected, asserting that Delatorre
had not yet acted up in the presence of jurors and that
he should not be removed preemptively.
22 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

The court’s response pointed out the unusual challenges
posed by Delatorre’s behavior in jury selection for a
trial expected to last several months, with a panel of
prospective jurors who had been screened already for
their ability to serve in such a long trial:
Mr. Delatorre . . . has disrupted, and the record will
reflect that, every single one of the last proceedings.
He has interrupted me repeatedly. . . . You’re asking
me to get 120 or so prospective jurors who have
been carefully selected who will probably go through
a snow storm to get here and to taint them with one
of his outbursts, and at which point we will have
to delay the trial again, while we try and put together
a required jury pool. I’m not willing to do that . . .
and I don’t think any defendant should control a
federal courtroom to that extent.
The judge did not need to add how difficult it would be,
and how long it would take, to clear all of the necessary
calendars of the court and counsel to reschedule the trial
if Delatorre or Benabe were permitted to disrupt jury
selection and taint the panel of prospective jurors.
On February 6, 2008, the first day of trial, counsel
reported that Delatorre and Benabe had both refused to
see them that morning, although both were in the
lockup in the courthouse. The court reminded counsel
that there was a video feed to the MCC in the event
that Delatorre or Benabe wanted to watch the trial, and
overruled counsel’s renewed objection that the defendants
had been removed before they were actually disruptive.
Nos. 09-1190, 09-1224, 09-1225, 23
09-1226, 09-1227 & 09-1251

Jury selection began. The court informed the prospective
jurors that Delatorre and Benabe “have been excused
from attending the trial . . . for reasons that have nothing
to do with the merits of the trial.” After reminding the
prospective jurors of the presumption of innocence, the
court inquired whether the absence of Delatorre and
Benabe would affect any of them one way or the other.
Prospective jurors who indicated that they could not be
neutral or had feelings about the issue were excused
for cause without objection.
As trial progressed, the court repeatedly asked whether
Delatorre and Benabe were willing to attend the trial.
Delatorre and Benabe refused to communicate with
their attorneys, and the trial proceeded without them.
Neither defendant watched the live video feed of the
trial at the MCC.

B. Analysis
Delatorre and Benabe argue that the trial court violated
their rights under the Sixth Amendment and Federal
Rule of Criminal Procedure 43(c) to be present at all
stages of trial by removing them for their behavior.
They assert that removing a misbehaving defendant
before trial has begun is a per se violation of that defen-
dant’s Sixth Amendment rights. They also argue that
their behavior was not terribly disruptive, and that even
if their pre-trial behavior did rise to such a level that
there was a real risk that trial could not proceed, the
court was required to follow a “hierarchy of remedies.” In
24 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

their view, removal is a last resort available only after
a defendant has been bound, gagged, shackled, and held
in contempt.
We first address whether the defendants’ argument that
their conduct never rose to a level that would have re-
quired their removal. We then address their arguments
that their removal violated their rights to be present
under the Constitution and then Rule 43. We hold that
by their conduct, Delatorre and Benabe consented to
their removal from the courtroom during trial, unless
and until they were ready to promise to behave.
The record demonstrates that Delatorre and Benabe
knowingly and voluntarily waived their constitutional
right to be present, and the district judge did not err
by removing them from the courtroom. That waiver
resolves the Sixth Amendment issue. However, the defen-
dants were not “initially present” at trial before being
warned and removed, which Federal Rule of Criminal
Procedure 43(c) explicitly requires. In this respect
the trial court erred, but on this record there was
no difference between ordering the defendants re-
moved on the day before trial rather than waiting until
the morning of trial. The Rule 43(c) error was harmless.

1. Defendants’ Misconduct
A threshold question raised by the defendants is
whether their conduct justified their removal. Although
they now admit that their tactics were “ill-advised,” they
contend that their pre-trial behavior was not a valid
Nos. 09-1190, 09-1224, 09-1225, 25
09-1226, 09-1227 & 09-1251

predictor of how they would behave before a jury, and
that their behavior was never so disorderly, disruptive, or
disrespectful that the trial could not have been
conducted in their presence. Delatorre also argues that
in fact he did comply with Judge Castillo’s request that
he promise not to disrupt the trial in his written
“Affidavit of Truth.”
True, neither Delatorre or Benabe behaved in a violent,
threatening, or obscene manner. They cloaked themselves
in politeness, often saying “please,” “thank you,” and
“excuse me.” But there is no question that their frequent
and undeterred outbursts, in which the defendants de-
clared themselves to be “sovereign citizens,” “secured-
party creditors” and “flesh-and-blood human beings” who
were somehow outside the jurisdiction of the court,
were obstructive, disrespectful, and potentially inflam-
matory. The defendants regularly spoke out of turn,
sidelined the legitimate business of the court, and
wasted valuable judicial resources with their baseless im-
munity claims. The district judge was rightly concerned
that Delatorre and Benabe would speak out of turn and
espouse their theories in front of the jury, causing con-
fusion, prejudicing their co-defendants, and tainting a
carefully screened jury pool. In that equation, the defen-
dants’ relative politeness simply does not matter, and
we will not second-guess Judge Castillo’s assessment.
We are also unpersuaded by the defendants’ argument
that their pre-trial behavior was not an appropriate
predictor of how they would behave before the jury.
26 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

These defendants were relentless in their interruptions,
consistently attempting to derail nearly every pre-trial
status conference they attended. Nevertheless, after
clearly explaining the risks and consequences, Judge
Castillo gave them each one final opportunity to
assure him that they would not disrupt the proceedings
after the case was called and the prospective jurors
brought into the courtroom. They each refused to give
that assurance. The combination of their pretrial
behavior and their refusal to promise to control their
behavior at trial was a sufficiently reliable indicator of
trouble, threatening the ability of the other defendants
to receive a fair trial. Judge Castillo did not err in
relying on these defendants’ past performances and
their refusals to promise to behave appropriately before
the jury.
Delatorre argues that Judge Castillo failed to acknowl-
edge that in his written “Affidavit of Truth” of February 5,
he did as Judge Castillo asked and promised to refrain
from outbursts before the jury, making his promise in
writing because he feared for his life. Paragraph 2 of
his affidavit stated that he “intends to fully cooperate
with the Courts proceedings during and throughout the
courts of trial.” The first problem with Delatorre’s argu-
ment is the rest of his affidavit. Paragraph 2 contained
his promise to refrain from outbursts, but paragraphs 1, 3,
4, 5, 6, 7, and 7A (of eight total paragraphs) echoed the
same nonsensical assertions of sovereignty and immunity
that Delatorre had advocated in disrupting the prior
proceedings. Judge Castillo reasonably dismissed para-
Nos. 09-1190, 09-1224, 09-1225, 27
09-1226, 09-1227 & 09-1251

graph 2 of Delatorre’s Affidavit of Truth as meaningless,
given its context. Second, there was no evidence, then
or now, that Delatorre’s life was in any danger. After
Delatorre’s repeated outbursts and his ongoing disre-
spect for the court, the prosecution, his own counsel, and
the proceedings, Judge Castillo’s demand that Delatorre
state openly and on the record that he would cease his
outbursts was reasonable. We find no error in the
judge’s interpretation of Delatorre’s refusal to answer a
direct question in open court as a clear threat that
Delatorre intended to disrupt the trial.
Our intention is not to quash the presentation of creative
legal arguments or novel legal theories asserted in good
faith. But the arguments raised by these defendants were
not in good faith. We have repeatedly rejected their
theories of individual sovereignty, immunity from prose-
cution, and their ilk. See United States v. Burke, 425
F.3d 400, 408 (7th Cir. 2005); United States v. Hilgeford,
7 F.3d 1340, 1342 (7th Cir. 1993) (rejecting the “shop worn”
argument that a defendant is a sovereign and is beyond
the jurisdiction bounds of the district court); United
States v. Sloan, 939 F.2d 499, 500-01 (7th Cir. 1991);
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990)
(describing defendant’s proposed “sovereign citizen” de-
fense as having “no conceivable validity in American
law”); United States v. Phillips, 326 Fed. Appx. 400 (7th
Cir. 2009) (dismissing jurisdiction arguments as frivolous
because federal courts have subject matter and personal
jurisdiction over defendants brought before them on
federal indictments alleging violations of federal law).
28 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

Regardless of an individual’s claimed status of descent,
be it as a “sovereign citizen,” a “secured-party creditor,”
or a “flesh-and-blood human being,” that person is not
beyond the jurisdiction of the courts. These theories
should be rejected summarily, however they are pre-
sented. These defendants raised their immunity argu-
ments with the trial court, which properly dismissed
them. But for these defendants, once was not enough.
Rather than acknowledging the court’s ruling (and, if
they wished, saving their arguments for appeal), these
defendants continued to interrupt the proceedings in
a campaign to obstruct the trial. In doing so, they crossed
the line, entering the territory of abuse of the judicial
process. Judge Castillo did not err in acting on his
valid concern that Delatorre and Benabe would continue
on their campaign of confusion and obstruction in the
presence of the jury at the risk of prejudicing the venire
and necessitating a delay of the proceedings.

2. Due Process and the Sixth Amendment
After issuing a warning, the trial court in Illinois v.
Allen, 397 U.S. 337 (1970), removed from the courtroom
a criminal defendant who was spewing threats and
other abuse. In upholding the trial court’s decision to
expel Allen from the courtroom, Justice Black wrote:
It is not pleasant to hold that the respondent Allen
was properly banished from the court for a part of
his own trial. But our courts, palladiums of liberty as
they are, cannot be treated disrespectfully with impu-
Nos. 09-1190, 09-1224, 09-1225, 29
09-1226, 09-1227 & 09-1251

nity. Nor can the accused be permitted by his disrup-
tive conduct indefinitely to avoid being tried on the
charges brought against him. It would degrade our
country and our judicial system to permit our courts
to be bullied, insulted, and humiliated and their
orderly progress thwarted and obstructed by defen-
dants brought before them charged with crimes. As
guardians of the public welfare, our state and
federal judicial systems strive to administer equal
justice to the rich and the poor, the good and the
bad, the native and foreign born of every race, nation-
ality, and religion. Being manned by humans, the
courts are not perfect and are bound to make
some errors. But, if our courts are to remain what the
Founders intended, the citadels of justice, their pro-
ceedings cannot and must not be infected with the
sort of scurrilous, abusive language and conduct
paraded before the Illinois trial judge in this case.
Allen, 397 U.S. at 346.
Yet, a criminal defendant’s right to be present at trial
is constitutional bedrock. The Sixth Amendment pro-
vides in pertinent part: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial,
by an impartial jury. . . ; to be confronted with the wit-
nesses against him; to have compulsory process for ob-
taining witnesses in his favor, and to have the Assistance
of Counsel for his defense.” There is no question that
under this Amendment, the accused has a right to be
present at trial. See Allen, 397 U.S. at 338. The Due
30 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

Process Clauses of the Fifth and Fourteenth Amend-
ments offer additional protection. For due process, a
defendant must be present “to the extent that a fair and
just hearing would be thwarted by his absence.” Kentucky
v. Stincer, 482 U.S. 730, 745 (1987), quoting Snyder v.
Massachusetts, 291 U.S. 97, 107-08 (1934).
In reconciling these competing interests, the law allows
criminal defendants to waive their constitutional right
to be present at trial. See Diaz v. United States, 223 U.S. 442,
455 (1912) (“where the offense is not capital and the
accused is not in custody, the prevailing rule has been,
that if, after the trial has begun in his presence, he volun-
tarily absents himself, this does not nullify what has
been done or prevent the completion of the trial, but on
the contrary, operates as a waiver of his right to be pres-
ent”); see also Taylor v. United States, 414 U.S. 17, 19-20
(1973) (per curiam) (discussing knowing and voluntary
waiver of right to be present at trial as sufficient for
constitutionally valid trial in absentia); United States v.
Watkins, 983 F.2d 1413, 1419 (7th Cir. 1993). A defendant
in a criminal trial may waive his right to be present
either “by consent or at times even by misconduct.” Snyder,
291 U.S. at 106. In other words, a defendant’s consent
to removal need not be explicit. It can be implied, based
on the defendant’s actions. See Watkins, 983 F.2d at 1420;
see also Taylor, 414 U.S. at 20 (inferring consent from
an admittedly voluntary departure during trial). Such
a waiver, however, must be both knowing and volun-
tary, and the court “must indulge every reasonable pre-
sumption against the loss of constitutional rights.” Allen,
Nos. 09-1190, 09-1224, 09-1225, 31
09-1226, 09-1227 & 09-1251

397 U.S. at 343. A defendant who has lost his right to
be present can always regain it as soon as he “is willing
to conduct himself consistently with the decorum and
respect inherent in the concept of courts and judicial
proceedings.” Id.
Keeping with other circuits that have addressed situa-
tions akin to this one, we conduct a three-pronged inquiry
to review a district court’s finding that a criminal defen-
dant has waived his right to be present at trial. See
Watkins, 983 F.2d at 1419; see also United States v. Tureseo,
566 F.3d 77, 83-84 (2d Cir. 2009); United States v. Bradford,
237 F.3d 1306, 1311 (11th Cir. 2001); United States
v. Davis, 61 F.3d 291, 302 (5th Cir. 1995); United States v.
Guyon, 27 F.3d 723, 727 (1st Cir. 1994). First, we deter-
mine whether the district court abused its discretion
when it found that the accused had knowingly and volun-
tarily waived the right, reviewing for clear error the
district court’s factual finding that the waiver was
knowing and voluntary. Watkins, 983 F.2d at 1419, citing
United States v. Fontanez, 878 F.2d 33, 35 (2d Cir. 1989), and
United States v. Houtchens, 926 F.2d 824, 827 (9th Cir. 1991).
We will reverse if we find that the district court
“left unexplored serious questions as to whether the
appellant’s absence was knowing and voluntary.” See
Watkins, 983 F.2d at 1419, citing United States v. Hernandez,
873 F.2d 516, 519 (2d Cir. 1989). Second, we consider
whether the court appropriately exercised its discretion
in concluding that there was a controlling public interest
to continue the trial in spite of the defendant’s absence.
See id., at 1419, citing Fontanez, 878 F.2d at 35, and United
32 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

States v. Tortora, 464 F.2d 1202, 1210 (2d Cir. 1972).
The court must consider the likelihood that the trial
could take place with the defendant present, the difficulty
of rescheduling, the inconvenience to jurors, and the
burden on the government and others of having to under-
take two trials, particularly in a multiple defendant case.
See id., quoting Fontanez, 878 F.2d at 37. Finally, if we
conclude that the district court erred either in finding
a knowing and voluntary waiver or in continuing the
trial in the defendant’s absence, we consider whether
the error was harmless in light of the record as a whole.
Watkins, 983 F.2d at 1419; see also Stincer, 482 U.S. at 745
(stating that the right to be present is not guaranteed
“when presence would be useless, or the benefit but
a shadow”) (internal citation and quotation marks omit-
ted); Chapman v. California, 386 U.S. 18, 22-24 (1967) (error
will be considered harmless if it did not contribute to
the verdict).
The record before us offers clear support for the district
judge’s determination that, through their tandem cam-
paign of obstreperous interruptions and frivolous legal
arguments, Delatorre and Benabe knowingly and volun-
tarily waived their right to be present a trial. Recognizing
the stakes, Judge Castillo gave these defendants many
opportunities to change course and to participate in the
proceedings. They chose to abuse and disrespect those
opportunities. As the judge’s January 30 order made
clear, he would not permit Delatorre (who, at that
point, was a lone operator) to prejudice the other defen-
dants before the jury by his behavior. Judge Castillo
Nos. 09-1190, 09-1224, 09-1225, 33
09-1226, 09-1227 & 09-1251

notified all the defendants that Delatorre’s chosen
course could result in his being barred from the court-
room. Then, in open court on January 31, Delatorre and
Benabe were warned orally that the judge would ask
them if they intended to speak out of turn at trial, and
if they refused to confirm that they would behave re-
spectfully in front of the jury, Judge Castillo would inter-
pret that refusal as “a willingness on the part of
that defendant to watch the trial at the MCC.”
The day before trial was scheduled to begin, Judge
Castillo directly asked each defendant whether he
agreed not to make any statements to the jury without
the court’s permission. All defendants agreed to this
simple and basic condition, except Delatorre and Benabe.
Both clearly knew at that point what would happen if
they refused to promise on the record and in open court
to refrain from any further outbursts. They made their
choice, and the record fully supports the judge’s deter-
mination that they made that choice knowingly and
voluntarily. Once they were removed, the district court
left the courtroom door open for them, making plain
that they could return at any time during the trial
upon promising to behave properly. They never did so.
The record establishes that Delatorre and Benabe con-
sented to waive their constitutional rights to be present
at their trial.
Judge Castillo also appropriately weighed the public
interests at stake. Five other defendants were scheduled
to be tried in this complex and lengthy trial, and their
34 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

right to an impartial jury was under serious threat
from Delatorre’s and Benabe’s behavior. The jury pool
had been screened for prospective jurors who could
serve for a long trial. If Delatorre and Benabe had suc-
ceeded in tainting the jury pool, it would have been a
long and difficult process to put together another. Also,
the schedules of the defense lawyers, the prosecutors,
and the court had been cleared so that the trial
could go forward as efficiently as possible. No doubt
Judge Castillo had pushed off other trials and pro-
ceedings to make room for the Insane Deuces, and it
would have been nearly impossible to ready any other
parties to go to trial during any ensuing delay. Modern
American courts simply do not have the luxury of time
to indulge the obstructionist tactics of these defendants.
Budgets, calendars, and administrative capacities are
already too strained. Judge Castillo did not abuse his
discretion in determining that the public interest
weighed strongly in favor of moving the trial forward,
even if that meant going forward with Delatorre and
Benabe out of the courtroom. We find no constitutional
error in their exclusion.
The defendants argue that the Sixth Amendment estab-
lishes a per se rule that a disruptive defendant must
be present at the beginning of trial before being removed
and that a trial judge must exhaust every other possible
cure before removing a defendant from the courtroom.
But the Allen Court found that the Sixth Amendment
does not “so handicap a trial judge in conducting a crimi-
nal trial.” Allen, 397 U.S. at 342. The Court commented
Nos. 09-1190, 09-1224, 09-1225, 35
09-1226, 09-1227 & 09-1251

that, as inherently onerous as their options are, trial
judges might choose to handle obstructive defendants
with binding and gagging, contempt citations, or removal
of the defendant, without treading on the Constitution.
See id. at 344-46. But the Court did not make removal a
last resort. Instead, the Court put its faith in trial courts
to choose the best method to maintain the dignity and
decorum of the proceedings in a case-by-case fashion,
based on the unique circumstances presented by the
defendant and the trial, while preserving the rights of
criminal defendants. “We believe trial judges confronted
with disruptive, contumacious, stubbornly defiant defen-
dants must be given sufficient discretion to meet the
circumstances of each case. No one formula for main-
taining the appropriate courtroom atmosphere will be
best in all situations.” Id. at 343. Ultimately, the Allen
Court held that a defendant can lose his right to be
present at trial if, after he has been warned by the judge
that he will be removed if he continues his disruptive
behavior, he nevertheless insists on conducting himself
in a manner so disorderly, disruptive, and disrespectful
of the court that his trial cannot be carried on with him
in the courtroom. See id. That is exactly what occurred
here. There was no constitutional error.

3. Rule 43
We now shift gears from the Constitution to the more
demanding provisions of Federal Rule of Criminal Pro-
cedure 43. The defendants argue that Rule 43 requires that
36 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

a defendant may be removed only if he is physically
present at the beginning of jury selection, is seriously
disruptive once, is then warned that further disruptive
behavior will result in removal, and then persists in
misbehavior. As the defendants read the rule, a trial court
may not issue an order the day before trial excluding a
defendant from the courtroom during trial, as occurred
here.
Rule 43 builds on a defendant’s constitutional right to
be “present at all stages of the trial where his absence
might frustrate the fairness of the proceedings.” Faretta v.
California, 422 U.S. 806, 819 n.15 (1975); United States v.
Gibbs, 182 F.3d 408, 436 (6th Cir. 1999) (noting that rights
protected under Rule 43 are more expansive than those
guaranteed by the Constitution). Rule 43(a) provides
that unless otherwise allowed by Rules 5 or 10, the defen-
dant must be present at:
(1) the initial appearance, the initial arraignment, and
the plea;
(2) every trial stage, including jury impanelment and
the return of the verdict; and
(3) sentencing.
Rule 43(c) provides for waiver of a defendant’s con-
tinued presence under the following circumstances:
(1) In General. A defendant who was initially present
at trial, or who had pleaded guilty or nolo contendere,
waives the right to be present under the following
circumstances:
Nos. 09-1190, 09-1224, 09-1225, 37
09-1226, 09-1227 & 09-1251

(A) when the defendant is voluntarily absent
after the trial has begun, regardless of whether
the court informed the defendant of an obliga-
tion to remain during trial;
(B) in a noncapital case, when the defendant is
voluntarily absent during sentencing; or
(C) when the court warns the defendant that it
will remove the defendant from the courtroom
for disruptive behavior, but the defendant
persists in conduct that justifies removal from
the courtroom.
If the defendant waives the right to be present under
Rule 43(c), the trial may proceed to completion in the
defendant’s absence. But the language of Rule 43 does
not provide for waiver of the right to be present unless
a defendant is “initially present at trial.”
This case poses the question of what exactly it means
to be “initially present at trial.” In oral argument, the
defendants asserted that it means the defendant must
be physically present at the moment when the first pro-
spective jurors enter the courtroom (a standard that
would not help in a bench trial). We do not read the
rule’s language as being quite that precise, given dif-
ferent courts’ varied practices in managing jury selection,
especially when a defendant is in custody and must be
moved and managed out of the sight and hearing of
prospective jurors. Also, we do not read the rule as re-
quiring a district judge facing a long and multi-defendant
38 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

trial to give every defendant two opportunities to mis-
behave in front of the prospective jurors in ways that
could taint the jurors and prejudice the co-defendants.
We conclude, however, that the phrase “initially present
at trial” in a jury trial must refer to the day that jury
selection begins, though not to the precise moment that
one or more prospective jurors enter the courtroom. See,
e.g., Diaz, 223 U.S. at 455 (“In cases of felony our courts,
with substantial accord, have regarded [the defendant’s
right to be present] as extending to every stage of the
trial, inclusive of the empaneling of the jury and the
reception of the verdict, and as being scarcely less impor-
tant to the accused than the right of trial itself”); United
States v. Burke, 345 F.3d 416, 422 (6th Cir. 2003) (reviewing
then-existing law and determining that “trial” for pur-
poses of Rule 43 denoted the time between the em-
paneling of the jury and the delivery of the sentence);
Bradford, 237 F.3d at 1309-10 (joining “every other circuit
to address the issue” in holding that a trial commences
under Rule 43 when the jury selection process begins);
United States v. Krout, 56 F.3d 643, 646 (5th Cir. 1995)
(finding for purposes of Rule 43 that trial begins with
jury selection and noting that “our research[] does not
reveal a contrary interpretation of the Rule”). As the
First Circuit commented, “the concept that a defendant
could go through trial proceedings to the point of
selecting the entire jury and then, perhaps because he
was dissatisfied with the complement thereof, freely
depart, does not appeal to us.” United States v. Miller,
Nos. 09-1190, 09-1224, 09-1225, 39
09-1226, 09-1227 & 09-1251

463 F.2d 600, 603 (1st Cir. 1972) (same). Here, then, trial
commenced on the morning of February 6, for it was not
until then that the jury selection process began.
The district court’s order here, issued the day before
trial began, did not comply with the language of
Rule 43(c). As the Supreme Court has said, Rule 43 means
what it says. See Crosby v. United States, 506 U.S. 255, 261
(1993). But Federal Rule of Criminal Procedure 52(a) also
means what it says: “Any error, defect, irregularity, or
variance that does not affect substantial rights must be
disregarded.” The difference between issuing the order
on the day jury selection began and the day before it
began was an error that did not affect these defendants’
substantial rights. See Rogers v. United States, 422 U.S. 35, 40
(1975) (a violation of Rule 43 “may in some circum-
stances be harmless error”); Watkins, 983 F.2d at 1419
(applying harmless error standard to defendant’s ab-
sence from trial).
With the benefit of hindsight and reflection that appel-
late courts are allowed, we can say it would have been
better if the district court had brought the defendants to
the courtroom the morning of February 6, before any
prospective jurors were present, and asked them again
if they wished to reconsider their choices not to attend.
Assuming that the defendants had followed their
pattern of prior hearings, their expected refusal to
promise to behave would have justified their removal
and would have complied with Rule 43.
40 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

Defendants argue that we should not make that assump-
tion. We should assume instead, they argue, that they
might have changed their minds the next day if they
had been confronted with the immediacy of jury selection.
On this record, we are not persuaded. The failure to
repeat once more on the first day of trial the already-
repeated process did not affect the defendants’ substan-
tial rights. Unlike the defendant in Crosby, who fled before
trial commenced, these defendants did not flee or “fail
to appear.” See 506 U.S. at 261-62. On the day before
trial, the defendants had ample warning of the conse-
quences of their behavior. They were repeatedly warned
that the trial would go forward without them unless
they promised to behave, and they made a knowing
and voluntary choice. They were given an opportunity
to come to court the morning of trial, but chose not to
appear and refused to speak to their attorneys. At any
time during the trial, they could have returned to attend
the trial. They took none of those opportunities. On this
record, the purpose of Rule 43 certainly was served. See,
e.g., Cuoco v. United States, 208 F.3d 27, 31-32 (2d Cir.
2000) (in context of § 2255 motion arguing ineffective
assistance of counsel, commenting that Crosby’s holding
is limited to its facts, a defendant’s presence at the in-
ception of trial assures that any waiver is knowing,
and presuming that pre-trial waiver is effective if made
knowingly and voluntarily); Smith v. Mann, 173 F.3d 73, 76
(2d Cir. 1999) (distinguishing Crosby and Rule 43 from
petitioner’s habeas argument that his failure to appear
at his trial was not a knowing and voluntary waiver of
Nos. 09-1190, 09-1224, 09-1225, 41
09-1226, 09-1227 & 09-1251

his constitutional right to be present, explaining “the
case before us amply demonstrates that in some situa-
tions the requisite knowledge can be conclusively found
even if the defendant is not present when the trial be-
gins”). The courtroom door remained open to these
defendants on the morning of February 6 and every day
thereafter, if only they were willing to promise to behave
properly before the jury. The timing of the defendants’
knowing and voluntary waiver of their right to be present
did not affect their substantial rights or fail to serve the
purpose of protecting their right to attend their trial. In
short, the difference between removing these defendants
from trial the day before trial began and the day it
actually began was harmless.
The defendants argue that their absence from trial was
a structural violation that could not be harmless. We
disagree. It is important in this analysis to remember
the precise error in question. There was no constitu-
tional error because the defendants knowingly and volun-
tarily waived their presence by their conduct. The nar-
rower error under Rule 43 was only the precise timing
of the exclusion order. The defendants’ absence at the
instant the trial technically began was not “a defect af-
fecting the framework within which the trial proceeds,”
Arizona v. Fulminante, 499 U.S. 279, 310 (1991), nor was it
an error that “necessarily rendered a trial fundamentally
unfair,” Rose v. Clark, 478 U.S. 570, 577 (1986); cf. United
States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (erroneous
deprivation of the right to counsel of choice is a structural
error); Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)
42 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

(denial of the right to trial by jury by the giving of a
defective reasonable doubt instruction was a structural
error not subject to harmless error review); Vasquez v.
Hillery, 474 U.S. 254, 263-64 (1986) (discrimination in the
grand jury is not subject to harmless error review);
McKaskle v. Wiggins, 465 U.S. 168, 177-78 n.8 (1984) (denial
of the right to self-representation at trial is not subject
to harmless error review); Waller v. Georgia, 467 U.S. 39,
49 n.9 (1984) (denial of the right to a public trial is not
subject to harmless error review); Gideon v. Wainwright,
372 U.S. 335, 344-45 (1963) (complete denial of trial counsel
was a structural error requiring reversal); Tumey v. Ohio,
273 U.S. 510, 535 (1927) (fact that judge had a financial
interest in conviction warranted reversal despite a lack
of indication that bias influenced decisions).
To require automatic reversal for a violation of Rule 43
based on a defendant’s absence at the moment trial
begins would only reward these defendants for their ob-
structionist campaign. Delatorre and Benabe knowingly
and voluntarily waived their right to be present. They
maintained that waiver over the course of the entire trial.
They were in complete control of their own presence
or absence from the courtroom at any given moment
during the proceedings against them, including when
the case was called and the jury selected on February 6.
A per se rule would invite future defendants to attempt
similar obstructionist tactics, including waiving their
right to be present from their jail cell on the day of trial.
We see no reason to expand the limited list of structural
rights whose violation constitutes per se error by adding
Nos. 09-1190, 09-1224, 09-1225, 43
09-1226, 09-1227 & 09-1251

the defendants’ Rule 43 right to be present at the incep-
tion of trial. The timing of the trial court’s decision to
remove the defendants from the courtroom, although a
technical violation of Rule 43, was harmless.

III. Eyewitness Identifications
Guzman argues that the district court erred by refusing
to strike the testimony of witnesses who identified him
as the man who shot and murdered David Lazcano.
We conclude that the identifications were properly ad-
mitted.
Sonya Reynolds and Ebony Pool described the Au-
gust 11, 2002 murder of David Lazcano. Reynolds was
driving a car directly behind the car Lazcano was riding
in when both cars stopped at a traffic light. Pool was
Reynolds’ daughter and was riding in her car as a pas-
senger. Reynolds saw a skinny, dark-skinned Hispanic
man with short, dark hair approach. He was wearing
jeans and “a light blue or whitish T-shirt with a sterling
silver chain around his neck.” The man approached
the passenger side of the car directly in front of hers,
pulled out a gun, and started shooting. Reynolds began
screaming and the shooter looked at her and then ran
away. She gave her first description of the shooter ap-
proximately three months after the shooting, on Novem-
ber 22, 2002. On that day she identified Guzman as
the shooter in a photo lineup. Then, in March 2003, she
identified Guzman in a live lineup, although she stated
that she could not be absolutely certain of her identifica-
44 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

tion because of the amount of time that had elapsed. At
trial, Reynolds identified Guzman as the person in the
photo lineup whom she had identified as the shooter.
Pool also testified that she witnessed Lazcano’s
murder, identifying the shooter as a short, skinny, His-
panic man, with dark skin, “a peanut-shaped head,” and
close-cut hair, wearing blue jeans and a white T-shirt.
Pool saw the man walk up to the car in front of her, pull
out a gun, and shoot the passenger. The shooter looked
at Pool, giving her “a full glimpse of how he looked
like.” On November 22, 2002, Pool identified Guzman in
a photo array. In the March 2003 live lineup she ruled
out all but two men, one of whom was Guzman, but
stated that she could not identify him as the shooter
with certainty because too much time had passed. She
was not asked to identify Guzman at trial.
Guzman moved to suppress the out-of-court identifica-
tions made by Reynolds and Pool as the product of sug-
gestive identification procedures, but he asked the court
to wait to rule on his motion until after the witnesses
had testified. Following Reynolds’ and Pool’s testimony,
Guzman did not ask the court for a ruling on his motion
but the court denied his motion in a minute order.7

7
Because the district court ruled on the merits of Guzman’s
motion, we bypass the government’s argument that Guzman
filed his motion too late or abandoned it. But Guzman’s
failure to return to the issue prevented the issue from being
well developed before the district court.
Nos. 09-1190, 09-1224, 09-1225, 45
09-1226, 09-1227 & 09-1251

Our review of the district court’s denial is de novo, but
with “due deference” to the trial court’s findings of
historical fact. United States v. Harris, 281 F.3d 667, 670
(7th Cir. 2002) (resolving appropriate standard of review
of a trial court’s refusal to suppress an identification).
In reviewing a due process challenge to an identification,
we undertake a “well-settled, two-pronged analysis:
(1) whether the [out-of-court identification] process was
unduly suggestive, and (2) if so, whether the identifica-
tion was nevertheless sufficiently reliable.” United States
v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009); United States
v. Hawkins, 499 F.3d 703, 707 (7th Cir. 2007).
Guzman suggests that the out-of-court identification
procedures were too suggestive because the witnesses
first saw Guzman in a photo lineup and then in a live
lineup. But we have previously rejected this argument in
a case with very similar facts. See Harris, 281 F.3d at 670
(“there is nothing per se impermissible about placing
the same suspect in two different identification proce-
dures,” noting particularly that six months passed
between the photo lineup and the live lineup; it was
unlikely after the passage of so much time that the
witness was influenced by the earlier photograph). Even
if Guzman could satisfy the first prong, he fails to show
that the identifications made by Reynolds and Pool were
impermissibly unreliable. The jury heard testimony and
cross-examination regarding the highly charged, con-
fused scene at the shooting, and the amounts of time
that passed between the shooting, the photo array, and
then the live lineup. Eyewitness identification of a
46 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

stranger is not infallible, but the issues regarding the
reliability of these witnesses’ identification of Guzman
were fully aired on cross-examination for the jury to
evaluate them. The issues raised by Guzman on ap-
peal do not make Reynolds’ and Pool’s out-of-court
identifications inherently unreliable.
Guzman also argues that if the out-of-court identi-
fication procedures were tainted, Reynolds’ in-court
identification of Guzman should have been suppressed,
particularly because Reynolds was asked at trial if the
person she had identified in the photo lineup was in the
courtroom, but was not asked if she recognized Lazcano’s
shooter in the courtroom. Having found, however, that
there was nothing improperly suggestive or unreliable
about the Reynolds’ out-of-court identification, Reynolds’
in-court identification of Guzman as the person she had
identified as the shooter in the photo lineup was not
impermissible.

IV. Jury Instructions
The appellants contend that the district court made
three errors in instructing the jury, two in the guilt phase
of the trial and one in the penalty phase. A district court
has considerable discretion in phrasing, organizing, and
adapting jury instructions to the specific needs of the case,
as long as the instructions fairly and accurately sum-
marize the law and have support in the record. See, e.g.,
United States v. Jefferson, 334 F.3d 670, 672 (7th Cir. 2003).
We review de novo whether jury instructions “fairly and
Nos. 09-1190, 09-1224, 09-1225, 47
09-1226, 09-1227 & 09-1251

accurately summarize the law,” and we review the in-
structions in their entirety. United States v. Webber,
536 F.3d 584, 599 (7th Cir. 2008). We will reverse only if
the instructions, when viewed in their entirety, so mis-
guided the jury that they led to appellants’ prejudice.
Id. We find no error in the instructions the court gave
in this case.

A. Aiding and Abetting Instruction
The defendants challenge the district court’s aiding and
abetting instruction as applicable to the RICO conspiracy
charge. The district court gave this circuit’s pattern
aiding and abetting instruction:
A person who knowingly aids, counsels, commands,
induces or procures the commission of an offense
may be found guilty of that offense. That person
must knowingly associate with the criminal activity,
participate in the activity and try to make it succeed.
If a defendant knowingly caused the acts of another,
the defendant is responsible for those acts as though
he personally committed them.
The defendants contend that the jury should have been
given the following instruction applicable to the RICO
conspiracy charge:
With respect to Count One, a defendant who aids and
abets the commission of that offense may be found
guilty of that offense.
48 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

In order to aid and abet the commission of the offense
charged in Count One, a defendant must:
1) know of the conspiratorial agreement alleged
in Count One;
2) knowingly assist in the commission of at least
two of the predicate acts set forth in Paragraph 11
of Count One; and
3) try to make the conspiratorial agreement alleged
in Count One succeed.
The key difference is the defense’s proposed require-
ment that the defendant must have knowingly assisted
in the commission of at least two of the predicate acts
of racketeering listed in the indictment.
In support of their proposed instruction, the defendants
argue that the Seventh Circuit pattern instruction given
by the court was inappropriate in this case because the
conspiracy charged was a RICO conspiracy. But their
argument is based on an incorrect view of the require-
ments for proving a defendant’s liability for a RICO
conspiracy. The RICO conspiracy charged in this case
under 18 U.S.C. § 1962(d) alleged a conspiracy to violate
18 U.S.C. § 1962(c), which makes it unlawful “for any
person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate
or foreign commerce, to conduct or participate, directly
or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or collection
of unlawful debt.” RICO defines a pattern of racketeering
Nos. 09-1190, 09-1224, 09-1225, 49
09-1226, 09-1227 & 09-1251

activity to require at least two acts of racketeering
activity, which is defined in terms of a long list of crimes.
See 18 U.S.C. § 1961(1), (5).
To prove primary liability for a RICO conspiracy under
section 1962(d), the government must prove only that a
particular defendant agreed that a member of the con-
spiracy would commit two predicate racketeering acts,
not that the particular defendant committed or agreed
to commit two predicate acts himself. See United States v.
Salinas, 522 U.S. 52, 65-66 (1997) (resolving circuit split
on this question). A RICO conspiracy case does not
require proof that any racketeering acts were actually
carried out. Id. at 63 (noting absence of overt-act require-
ment under section 1962(d)). Thus, by extension, to
prove aiding and abetting in a RICO conspiracy, the
government must prove that a defendant aided and
abetted in the conspiratorial agreement, not in any
alleged predicate acts of racketeering activity. The trial
court instructed the jury correctly.

B. Pattern of Racketeering Activity
Susinka argues that the court erred in agreeing with
the government’s request to modify the Seventh Circuit
pattern instruction defining “pattern of racketeering
activity” to include the comment that it is not necessary
for the government to prove that any defendant agreed to
the commission of a particular act at a particular time
or place. Susinka argues that the amendment misled
the jury because a “pattern of racketeering activity”
50 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

instruction must point to specific predicate acts within
the indictment. Otherwise, he argues, the jury is invited
to search for bad acts by the defendants to serve as predi-
cate acts. Viewing the amendment to the “pattern of
racketeering activity” instruction given by the trial court
as part of a whole, we do not share Susinka’s concern
that the jury may have been misled. The predicate acts
were properly defined in the instructions. It was not
necessary for the government to prove that any of these
acts occurred at a particular time or place, only that the
defendants conspired to commit two of the predicate
acts. The instruction was correct.

C. Pinkerton Instruction
The defendants also contend the district court erred
by giving a Pinkerton instruction in the penalty phase of
trial when a similar instruction had not been given in
the guilt phase. The maximum penalty on a criminal
RICO charge depends on the penalties for the underlying
racketeering activity: the maximum sentence is 20 years
unless the RICO violation is “based on a racketeering
activity for which the maximum penalty includes life
imprisonment.” 18 U.S.C. § 1963(a). After the jury had
reached its verdicts of guilty on most charges, including
the RICO conspiracy charge, the district court instructed
the jury to determine whether the defendants had been
criminally involved in four of the murders included in
the indictment. Such a jury finding was necessary to
comply with the requirements of Apprendi v. New Jersey,
530 U.S. 466 (2002).
Nos. 09-1190, 09-1224, 09-1225, 51
09-1226, 09-1227 & 09-1251

To guide the jury in making these determinations,
the court gave the jury a pattern instruction based on
Pinkerton v. United States, 328 U.S. 640, 647-48 (1946): “A
conspirator is responsible for offenses committed by his
fellow conspirators if he was a member of the conspiracy
when the offense was committed and if the offense
was committed in furtherance of and as a foreseeable
consequence of the conspiracy.” The defendants argue
first that the Pinkerton instruction should have been
given, if at all, in the first guilt phase of the jury deter-
minations, and that giving the Pinkerton instruction
only in the second penalty phase risked broadening the
scope of the defendants’ criminal liability. We disagree.
Pinkerton does not define participation in a conspiracy.
It confers vicarious responsibility for acts of co-conspira-
tors, and the district court reasonably concluded that
such an instruction would be inappropriate in the
verdict phase. We have noted the need for caution in
using Pinkerton instructions in RICO conspiracy charges.
See United States v. Neapolitan, 791 F.2d 489, 505 n.7
(7th Cir. 1986), modified on other grounds by Brouwer
v. Raffensperger, Hughes & Co., 199 F.3d 961 (7th Cir.
2000), quoting U.S. Department of Justice, RICO: A
Manual for Federal Prosecutors, at 73-74 (1985) (“the combi-
nation of RICO and Pinkerton could lead to unwarranted
extensions of criminal liability”). Jury instructions for
RICO conspiracies are challenging enough without
Pinkerton. The district court exercised its discretion ap-
propriately here by separating the jury’s task into two
phases. A verdict of guilty did not require a determination
52 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

that a particular defendant participated in the full scope
of the Insane Deuces racketeering conspiracy, with all of
the murders, shootings, and drug deals. But once the jury
found the defendants guilty of the RICO conspiracy,
the maximum penalties they each faced depended on
whether the involvement of each in the conspiracy in-
cluded responsibility for murders or drug crimes serious
enough to authorize a life sentence. Each defendant
could be held responsible for the various predicate acts
charged, either as a direct participant, as an aider-and-
abetter, or under Pinkerton. In the penalty phase, the
Pinkerton instruction was appropriate.
The defendants also cite cases criticizing more
generally the use of special verdicts in criminal cases.
Benabe Br. at 51-52, citing United States v. Jackson, 542
F.2d 403, 412 (7th Cir. 1976); United States v. North, 910 F.2d
843, 911 (D.C. Cir.), modified on other grounds, 920
F.2d 940 (D.C. Cir. 1990). The cited cases did not address
the special problems that arise under Apprendi. The
district court’s approach here was a sound way
to address the problem of determining the maximum
penalties for these defendants.
Third, defendants argue that the Pinkerton instruction
violated Federal Rule of Criminal Procedure 30(a), which
requires a party to request jury instructions at the close
of the evidence unless the court specifies an earlier time.
The government did not request the Pinkerton instruc-
tion until after the jury had begun its deliberations on
the guilt phase. We find no error. Defendants have not
Nos. 09-1190, 09-1224, 09-1225, 53
09-1226, 09-1227 & 09-1251

cited any cases interpreting Rule 30 to impose the imprac-
tical requirement that all penalty-phase instructions
be resolved before closing arguments at the guilt phase
of a trial. The district court could reasonably defer the
phase-two instruction issues until after the jury delibera-
tions for phase one had begun. The district court did not
err in giving the Pinkerton instruction in the penalty
phase of the trial.

V. Providing Jury with Partial Transcripts
During its deliberations, the jury requested transcripts
of Orlando Rivera’s testimony from several specific
witnesses on particular days. Juarez objected. He argued
that the requested transcripts “unduly highlight some
evidence that was brought in” about him, and that the
court should provide the full transcript of cross-exam-
ination and direct testimony of those witnesses after
reading back the full transcripts in open court. The court
overruled Juarez’s objection and provided the jurors the
specific portions of the transcripts they requested along
with the following instruction:
You must . . . weigh all the trial evidence and not
just one particular portion of the trial. Also please
note that each of the witnesses’ direct testimony you
have requested was also cross-examined by the de-
fense. The entire testimony of each witness you have
identified can be made available to you at your writ-
ten request.
54 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

Juarez, joined by each of his co-defendants, appeals this
decision. Susinka writes separately to supplement the
arguments raised by Juarez in his brief. We review a
district court’s response to a jury question for abuse of
discretion. United States v. Danford, 435 F.3d 682, 687 (7th
Cir. 2006). Here again, we find no abuse of discretion.
The defendants argue that the court should have read
aloud in open court all of the testimony from each witness
in question, including cross-examination, and erred in
sending to the jury room only the portions of the testi-
mony that the jury requested. Juarez bases his argument
on the “possibility” that the jury might have placed
undue emphasis on a small part of the testimony and
failed to view the evidence as a whole. Susinka is a bit
more specific, arguing that one of the requested wit-
nesses was the only witness to link him to the February 23,
2002 shooting, so that permitting the jury to be exposed
to the transcript of his direct examination without cross-
examination must have been unduly prejudicial.
These arguments are speculative at best, and the de-
fendants’ concerns were addressed effectively by the
court’s instruction that the jury consider all the evidence,
not just one portion of the trial. We assume that the
jury followed the instructions it was given. See United
States v. Zahursky, 580 F.3d 515, 525-26 (7th Cir. 2009);
United States v. Ochoa-Zarate, 540 F.3d 613, 620 (7th
Cir. 2008).
This was a lengthy trial, followed by lengthy delibera-
tions. A hard-working jury, sifting through memories
Nos. 09-1190, 09-1224, 09-1225, 55
09-1226, 09-1227 & 09-1251

and notes about weeks of evidence, asked for specific
portions of the evidence. Responding to the request as
defendants now argue, by forcing jurors, judge, counsel,
and defendants to listen to a deadly recitation of days
of testimony that the jury did not ask for or need, would
have bordered on cruelty. The court properly exercised
its discretion by giving the jury exactly what it said it
needed, with appropriate cautions. The court did so after
weighing the unlikely possibility that the jury might
improperly overemphasize some testimony (in spite of
the court’s cautionary instruction) with the interest
of promoting efficient jury deliberations and not unnec-
essarily adding to the burden of an already heavily bur-
dened jury. We find no abuse of discretion.

VI. Jurors 79 and 384
During voir dire, the potential jurors were asked
whether they had ever applied for or held a job with the
federal government, whether they were familiar with
the Aurora area, whether they had any awareness of the
facts of the case, and whether they had any friends of
relatives who were involved in gangs. Neither Juror 79
nor Juror 384 indicated that they worked for the govern-
ment, would be prejudiced by any knowledge they had
of the Aurora area, or were familiar with the facts of the
case. Juror 384 had no friends or family involved in gang
activity. Juror 79, when asked that question, stated that
her nine-year-old child had been in a gang for two years,
until age eleven. No follow-up questions to her response
56 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

were asked during voir dire. Jurors 79 and 384 were
seated on the jury. After the trial began, the judge re-
peatedly asked the seated jurors whether anyone had
tried to talk to them about the case, whether they had
talked to anyone about the case, or whether they had
done any research outside the courtroom. Neither Juror 79
nor Juror 384 answered these inquiries affirmatively.
Nearly a month after the verdict was rendered, the
defendants raised several issues in the district court
related to the impartiality of Jurors 79 and 384. In large
part these issues were based on an affidavit from
Rachel Perez, who is a cousin of defendant Salazar and
the sister of defendant Steven Perez, who was tried
in the second trial. Ms. Perez attended the first trial
involving these appellants. After the verdicts, counsel
for the defense were made aware that Ms. Perez believed
that she recognized Jurors 79 and 384. In an affidavit,
she stated that she had worked with each of those jurors
at the post office in Aurora. She also said that she had
earlier worked with someone she believed to be Juror 79
at a company called BRK. She recalled in her affidavit
that she had had a conversation with Juror 79 at their
place of employment about the charges brought against
her brother and cousin, Perez and Salazar. Specifically,
in the fall of 2005, Ms. Perez agreed to lend her car
to Steven Perez, and when she went outside she encoun-
tered a female co-worker. When her brother arrived,
Ms. Perez introduced him to this person. Steven Perez
was very angry about something at that time, and the
female co-worker later described him to Ms. Perez as
Nos. 09-1190, 09-1224, 09-1225, 57
09-1226, 09-1227 & 09-1251

“crazy.” Approximately a week after this incident,
Steven Perez was arrested and charged, and Ms. Perez
told the co-worker about her brother’s arrest and said that
the newspapers were reporting that Salazar would also
be charged. In her affidavit, Ms. Perez attested that the
female co-worker with whom she had had these contacts
and conversations several years earlier was Juror 79.
Two other issues arose from things Juror 79 said to
the foreperson. On May 30, 2008, the trial court held a
hearing at which it questioned the jury foreperson. The
foreperson said that Juror 79 had informed her that her
young son, who had been involved with a gang from
age nine to eleven, had been a member of the Insane
Deuces. Juror 79 also had said that she “knew of” one
of the defendant’s family members who attended court,
and that she had seen some of those family members
while shopping and on the train coming to or leaving
court over the course of the trial. Juror 79 told
the foreperson that she was concerned about seeing
the defendants’ family members on the train and was
“a little frightened.”
The defendants argue that Jurors 79 and 384 failed to
honestly answer material questions at voir dire, and that,
if the defendants had known the truth, Jurors 79 and
384 would have been challenged for cause. The de-
fendants also argue that the trial court erred in denying
Salazar’s request that it hold a hearing at which the
two jurors could be thoroughly questioned regarding
their alleged omissions. We review a trial court’s deter-
58 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

mination that a party has failed to show a juror was
dishonest at voir dire for an abuse of discretion. We also
review a trial court’s decision to deny a motion for a new
trial on grounds of juror bias for an abuse of discretion.
See Arreola v. Choudry, 533 F.3d 601, 607 (7th Cir. 2008).
Neither the allegations raised in Rachel Perez’s af-
fidavit nor the foreperson’s testimony required that the
trial court hold a hearing so that Jurors 79 and 384 could
be questioned about any preexisting, intrinsic bias.
“[D]ue process means a jury capable and willing to
decide the case solely on the evidence before it, and a trial
judge ever watchful to prevent prejudicial occurrences
and to determine the effect of such occurrences when
they happen.” Oswald v. Bertrand, 374 F.3d 475, 478 (7th
Cir. 2004), quoting Smith v. Phillips, 455 U.S. 209, 217
(1982). While due process may require a hearing to deter-
mine whether extraneous contacts may have affected a
jury’s ability to be fair, the standard applies only to
prejudicial extraneous contacts, not to preexisting juror
bias. United States v. McClinton, 135 F.3d 1178, 1186 (7th
Cir. 1998); Artis v. Hitachi Zosen Clearing Inc., 967 F.2d
1132, 1141 (7th Cir. 1992). A post-verdict inquiry into
intrinsic juror influences is almost never justified. See
Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107,
117-20 (1987) (post-verdict discovery of alcohol and
drug use by members of the jury was an intrinsic in-
fluence not requiring a hearing under the Sixth Amend-
ment: “It is not at all clear that the jury system could
survive such efforts to perfect it.”); Arreola, 533 F.3d at 606
(in prisoner’s suit alleging that doctor’s treatment of his
Nos. 09-1190, 09-1224, 09-1225, 59
09-1226, 09-1227 & 09-1251

ankle injury constituted an Eighth Amendment viola-
tion, juror’s post-trial revelation of failure to disclose
a prior ankle injury in voir dire was an intrinsic influence
not requiring evidentiary hearing), citing Marquez v. City
of Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005) (“[A]
juror’s personal experience . . . does not constitute ex-
traneous prejudicial information.”) (internal quotation
omitted). The various bases on which the defendants
brought their post-verdict contentions that Jurors 79 and
384 may have harbored secret bias were intrinsic, not
extrinsic, and no hearing was required.
The defendants also contend that they are entitled to a
new trial because they believe that Jurors 79 and 384 lied
about these issues at voir dire. To obtain a new trial, the
defendants must first demonstrate that Juror 79 or 384
failed to answer honestly a material question on voir dire,
and then further show that a correct response would
have provided a valid basis for a challenge for cause.
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548, 556 (1984).
As for Juror 79, the trial court did not find that she
withheld any information that might have indicated a pre-
existing bias, and on appeal, the defendants have not
presented us with any reason to disturb that conclusion.
Rachel Perez believed that Juror 79 had worked with her
at BRK and at the Aurora post office and that she had
talked with her about her brother’s and cousin’s arrest
and indictment. According to her jury questionnaire,
Juror 79 had no history of employment with BRK or
60 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

with the United States Postal Service. Also, the foreperson
testified that Juror 79 had said that she “knew of” one
of the defendants’ family members who attended the
trial (correcting the court to clarify that Juror 79 had not
said that she knew someone in the courtroom, only that
she knew of someone) contradicting Ms. Perez’s account
that she and Juror 79 had worked together at two dif-
ferent jobs and that they were friendly with one another.
It was entirely within the trial court’s discretion to con-
clude that Ms. Perez was mistaken, that Juror 79
did not have a history of employment with the United
States Postal Service, and that the contacts that Ms. Perez
recounted did not happen, at least not with Juror 79.8
We see no reason to overturn that finding on appeal.
We confess that our eyebrows went up when we read
that Juror 79’s young son had been a member of the
Insane Deuces. But the record shows that Juror 79 an-
swered correctly during voir dire that her son had been
involved in a gang. She did not say that it was the Insane
Deuces, but nobody asked her. The defense counsel did
not ask any follow-up questions or ask the judge to ask
them. By failing to do so, they lost their ability to seek

8
The district judge also was rightly suspicious of the timing
of Ms. Perez’s revelations. Ms. Perez had attended the trial,
and her affidavit did not contain the type of information that
would have been discovered only after the verdict. Yet,
Ms. Perez did not apprise defense counsel of her suspicions
concerning Jurors 79 and 384 until after the verdict had
been rendered.
Nos. 09-1190, 09-1224, 09-1225, 61
09-1226, 09-1227 & 09-1251

a new trial on this basis. See McDonough, 464 U.S. at 550
n. 2; United States v. Arocho, 305 F.3d 627, 635 (7th Cir.
2002) (defense counsel’s failure to follow-up on prospec-
tive juror’s answer that he knew a potential witness
“in passing” would not allow counsel to turn their misun-
derstanding of vague answer into a deliberate lie by
juror), superseded by statute on other grounds, citing
Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1142
(7th Cir. 1992) (where juror revealed in voir dire that he
had been involved in union affairs, party’s failure to
question juror further as to union involvement until
after unfavorable verdict looked like “sandbagging”).
We are also not troubled that Juror 79 reported seeing
members of the defendants’ families on her way to and
from the courthouse and outside of the courtroom in
her daily life. The defendants make no allegation that
she had any interaction or contact with these family
members. When the trial judge asked the jury if anyone
had contacted them to speak about the case, Juror 79
was under no duty to report that she had merely recog-
nized members of the defendants’ families outside the
courtroom. Nothing suggested to the trial court, and
nothing suggests to us on appeal, that Juror 79 inten-
tionally withheld any information or failed to honestly
answer these repeated inquiries by the trial court, or that
she became biased against the defendants because of
these random encounters.
Returning to Juror 384, the defendants have not identi-
fied any voir dire question related to Aurora that she
62 Nos. 09-1190, 09-1224, 09-1225,
09-1226, 09-1227 & 09-1251

failed to answer truthfully. Although she said in her
written responses that she had worked for the United
States Postal Service in Aurora, the district court sur-
mised that Juror 384 felt she did not need to indicate
that she had worked for the postal service during voir dire
because she had already said as much in her written
questionnaire. Such a mistake by prospective jurors is
both common and understandable. Nothing suggests
that Juror 384 intentionally omitted this information
during the face-to-face questioning. She certainly did not
conceal the information. Defense counsel could have
pursued further both the written response and the
silence in court; they did neither. Defendants also have
not established, as they must, that if they had known of
Juror 384’s postal employment, the information would
have been grounds to challenge her for cause. See Dennis
v. United States, 339 U.S. 162, 171-72 (1950) (government
employees are not barred from serving on a jury in a
criminal case); United States v. Polichemi, 219 F.3d 698,
704 (7th Cir. 2000) (government employment is not suffi-
cient to excuse a juror for cause). After all, several
jurors with connections to state and federal government
agencies served on this jury. Here again, we find no error.

Conclusion
In our companion order, we modify Susinka’s sentence
to impose a term of three years of supervision upon
his release from prison. In all other respects, we affirm
the convictions and sentences of defendants Bolivar
Nos. 09-1190, 09-1224, 09-1225, 63
09-1226, 09-1227 & 09-1251

Benabe, Julian Salazar, Juan Juarez, Christian Guzman,
Stephen Susinka, and Fernando Delatorre.

8-18-11