In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2617
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JUAN AMAYA,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12‐cr‐710 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED SEPTEMBER 9, 2015 — DECIDED JUNE 3, 2016
____________________
Before EASTERBROOK, KANNE, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. For a time, Juan Amaya was a
ranking officer in the Latin Kings, a vicious and well‐orga‐
nized street gang whose structure and operations we have
previously described in detail. See generally United States v.
Garcia, 754 F.3d 460, 465–68 (7th Cir. 2014). A jury convicted
2 No. 14‐2617
him of drug‐related crimes (distributing cocaine, possessing
cocaine with the intent to distribute it, and carrying a gun in
furtherance of his cocaine distribution) and organized‐gang‐
related crimes (conspiring to conduct racketeering activity
and aiding and abetting a violent crime in aid of racketeering).
On the gun count and the two racketeering counts, Amaya
challenges the sufficiency of the government’s evidence, but
we find that the evidence sufficiently supported the jury’s ver‐
dict.
Amaya also challenges the admission of an out‐of‐court
statement made by an undercover law‐enforcement agent,
but the statement was not hearsay because it was not offered
for its truth, and its admission was not unduly prejudicial. Fi‐
nally, Amaya argues that the admission of an out‐of‐court
statement made by a confidential informant violated Amaya’s
constitutional right to confront the witnesses against him. But
the statement was not the type of “testimonial” statement cov‐
ered by the Sixth Amendment’s Confrontation Clause. For
these reasons, we affirm Amaya’s convictions.
I. BACKGROUND
This case arose out of an investigation into the Latin Kings
street gang, an organization whose activities involve murder,
assault, extortion, and drug dealing.1 The government con‐
tended that Amaya was a long‐time member of the gang who
rose through the ranks to become a regional leader. There was
1 Given the procedural posture, we view the evidence in the light most
favorable to the government. Musacchio v. United States, 136 S. Ct. 709, 711–
12 (2016). So we describe the facts assuming the jury believed the govern‐
ment’s evidence. That said, Amaya admits he was a Latin King and has
not disputed significant details about the gang’s structure or operation.
No. 14‐2617 3
evidence concerning the gang in general (and specifically as
it operated in Amaya’s territory), and evidence concerning
Amaya’s individual conduct.
A. Gang Structure
The Latin Kings operated in various parts of Illinois, in‐
cluding Chicago. The gang was highly organized and hierar‐
chical, with its own constitution, manifesto, and code of con‐
duct, as well as its own colors, handshake, salute, emblems,
signs, flag, and territories. Territories were divided into “re‐
gions,” which were further divided into “sections” (some‐
times called “chapters”). The highest‐ranking member of a
section is the “Inca,” and the highest‐ranking member of a re‐
gion is the “Regional Inca.”
The “26th Street Region” operated in the southwest Chi‐
cago neighborhood known as Little Village. The region had
twenty‐four sections, including the “Sawyer and 22nd Sec‐
tion,” which Amaya had joined by sometime in 2005. He rose
to Regional Inca by early February 2008, and kept that posi‐
tion until May or June 2008. In that position, Amaya was in
charge of about one thousand gang members. As Regional
Inca, Amaya was outranked by only the “Supreme Regional
Inca” (who oversaw multiple regions) and the head of the en‐
tire organization, the “Corona.”
Members were required to pay “dues,” which allowed the
gang to buy guns, ammunition, cell phones, and police scan‐
ners, among other things. As Regional Inca, Amaya ensured
that dues were paid. Dues were collected at the chapter level
and some of the money was passed up to Amaya at the re‐
gional level. As Regional Inca, Amaya announced a plan to
4 No. 14‐2617
redistribute dues money so that each chapter had adequate
resources, even those with small memberships.
B. Gang Rules and Practices
As Regional Inca, Amaya was responsible for enforcing
applicable rules, which came from the gang’s manifesto, its
constitution, and the 26th Street Region’s local rules. A pri‐
mary rule was that members were required to protect the
gang’s territory from its rivals, often through violence. For ex‐
ample, from Thursday night through Sunday morning, the
26th Street Region was on “mandatory bust out.” That meant
that members patrolled their territory, armed with guns, and
were required to shoot to kill any trespassing member of a ri‐
val gang. Members were required to carry guns when they
loitered in their own territory and also when they traveled to
rival territory. While Amaya was Regional Inca, gang policy
dictated that if a Latin King was shot, the gang was required
to conduct multiple retaliatory drive‐by shootings. Around
April 2008, while Amaya was Regional Inca, he bragged that
26 rival gang members had been shot during his tenure.
The rules also required violence against fellow Latin
Kings. New recruits were initiated into membership through
beatings. The rules provided for mandatory beatings for any
member who broke the rules (these beatings were called “vi‐
olations”). Although unwritten, there was a rule requiring
that present or former gang members be killed on sight if they
were known to have cooperated with law enforcement.
Given the mandatory shooting requirements, discussed
above, it is not surprising that there were also rules governing
what to do with guns that had been used in shootings. In the
No. 14‐2617 5
26th Street Region, if a gun was used in a shooting that re‐
sulted in a death, the rules required the gun be disposed of.
The local chapter would try to sell the gun to a suburban chap‐
ter, would throw it in the river, or would “chop it up” (physi‐
cally destroy it piece by piece).
C. Amaya’s Individual Conduct
1. Punishment of Fellow Latin Kings
The rules prohibited stealing within gang territory. But
around April 2008, two members stole from a home in the
26th Street Region. (To make matters worse, it was the home
of the Corona’s girlfriend.) Because the home was within
Amaya’s region, he was charged with enforcing the punish‐
ment. The Corona initially ordered severe beatings in which
any weapon could be used over an unlimited period of time,
but Amaya believed that was too harsh, so he recommended
that the thieves’ hands be smashed instead—a recommenda‐
tion the Corona accepted.
In a meeting that was secretly audio and video recorded,
Amaya instructed that the thieves’ hands be smashed with a
hammer or a brick, rather than the baseball bat that another
member had initially selected. The first thief submitted to the
vicious beating without resistance. Amaya picked the specific
gang member to carry out the attack and waited outside the
room as it happened; he received a report when it was com‐
pleted. Later that same day, the second thief was beaten, again
at Amaya’s direction, and again with Amaya receiving a re‐
port upon completion.
6 No. 14‐2617
2. Extortion of Other Criminals
While Amaya was a Latin King, including while he was a
Regional Inca, the gang extorted “miqueros”—people ille‐
gally selling fake identification cards. The miqueros paid the
gang a monthly fee, which bought them protection and the
privilege of operating a monopoly within gang territory. Re‐
fusal to pay the fee led to beatings.
3. Drug Trafficking
The Latin Kings’ constitution expressly forbade selling
certain drugs, including heroin, LSD, and crack cocaine. Ap‐
plying (perhaps unknowingly) the canon expressio unius est ex‐
clusio alterius, the gang interprets the constitution to permit
selling powder cocaine, so members did so (regulated by the
gang). Gang members who could not repay their debts were
prohibited from accepting drugs from other members on
credit. Disputes among members arising out of drug sales
were resolved by gang leadership. The leadership of the 26th
Street Region allowed members who were actively involved
in drug dealing to be excused from the “mandatory bust outs”
as long as they paid extra dues by sharing some of their drug
profits.
Amaya was removed as Regional Inca in May or June of
2008. (He was suspected of conspiring to kill the Corona, but
those suspicions were eventually ruled unfounded.) But he
remained a gang member in good standing and on September
28 and November 3, 2010, he sold cocaine to Sergeant Sean
Koren, an undercover law‐enforcement agent posing as a
Latin King from out of town. The agent was accompanied by
two confidential informants who were Latin Kings.
No. 14‐2617 7
For both deals, Amaya arranged to meet at an alley in rival
gang territory. The deals took place in Sergeant Koren’s car
and were audio and video recorded (though the September
video is too dark to be useful). Both deals began with a hand‐
shake and greeting (“King Love”) that identified the parties
as Latin Kings. During the September deal, Amaya said, “they
all right here” and “I be waiting for their asses,” which the
government contended referred to rival gang members in the
vicinity. Sergeant Koren testified that as Amaya made these
statements, he brandished a gun and pointed it down the al‐
ley. Amaya then sold Koren about half an ounce of cocaine
and got out of the car.
At the November meeting, Amaya sold Koren about an
ounce of cocaine. One of the informants commented that there
were members of a rival gang in the alley, to which Amaya
responded, “They live right here, dog. Remember? I pulled
out that other pistol. That was you guys, right?” Amaya said
that the rival gang members “use this gang‐way a lot.” Ser‐
geant Koren asked Amaya if he had more guns, to which
Amaya responded that he had gotten rid of the one he had
displayed back in September. Amaya said that some gang
members had used the gun, so he “told them dump it. Chop
it up.” Amaya then asked Koren and the informants if they
knew anyone that could get him handguns.
D. Amaya’s Prosecution
Under a superseding indictment, Amaya was prosecuted
for drug crimes (distributing cocaine and possessing cocaine
with the intent to distribute it), a gun crime (possessing a gun
in furtherance of cocaine distribution), and racketeering
crimes (conspiring to participate in racketeering and aiding
8 No. 14‐2617
and abetting a violent assault to maintain his position in a
racketeering enterprise).
Amaya pleaded not guilty to all charges. At trial, the gov‐
ernment introduced audio and video recordings as well as
testimony from Sergeant Koren, another law‐enforcement
agent who witnessed the drug deals, a special investigator,
and two cooperating Latin Kings. The jury found Amaya
guilty on all counts and the court sentenced him to 420
months in prison.
II. ANALYSIS
Amaya challenges the sufficiency of the evidence as to the
gun‐possession conviction and the two racketeering‐related
convictions. To resolve those challenges, we view the evi‐
dence “in the light most favorable to the government” and we
will “overturn the verdict only when the record contains no
evidence, regardless of how it is weighed, from which the jury
could find guilt beyond a reasonable doubt.” United States v.
Morales, 655 F.3d 608, 634 (7th Cir. 2011) (citation and quota‐
tion marks omitted).
As to the gun charge, Amaya also raises two evidentiary
issues. First, he argues that admission of certain hearsay evi‐
dence was unduly prejudicial—an issue we review for an
abuse of discretion. United States v. Villegas, 655 F.3d 662, 672
(7th Cir. 2011); United States v. Bonner, 302 F.3d 776, 780 (7th
Cir. 2002). Second, he argues that the admission of a confiden‐
tial informant’s out‐of‐court statement violated the Confron‐
tation Clause of the Sixth Amendment—an issue we review
de novo. United States v. Adams, 628 F.3d 407, 416 (7th Cir.
2010). We will not overturn a conviction due to a hearsay or
No. 14‐2617 9
Confrontation Clause error if the error was harmless. United
States v. Nicksion, 628 F.3d 368, 375 (7th Cir. 2010).
A. Gun Possession
Amaya argues that the evidence was insufficient to show:
(1) he possessed a gun; or (2) if he possessed a gun, he did so
“in furtherance of” a drug crime. He also argues that his con‐
viction was based on hearsay statements, admitting those
statements was prejudicial, and admitting one of those state‐
ments violated his constitutional right to confront the wit‐
nesses against him.
1. Sufficient Evidence of Amaya’s Gun Posses‐
sion
Sergeant Koren testified that Amaya carried a gun to the
September drug deal. As Amaya concedes, the jury was enti‐
tled to believe this testimony. But Amaya says that no reason‐
able jury could have concluded beyond a reasonable doubt
that the gun was real, and Amaya can’t be convicted for carry‐
ing a fake gun. Amaya is right that 18 U.S.C. § 924(c) requires
a real gun. 18 U.S.C. § 921(a)(3) (“firearm” in § 924(c) means a
weapon “which will or is designed to or may readily be con‐
verted to expel a projectile by the action of an explosive”);
United States v. Westerdahl, 945 F.2d 1083, 1088 (9th Cir. 1991)
(“Possession of a toy or replica gun cannot sustain a convic‐
tion under § 924(c).”); cf. United States v. Jones, 222 F.3d 349,
351–52 (7th Cir. 2000) (analyzing whether evidence was suffi‐
cient to show the defendant’s gun was not a “BB” gun). So the
question is whether the government presented sufficient evi‐
dence from which the jury could have concluded beyond a
reasonable doubt that Amaya’s gun was real. We conclude the
answer is yes.
10 No. 14‐2617
First, there is the obvious fact that Amaya was an admitted
member of a violent street gang. Consistent with the gang
rules, former members Milton Shanna and Ruben Caquias
testified that Latin Kings carried real guns, not fake ones, and
were required to do so when in the territory of a rival gang (as
Amaya was for the September meeting). It would not have
been unreasonable for the jury to think it unlikely that a Latin
King carried a fake gun to a drug deal in rival territory be‐
cause doing so seems pointless, if not reckless.
Further, Sergeant Koren—who testified that Amaya’s gun
“had a slide and a magazine that went in the bottom,” and
“looked to have the weight and feel of a handgun”—was not
a lay witness. He was a veteran law‐enforcement officer with
experience investigating drugs, gangs, and guns. He testified
that the gun was displayed less than one foot from his face
and that he was positive it was a real gun. Koren also testified
that Amaya pointed the gun toward the alley, referenced rival
gang members in the area, and said “they all right here,” and
“I be waiting for their asses,” suggesting the gun would be
used if necessary.
Then, during the November deal, Amaya was recorded
talking about the gun he had displayed to Sergeant Koren
during the September deal.2 He said that he had gotten rid of
it because some “boys in the hood” had “used it.” Amaya ar‐
gues that “used” does not necessarily mean fired, which
would prove the gun was real; “used” could mean “simply
2 Amaya argues that the November statements do not specifically re‐
fer to a gun displayed on September 28, 2010, so they only support a finding
that Amaya had a pistol “at some time in the past.” But as Amaya’s coun‐
sel admitted at oral argument, there was no other prior encounter between
Amaya and Sergeant Koren.
No. 14‐2617 11
holding a gun for amusement, or brandishing it for protec‐
tion, or pulling the trigger.” But that ignores the evidence—
testimony from Sergeant Koren, Milton Shanna, and Ruben
Caquias—that Latin Kings specifically got rid of guns that
had been used in shootings, so that no gang member in the re‐
gion would be caught with such a gun. Finally, after having
mentioned that he had gotten rid of the gun, Amaya asked
Koren and the two informants if they knew anyone that could
get him handguns—he didn’t ask for replacement fake guns.
Cumulatively, and viewed in the light most favorable to
the government, this evidence supports the jury’s conclusion
that Amaya had a real gun. Cf. United States v. Lawson, 810 F.3d
1032, 1040 (7th Cir. 2016) (lay witness testimony about gun’s
appearance, along with testimony that possessor said “I have
a gun,” sufficient to support jury conclusion that gun was
real); United States v. Moore, 25 F.3d 563, 568 (7th Cir. 1994) (lay
witness testimony about guns’ appearances and about the de‐
fendants’ actions in emptying and cleaning the guns, along
with video depicting the guns, sufficient to support jury con‐
clusion that guns were real).
2. Sufficient Evidence of Possession “In Further‐
ance of” Drug Crime
Amaya’s conviction under § 924(c) also requires some con‐
nection between his gun and his drug crime. 18 U.S.C. § 924(c)
(criminalizing possessing guns “in furtherance of” drug
crimes); United States v. Eller, 670 F.3d 762, 765 (7th Cir. 2012)
(“The ‘in furtherance of’ element of § 924(c) requires that the
weapon further, advance, move forward, promote or facilitate
the drug‐trafficking crime, and that the possessed gun further
a drug‐trafficking offense by providing the dealer, his stash,
or his territory with protection.”); United States v. Castillo, 406
12 No. 14‐2617
F.3d 806, 824 (7th Cir. 2005) (“924(c)(1)(A) was intended to
reach weapons that actually facilitate crimes and not those in‐
nocently possessed in the vicinity”).
Amaya argues that the evidence was insufficient to con‐
nect his gun to drug trafficking. When analyzing such a chal‐
lenge, our role “is limited to ensuring that a valid legal theory
supports the conviction and that there is some evidence from
which a rational jury could find in favor of that legal theory.”
United States v. Duran, 407 F.3d 828, 842 (7th Cir. 2005). One
such “theory” is that gun possession furthers drug trafficking
when a drug dealer possesses the gun to protect himself, his
drugs, or his drug proceeds during and after a sale. See Eller,
670 F.3d at 765; United States v. Huddleston, 593 F.3d 596, 602
(7th Cir. 2010); Duran, 407 F.3d at 840; United States v. Lomax,
293 F.3d 701, 705 (7th Cir. 2002). To determine whether this
theory is supported by evidence, it can be useful to consider
certain factors, including: “the type of drug activity that is be‐
ing conducted, accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the status of the pos‐
session (legitimate or illegal), whether the gun is loaded,
proximity to drugs or drug profits, and the time and circum‐
stances under which the gun is found.” Huddleston, 593 F.3d
at 602. While these factors may be useful, they are not dispos‐
itive and are not to be applied rigidly; instead, “we are guided
primarily by common sense.” Id.; see also Castillo, 406 F.3d at
815; Duran, 407 F.3d at 840.
Amaya notes that there was no evidence that the gun was
loaded. He also argues that the gun could not have furthered
the September drug deal because that deal was among
friendly fellow gang members and outside of public view, so
no participant would have felt endangered. Amaya admits
No. 14‐2617 13
that he carried the gun for protection against an attack from
rival gang members, but argues that any such attack would
have been prompted only by his membership in the Latin
Kings, not by his drug sales in rival territory. Such needle‐
threading is misplaced at this stage of the case. We view the
evidence in the government’s favor and we “will overturn the
verdict only when the record contains no evidence, regardless
of how it is weighed, from which the jury could find guilt be‐
yond a reasonable doubt.” Morales, 655 F.3d at 634. And the
record contains plenty of evidence from which a jury could
have found Amaya guilty.
First, Amaya’s gun was a handgun, which “easily could be
concealed and carried to drug transactions.” Huddleston, 593
F.3d at 602. Moreover, Amaya actually did carry it with him to
a drug transaction, and we have held that “a fact finder is cer‐
tainly entitled to come to the common‐sense conclusion that
when someone has both drugs and a firearm on their person,
the gun is present to further drug trafficking.” Lomax, 293 F.3d
at 706; Duran, 407 F.3d at 841 (“[J]urors are entitled to consider
that drug dealers possess guns for protection to further drug‐
trafficking offenses.”). See also Huddleston, 593 F.3d at 602
(“[T]he drug activity at issue—distribution—might reasona‐
bly call for the use of a weapon for protection, both during the
drug deals and afterward to protect the remaining stash and
profits.”). Finally, while conducting his drug sale, Amaya
pointed the gun toward the alley, referenced rival gang mem‐
bers in the area, and said “they all right here,” and “I be wait‐
ing for their asses,” which a jury could have concluded indi‐
cated Amaya’s willingness to use the gun to protect his drugs
or money. This evidence, viewed in the government’s favor,
adequately supports the jury’s verdict.
14 No. 14‐2617
3. Not Abuse of Discretion to Admit Statements
Made After Amaya Exited Car
i. Relevant Facts
The September drug deal was audio recorded. (There is
video too but the equipment wasn’t suitable for nighttime re‐
cording, so nothing can be seen.) While Amaya was in the car,
Sergeant Koren did not say anything about Amaya having a
gun. But as soon as Amaya left, Koren said, “Yea. Mother
f***er had a pistol,” to which an informant responded, “That
was a big ass pistol,” prompting Koren to respond, “Hell
yea.” Before trial, Amaya moved to exclude these statements
and the government agreed not to introduce them.
At trial, Sergeant Koren testified that Amaya brandished
his gun less than a foot from Koren’s face. Amaya’s lawyer
thought the jurors might not believe Koren if they knew that
he didn’t say anything about a gun while Amaya was in the
car. (Counsel’s theory was that if Amaya really displayed a
gun, Koren would have said something immediately, because
he would have been fearful and because he would want to
prompt Amaya to say something incriminating while he was
being recorded.) So on cross‐examination, the following testi‐
mony was elicited:
Q: And yet, despite the fact that you are
aware that your vehicle is equipped with
recording equipment, you don’t say any‐
thing about the gun; is that right?
A: Not at that instant, no.
Q: At that instant, when there is a firearm
brandished a foot from your head, you
don’t say, “Hey, that’s a big gun,” do you?
No. 14‐2617 15
A: Not at that instant, no.
At a sidebar, the government contended and the judge
concluded that Amaya’s lawyer had “opened the door” to
what was said as soon as Amaya left the car. So the following
exchange occurred on redirect:
Q: What is the first thing you said when the
defendant stepped out of that car?
A: I said, “Yeah. Motherf***er had a pistol.”
Q: What did the [informant] say in re‐
sponse?
A: He said, “That was a big‐ass pistol.”
…
Q: Why did you say that?
A: It was a significant event. It’s just—you
know, after he got out of the car, it was
like, take a deep breath, and that’s what
came out of my mouth.
The moments leading up to the exchange
of $380 for a half‐ounce of cocaine, he
pulls out a gun. For a split second I
wasn’t sure if I was being robbed or what
was going on. So that’s the first thing that
blurted out of my mouth when he got out
of the car.
Q: You said, “take a deep breath.” What
were you feeling at that point?
16 No. 14‐2617
A: I was scared. I mean, there was a gun
from a gang member within inches of my
face.
Notably, Sergeant Koren was not asked on redirect about
his response (“Hell Yea.”) to the informant’s statement, but
that response came in when the government played the audio
tape shortly after Koren’s testimony.
ii. Analysis
The district court concluded that the post‐exit statements
were admissible because Amaya had “opened the door.” As
we explained in Villegas:
When a party opens the door to evidence that
would be otherwise inadmissible, that party
cannot complain on appeal about the admission
of that evidence … . However, where the rebut‐
tal evidence does not directly contradict the ev‐
idence previously received, or goes beyond the
necessity of removing prejudice in the interest
of fairness, it is within the district court’s discre‐
tion to deny its admittance. Indeed, the open
door doctrine’s soundness depends on the spe‐
cific situation in which it is used and thus calls
for an exercise of judicial discretion.
655 F.3d at 672 (citations and quotation marks omitted).
Amaya’s lawyer attacked the credibility of Sergeant
Koren’s testimony that Amaya displayed a gun, making
Koren fearful. Counsel painted that story as implausible,
given that Koren did not say anything about a gun at the in‐
stant it was allegedly displayed. It was not an abuse of discre‐
No. 14‐2617 17
tion for the district court to conclude that this line of question‐
ing opened the door to evidence that both Koren and the in‐
formant did say something, shortly after the gun was displayed
and Amaya exited the car.3
Next, concerning the informant’s statement (but not
Koren’s), Amaya argues that admitting the statement violated
the Confrontation Clause of the Sixth Amendment because
the informant did not testify at trial. The Confrontation
Clause provides that “[i]n all criminal prosecutions, the ac‐
cused shall enjoy the right … to be confronted with the wit‐
nesses against him.” U.S. Const. amend. VI. “Witnesses” are
those who “bear testimony,” Crawford v. Washington, 541 U.S.
36, 51 (2004), so that “[a]dmitting a witness’s out‐of‐court tes‐
timonial statements when that witness is available to testify
violates the accused’s Sixth Amendment right of confronta‐
tion, but not when those statements are offered for a purpose
other than establishing the truth of the matter asserted.”
United States v. Gaytan, 649 F.3d 573, 580 (7th Cir. 2011) (quo‐
tation marks omitted). So we must ask whether the inform‐
ant’s statement was offered for its truth; if so, we must also
ask whether it was “testimonial.”
The government argues that the informant’s statement—
”That was a big‐ass pistol”—wasn’t offered for its truth, it was
offered merely to put Sergeant Koren’s response—”Hell
yea”—in context. But as we explained in United States v. Smith,
3 Amaya’s appellate counsel, who was also his trial counsel, informed
us at oral argument that she knew she was “very close to the line,” and
that she made a strategic decision to proceed, without asking for a sidebar,
despite the known risk of opening the door.
18 No. 14‐2617
816 F.3d 479, 481–82 (7th Cir. 2016), whether a statement is of‐
fered for “context” is beside the point—the relevant question
is whether the statement is offered for its truth (and the an‐
swer to that question can be yes, even if the statement pro‐
vides context for some other, admissible statement). An exam‐
ple from Smith—a public‐corruption case—is helpful. “[In‐
formant]: Last week I paid you $7,000 for a letter that my cli‐
ent will use to seek a grant for a daycare center. Do you re‐
member? [Defendant]: Yes.” Id. at 482. The defendant’s state‐
ment is admissible, Fed. R. Evid. 801(d)(2)(A), but the inform‐
ant’s is not. Though it puts the defendant’s statement in con‐
text, it only does so (and is only relevant) if the informant was
speaking the truth. The case before us is similar: the inform‐
ant’s ”That was a big‐ass pistol” only puts Koren’s “Hell yea”
in context and is only relevant if the informant was speaking
the truth.
We also note that the government’s “context” argument is
strange given that the prosecutor elicited the informant’s
statement but did not elicit Koren’s response. Nothing could
put Koren’s “Hell yea” in context for the jury because the jury
didn’t know those words had been uttered. And even if we
accept the government’s explanation—that the informant’s
statement was introduced to provide context for Koren’s re‐
sponse, but the prosecutor simply forgot to introduce the re‐
sponse—we would have a hard time understanding why
“Hell yea” needed to be introduced and put in context. The
introduction of Koren’s initial statement (“Yea. Mother f***er
had a pistol.”) adequately undercut Amaya’s lawyer’s infer‐
ence that Koren had remained silent, suggesting no gun ex‐
isted. “Hell yea” served no additional purpose. Cf. Adams, 628
F.3d at 417 (finding statement offered for truth where “there
was no need to introduce the statements for context”).
No. 14‐2617 19
In any event, we find that the Confrontation Clause was
not violated because the informant’s statement was not “testi‐
monial” (an issue on which the parties’ briefs are silent). A
statement is testimonial “when the circumstances objectively
indicate that … the primary purpose … is to establish or prove
past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 547 U.S. 813, 822 (2006); Gaytan, 649 F.3d
at 580; (statement is testimonial if made “in anticipation of or
with an eye toward a criminal prosecution”). “Where no such
primary purpose exists,” the Confrontation Clause is not im‐
plicated. Michigan v. Bryant, 562 U.S. 344, 359 (2011).4 We de‐
termine the “primary purpose” of a statement by conducting
“[a]n objective analysis of the circumstances of an encounter
and the statements and actions of the parties to it.” Id. at 360.
“[T]he relevant inquiry is not the subjective or actual purpose
of the individuals involved in a particular encounter, but ra‐
ther the purpose that reasonable participants would have
had, as ascertained from the individuals’ statements and ac‐
tions and the circumstances in which the encounter oc‐
curred.” Id.
In Gaytan, we had “no doubt” that an informant’s state‐
ments were testimonial where they were made during a con‐
versation with the defendant that the informant knew was be‐
ing recorded to obtain evidence against the defendant. 649
4 Dealing with the situation before it, the Davis court wrote that a state‐
ment is non‐testimonial when its primary purpose was “to enable police
assistance to meet an ongoing emergency.” 547 U.S. at 822. But in Bryant,
the Court clarified that a statement is non‐testimonial so long as it was not
“procured with a primary purpose of creating an out‐of‐court substitute
for trial testimony,” and that “there may be other circumstances, aside
from ongoing emergencies,” where that is the case. 562 U.S. at 358; see also
Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015).
20 No. 14‐2617
F.3d at 579. The informant was wired and specifically sent by
law enforcement to engage in a controlled buy of narcotics
from the defendant. A reasonable person in that position
would have known that the conversation was likely to be used
to prosecute the defendant, so the statements were testimo‐
nial.
The situation here is different. A reasonable informant
would not have said, ”That was a big ass pistol,” to prompt
Amaya into saying something admissible, because Amaya
had already left the car. Cf. Bryant, 562 U.S. at 365–66 (a single
conversation can “evolve” or “transition” between testimo‐
nial and non‐testimonial) (citing Davis, 547 U.S. at 828). Nor
would a reasonable informant have been trying to inform Ser‐
geant Koren that Amaya had a gun, because Koren witnessed
everything that the informant did. Perhaps the informant
sought to lighten the tense mood; or perhaps, like Koren, he
simply “blurted out” a statement about a startling event. Cf.
Crawford, 541 U.S. at 51 (“An accuser who makes a formal
statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance
does not.”); Bryant, 562 U.S. at 361–62 (comparing “excited ut‐
terances” in hearsay law to non‐testimonial statements); id. at
377 (the informality of a conversation weighs against finding
a statement is testimonial); Clark, 135 S. Ct. at 2180 (same). We
need not say with certainty what the purpose was; indeed,
there may have been “no discernible purpose at all.” Clark,
135 S. Ct. at 2182. Because our objective analysis confirms that
the informant’s statement was not made to “establish or prove
past events,” Davis, 547 U.S. at 822, it was non‐testimonial and
there was no Confrontation Clause violation. The government
argued that any Confrontation Clause violation was harmless
because of the overwhelming evidence that Amaya had a gun.
No. 14‐2617 21
Amaya did not respond to that argument. In any event, be‐
cause we find no violation, we do not discuss the harmless‐
error analysis.
B. Racketeering
1. Sufficient Evidence of Violent Assault to
Maintain Amaya’s Position
Amaya argues that the evidence was insufficient to convict
him on Count II, which charges him with violating 18 U.S.C.
§ 1959(a)(3) due to his role in punishing two Latin Kings who
had broken the gang rule that prohibited stealing within gang
territory. The statute criminalizes “assault with a dangerous
weapon” committed “for the purpose of … maintaining or in‐
creasing position in an enterprise engaged in racketeering ac‐
tivity.” Amaya argues: (1) he did not participate in the assault;
or (2) if he did, it was not to maintain or increase his position
within the Latin Kings.
Amaya’s arguments are unpersuasive. Recall that we view
the evidence “in the light most favorable to the government”
and we “overturn the verdict only when the record contains
no evidence, regardless of how it is weighed, from which the
jury could find guilt beyond a reasonable doubt.” Morales, 655
F.3d at 634 (citation and quotation marks omitted). As to
Amaya’s participation, fellow gang member Ruben Caquias,
who was present, testified that Amaya oversaw the assault.
According to Caquias, Amaya recommended the punishment
(hand‐smashing), chose the weapon (hammer or brick, not
baseball bat), picked the assailant (gang member “Baby28”),
and made Caquias watch the assault and report back. Also in
evidence were recordings of Amaya telling Caquias that a
22 No. 14‐2617
hammer or a brick should be used and later reassuring an‐
other gang member that a brick would work. Milton Shanna,
another Latin King who was present, also said that Amaya
was present and oversaw the assault. This evidence was suf‐
ficient to support the jury’s conclusion that Amaya partici‐
pated in the assault.
Amaya argues that even if he participated in the assault,
the evidence was insufficient to show that he did so to main‐
tain or increase his position in the gang. Noting that the Co‐
rona had initially ordered more severe beatings, and Amaya
talked him down to mere hand‐smashing, Amaya argues that
“challenging the judgment of the highest ranking officer”
could not possibly have served to maintain or increase
Amaya’s position. We reject the implied proposition—that ex‐
pressing disagreement with one’s boss can never be a part of
doing one’s job. Moreover, Amaya frames the issue incor‐
rectly. The assault underlying Amaya’s conviction was the
hand‐smashing, so the jury’s job was to determine why
Amaya participated in the hand‐smashing, not why he op‐
posed participating in a more brutal assault. There was evi‐
dence that gang rules required beatings for members who
stole within gang territory. And both Caquias and Shanna tes‐
tified that the hand‐smashing was to enforce gang rules, and
that Amaya was charged with overseeing the assaults specifi‐
cally because he was the Regional Inca where the theft had
taken place. This evidence supports a conclusion that Amaya
participated “because he knew it was expected of him by rea‐
son of his membership” in the gang. United States v. DeSilva,
505 F.3d 711, 715 (7th Cir. 2007). Amaya urges a different con‐
clusion: that he participated in the assault to save the thieves’
lives. (The reasoning is that, had Amaya not participated, the
Corona would have imposed a more severe punishment and
No. 14‐2617 23
the thieves may have been killed.) But as we said in DeSilva,
“[a]lthough it is possible to speculate as to alternative motives
for the order, as [Amaya] would have us do, that is not our
role. The only question is whether a rational jury could have
found that motive beyond a reasonable doubt, and we agree
with the district court that the evidence was sufficient to sup‐
port that determination.” Id. at 716. So we affirm the jury’s
verdict.
2. Sufficient Evidence of Conspiracy to Partici‐
pate in Pattern of Racketeering Activity
Finally, Amaya argues that the evidence was insufficient
to convict him on Count I, which charged him with violating
18 U.S.C. § 1962(d), part of the Racketeering Influenced and
Corrupt Organizations Act. As relevant here, the statute crim‐
inalizes conspiring to “conduct or participate, directly or in‐
directly, in the conduct of [an] enterprise’s affairs through a
pattern of racketeering activity.” 18 U.S.C. §§ 1962(c)–(d).
“Racketeering activity” is defined in 18 U.S.C. § 1961(1) and
includes murder, attempted murder, extortion, and drug traf‐
ficking. A “pattern” of racketeering activity requires at least
“two predicate acts of racketeering committed within a ten‐
year period.” Bible v. United Student Aid Funds, Inc., 799 F.3d
633, 659 (7th Cir. 2015); 18 U.S.C. § 1961(5).
Because Amaya was charged under a conspiracy theory,
the government was required to prove he agreed both: (1) that
he would conduct or participate in the affairs of the Latin
Kings; and (2) that some gang member(s) would commit at
least two predicate acts of racketeering. United States v. Vol‐
pendesto, 746 F.3d 273, 284 (7th Cir. 2014). Only the second
agreement is contested. The government was required to
prove that Amaya “agreed that a member of the conspiracy
24 No. 14‐2617
would commit two predicate racketeering acts,” but not that
Amaya “agreed to commit the predicate crimes personally,”
Volpendesto, 746 F.3d at 284 (citations and quotations omitted),
nor even that “any such acts were ultimately committed by
anyone … .” United States v. Tello, 687 F.3d 785, 792 (7th Cir.
2012).
Amaya argues that the government relied heavily at trial
on the rules governing the Latin Kings and in particular the
Latin Kings in the Little Village neighborhood, but failed to
show that Amaya himself actually agreed to abide by those
rules. Pressing that argument, Amaya notes there was evi‐
dence that gang members did not always follow all of the
rules. But Amaya ignores that two former Latin Kings—again,
Caquias and Shanna—testified that Amaya, as Regional Inca,
was in charge of enforcing the rules. The jury was entitled to
credit that testimony and conclude that Amaya agreed to the
rules. See Garcia, 754 F.3d at 471 (considering “documentary
evidence of the gang’s rules” as evidence that the Latin Kings’
Corona participated in a RICO conspiracy). The rules man‐
dated the shooting of trespassers, killing of police coopera‐
tors, retaliatory shooting of rival gang members, and beatings
of Latin Kings who broke the rules. And though Amaya ar‐
gues there were instances in which gang members failed to
follow the rules, he ignores the evidence of instances in which
the rules were followed. In particular, Amaya took credit for
twenty‐six shootings of rival gang members that took place
while he was Regional Inca.
Further, there is the extortion of the “miqueros.” The evi‐
dence was that the extortion was a gang activity, carried out
by gang members and overseen by superiors like Amaya.
Amaya argues that the extortion did not advance the gang’s
No. 14‐2617 25
affairs because the money went to the family of an imprisoned
gang member, not to the gang’s general coffers. Not surpris‐
ingly, Amaya cites no authority to support this argument. The
jury could have concluded that sending money to the family
of an imprisoned member furthered the gang’s affairs by en‐
couraging imprisoned members to remain loyal, rather than
cooperate with prosecutors.
Finally, there is drug trafficking. Many gang members sold
drugs and were permitted to do so by gang rules. The gang
also regulated the drug trade, prohibiting credit transactions
if the debt could not be repaid, and resolving disputes among
members that arose out of drug sales. Some money received
from drug sales was given to the gang in the form of manda‐
tory dues, and members with lucrative drug‐dealing opera‐
tions were allowed to skip the “mandatory bust outs” if they
chipped in extra money. Amaya, as Regional Inca, ensured the
dues were collected and announced a plan to redistribute the
money to ensure each chapter had adequate resources, even
those with smaller memberships.
This evidence—concerning the shootings, the extortion,
and the drug‐dealing—was sufficient to support Amaya’s
RICO conspiracy conviction.
III. CONCLUSION
We AFFIRM Amaya’s convictions.