In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3516
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S TEVEN P EREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 90—Ruben Castillo, Judge.
A RGUED JANUARY 19, 2012—D ECIDED M ARCH 12, 2012
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. Steven Perez, along with a
number of fellow gang members, was indicted for racke-
teering conspiracy. He originally stood trial with seven
other co-defendants; the jury found each of the co-defen-
dants guilty, but was unable to reach a verdict for Perez.
The district court declared a mistrial as to Perez, and he
was subsequently retried. When the case was given to
the jury for deliberation, the government submitted a
2 No. 09-3516
redacted indictment removing allegations against
Perez’s former co-defendants, who were no longer on
trial. Perez now argues that redacting the indictment to
remove these extraneous allegations violates the Grand
Jury Clause of the Fifth Amendment. Because we find
that the trial court did not commit plain error, we affirm
Perez’s conviction.
I. B ACKGROUND
Perez was involved in three attempted murders as
a member of the Insane Deuces, a violent street gang
located primarily in Northern Illinois.1 The first two
attempted murders occurred on January 20, 2002, when
brothers Gerardo and Rodolpho Rios were mistaken
for members of a rival street gang and shot while
walking along the street. Gerardo was struck in the leg;
Rodolpho in the arm and back. The third attempted
murder occurred on May 11, 2003, when Perez rang the
doorbell of the Rivera family home looking for Orlando
Rivera—a member of the Insane Deuces who was coop-
erating with police. But Orlando had already moved out
of the home for protection, and Orlando’s father, Tomas
Rivera, answered the door instead. Perez shot Tomas in
the arm as soon as he opened the door, before being
chased away by another family member.
A grand jury charged Perez, along with fifteen other
members of the Insane Deuces, with racketeering con-
1
The organization of the gang is described in detail in
United States v. Morales, 655 F.3d 608, 615-17 (7th Cir. 2011).
No. 09-3516 3
spiracy in violation of 18 U.S.C. § 1962(d) (Count One of
the Second Superseding Indictment).2 Specifically, para-
graphs 13 and 14 of Count One related to the January 20,
2002, attempted murders of Gerardo and Rodolpho Rios;
paragraph 21 related to the May 11, 2003, attempted
murder of Tomas Rivera. In addition to the attempted
murders, each of these paragraphs alleged that Perez
personally discharged a firearm that caused great
bodily harm, permanent disability, and permanent dis-
figurement to each victim.
The district court severed the case in two because of
the large number of defendants. The first trial consisted
of seven defendants; a second trial with the remaining
defendants—including Perez—commenced on March 31,
2008. However, the district court declared a mistrial for
the latter group of defendants on April 2, 2008, and
another trial for this group commenced on November 23,
2008. At the conclusion of this second trial, the jury
was unable to reach a verdict as to Perez and the court
declared a second mistrial as to him.
Perez stood for trial a third time on May 27, 2009.
This time, the jury found Perez guilty of racketeering
conspiracy, as alleged in Count One of the indictment.
In a second round of deliberations, the jury also re-
turned a special verdict form for the purpose of sen-
tencing enhancement. In the special verdict form, the
jury found as “proven” that Perez was responsible for
2
The indictment also charged Perez with assault with
a dangerous weapon, but this count was dismissed at trial.
4 No. 09-3516
the attempted murders of Tomas Rivera and both Rios
brothers. The jury also found as “proven” that Perez
personally discharged a firearm that proximately caused
Rivera’s injury. However, the jury found as “not proven”
that Perez personally discharged the firearm that
caused each of the Rios brothers’ injuries. Perez was
then sentenced to sixty years’ imprisonment.
When the case was given to the jury for its verdict, the
government—with permission from the district court—
renumbered the paragraphs contained in Count One of
the indictment and removed allegations relating to the
other defendants no longer on trial. The indictment
originally detailed the allegations relating to Perez
in paragraphs 13, 14, and 21. The verdict form sub-
mitted to the jury renumbered these allegations as para-
graphs 13, 14, and 15. Perez did not object to the use of
the redacted and renumbered indictment.
II. A NALYSIS
On appeal, Perez argues that renumbering the para-
graphs in Count One of the indictment and removing
the allegations against his former co-defendants con-
stitutes a constructive amendment to the indictment in
violation of the Grand Jury Clause of the Fifth Amend-
ment.3 A constructive amendment to an indictment
3
In his opening brief, Perez also argues that the indictment
did not name him in the attempted murder of Tomas Rivera,
(continued...)
No. 09-3516 5
occurs “when either the government (usually during its
presentation of evidence and/or its argument), the court
(usually through its instructions to the jury), or both,
broadens the possible bases for conviction beyond those
presented by the grand jury.” United States v. Penaloza,
648 F.3d 539, 546 (7th Cir. 2011).
Because Perez did not preserve this issue in the district
court, he forfeited his claim and we review only for
plain error. United States v. Crowder, 588 F.3d 929, 938
(7th Cir. 2009). To demonstrate plain error, Perez
must show: “(1) an error or defect (2) that is clear or
obvious (3) affecting the defendant’s substantial rights
(4) and seriously impugning the fairness, integrity, or
public reputation of judicial proceedings.” United States
v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010) (citing
United States v. Olano, 507 U.S. 725, 736 (1993)).
Perez’s argument falters for two reasons. First, he runs
into a fundamental problem: he makes no claim that
the redacted indictment broadened the possible bases
for conviction. Rather, Perez urges us to adopt a broad
rule that any change to the indictment constitutes a
3
(...continued)
and it was therefore impermissible for the jury to return a
special verdict based on this predicate act. But, perhaps
after reading the indictment more carefully, Perez abandons
this line of argument in his reply brief. Paragraph 21 of
Count One of the Second Superseding Indictment clearly
alleges that Perez attempted to murder Tomas Rivera, and
that Perez personally discharged a firearm in the attempt.
6 No. 09-3516
constructive amendment. Accordingly, he posits that
the entire forty-three-page indictment in its original
form must have been submitted to the jury—and that it
was plain error not to—irrespective of the fact that
his former co-defendants were no longer on trial. But
this is not the law; in United States v. Miller, the
Supreme Court expressly held that dropping allegations
from an indictment that are unnecessary to an offense
clearly contained within it does not unconstitutionally
amend the indictment. 471 U.S. 130, 144 (1985). See also
United States v. Lorefice, 192 F.3d 647, 653 (7th Cir. 1999)
(“An indictment may be altered without resubmission
to the grand jury as long as the alteration makes no mate-
rial change and there is no prejudice to the defendant.”);
United States v. Soskin, 100 F.3d 1377, 1380 (7th Cir. 1996)
(“Narrowing the indictment so that the trial jury deliber-
ates on fewer offenses than the grand jury charged
does not constitute amendment.”) (internal quotation
marks and punctuation omitted).
The district court properly allowed the use of a
redacted indictment to avoid confusing the jury and to
reflect the fact that only Perez was on trial. The redacted
indictment did not remove any allegations necessary
to the offense contained within it, and the bases for
Perez’s conviction were not broadened. Moreover, re-
numbering the paragraphs in Count One was also permis-
sible; it is well established that an indictment may be
altered when the modification is “merely a matter of
form.” Russell v. United States, 369 U.S. 749, 770 (1962).
Second, Perez does not even begin to demonstrate how
redacting the indictment constitutes plain error. Perez
No. 09-3516 7
makes no claim that his substantial rights were af-
fected. Nor does he claim that the use of a redacted indict-
ment seriously affected the fairness, integrity, or public
reputation of the proceeding. 4 Perhaps hoping to avoid
the burden of showing plain error, Perez cites to Ex parte
Bain, 121 U.S. 1, 13 (1887), for the proposition that a
defective indictment deprives a court of jurisdiction to
hear the matter. But this holding in Bain is no longer
good law and was expressly overruled by the Supreme
Court in United States v. Cotton, 535 U.S. 625, 631 (2002)
(“Insofar as it held that a defective indictment deprives
a court of jurisdiction, Bain is overruled.”). Plainly,
Perez cannot demonstrate that the district court com-
mitted plain error by submitting a redacted indictment
to the jury.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Perez’s conviction.
4
Indeed, several of Perez’s former co-defendants made the
opposite argument—claiming they were prejudiced by
being tried alongside other gang members. See Morales, 655
F.3d at 624-29. If anything, reducing the indictment to allega-
tions only involving Perez should have minimized any preju-
dicial spillover effect from the other allegations contained
in the indictment.
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