U.S. v. Delatorre

522 F.Supp.2d 1034

UNITED STATES of America, Plaintiff, v. Fernando DELATORRE, also known as Judge Ruben Castillo "Fern," "Ferndog," and "Fernwood," Bolivar Benabe, also known as "Jap," Juan Juarez, also known as "Ghost," Julian Salazar, also known as "Mando," "Comrade," "Conrad," "Cuz," and "Cuzzo," Miguel Martinez, also known as "Big Mike" and "Mizzy," Mariano Morales, also known as "Mar," Arturo Barbosa, also known as "Chipmunk," Harold Crowder, also known as "H-Man," Miguel Roderiguez, also known as "Mental" and "Mento," Steven Perez, also known as "Frantic" and "Big Frantic," Brian Hernandez, Lionel Lechuga, Romel Handley, also known as "Romellie," Christian Guzman, also known as "Mousey," Akeem Horton, and Steven Susinka, Defendants.

No. 03 CR 90.

United States District Court, N.D. Illinois, Eastern Division.

November 21, 2007.

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Thomas C. Brandstrader, Law Office of Thomas. C. Brandstrader, Susan A. Shatz, Robert G. Clarke, John Thomas Theis, Steven Shobat, Attorney at Law, John M. Beal, Paul Camarena, Chicago, IL, Robert Lee Gevirtz, Gevirtz & Born, Mark Herbert Kusatzky, Attorney at Law, Northfield, IL, Herbert Hill, Attorney at Law, Aurora, IL, William O. Walters, Attorney at Law, Mt. Prospect, IL, for Defendants.

Harold Crowder, Chicago, IL, Pro se.

Steven Perez, Chicago, IL, Pro se.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

The question presently before the Court comes down to "how many defendants is too many to join in a single criminal trial?" In the Second Superseding Indictment ("Indictment") in this case, the government charged sixteen defendants — all allegedly members of the Insane Deuce Nation Street Gang ("Insane Deuces") — with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), committing various violent crimes in aid of the racketeering activity, and drug trafficking. The government estimates that the trial of this complex criminal case, which is set to begin on February 6, 2008, will last four to five months. After substantial mitigation presentations, which have delayed this case, the government recently announced it will not seek the death penalty against any defendant. One defendant, Akeem Horton, has pled guilty (R. 380), and another defendant, Miguel Martinez, remains a fugitive. Of the remaining fourteen defendants, Romel Handley ("Handley") (IL 151, 503), Steven Perez ("Perez") (R. 161), Miguel Rodriguez ("Rodriguez") (R. 342, 500), Juan Juarez ("Juarez") (R. 367, R. 474), Christian Guzman ("Guzman") (R. 348, 511), Steven Susinka ("Susinka") (R. 403),¹ Julian Salazar ("Salazar") (R. 457, 507), Bolivar Benabe ("Benabe") (R. 485, 513), and Arturo Barbosa ("Barbosa") (R. 509) have filed motions to sever, the trial and/or statements in support of severance. Benabe also filed a separate motion to sever Counts Fourteen and Fifteen, which charge him with various firearms violations. (R. 347, Benabe Mot. to Sever.) Pursuant to this Court's prior order (R. 125), motions filed by one defendant apply to all the defendants and, accordingly, this Court has considered the motions for severance on behalf of all the defendants. While the government opposes severance, the government has submitted a statement setting out its preferred severance arrangement if this Court grants the motions to sever the trial. (R. 461, Gov't Severance Statement.)

THE INDICTMENT

I. Count One: RICO Conspiracy

Count I of the Indictment alleges that each of the fourteen defendants conspired to violate 18 U.S.C. § 1962(c) through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). (R. 227, Indictment, Count One, ¶ 9.) Section 1962(c) 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." 18 U.S.C. § 1962(c). Section 1962(d) additionally makes it unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. 18 U.S.C.A. § 1962(d).

The Indictment alleges that the defendants agreed that a member of their conspiracy would commit at least two of the following acts of racketeering: murder, attempted murder, solicitation to commit murder, robbery, witness tampering, and multiple narcotics offenses. (Id. ¶¶ 10-11.) Specifically, the Indictment alleges the following acts of racketeering were committed as part of the conspiracy, violation of 18 U.S.C. § 1962(d):

• On or about January 20, 2002, Juarez, Salazar, Martinez, Perez, Hernandez, and others, known and unknown to the Grand Jury, committed and caused to be committed the attempted murder of a Victim A, in which Perez discharged the firearm which permanently disabled and disfigured Victim A. (Id. ¶ 13.)

• On or about January 20, 2002, Juarez, Salazar, Martinez, Perez, Hernandez, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of a Victim B. Perez discharged the firearm which permanently disabled and disfigured Victim B. (Id. ¶ 14.)

• On or about February 12, 2002, Delatorre, Juarez, Salazar, Martinez, Crowder, Susinka, and others, known and unknown to the. Grand Jury, committed and caused to be committed, the murder of Robert Perez. Crowder discharged the firearm that killed Perez. (Id. ¶ 15.)

• On or about August 11, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Guzman, and others, known and unknown to the Grand Jury, committed and caused to be committed, the murder of David Lazcano. Guzman discharged the firearm that killed Lazcano. (Id. ¶ 16.)

• On or about September 19, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Guzman, Horton, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of a Victim C. Guzman discharged the firearm that permanently disabled and disfigured Victim C. (Id. ¶ 17.)

• On or about September 28, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of Victim D. Co-conspirator A discharged the firearm that permanently disabled and disfigured Victim D. (Id. ¶ 18.)

• On or about October 16, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Horton, Co-conspirator B, and others, known and unknown to the Grand Jury, committed and caused to be committed, the murder of David Morales. Co-conspirator B discharged the firearm that killed David Morales. (Id. ¶ 19.)

• On or about November 17, 2002, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Co-conspirator B, and others, known and unknown to the Grand Jury, committed and caused to be committed, the murder of Urbel Valdez. Co-conspirator B discharged the firearm that killed Urbel Valdez. (Id. ¶ 20.)

• On or about May 11, 2003, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Perez, and others, known and unknown to the Grand Jury, committed and caused to be committed, the attempted murder of Victim E. Perez discharged the firearm that permanently disabled and disfigured Victim E. (Id. ¶ 21.)

• Beginning at least from in or about late 1994, and continuing through at least the date of return of the Indictment, Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Rodriguez, Susinka, Hernandez, Lechuga, Horton, and others, known and unknown to the Grand Jury, conspired to knowingly and intentionally distribute and possess with intent to distribute controlled substances. (Id. ¶ 22.)

II. Substantive RICO Violations

A. Count Two: Murder of David Lazcano

In Count II, the Indictment alleges that on August 11, 2002, Delatorre and Guzman, and others known and unknown to the Grand Jury, for the purpose of gaining entrance to, and for maintaining and increasing the defendants' position in the Insane Deuces, knowingly and intentionally murdered David Lazcano, in violation of 18 U.S.C. §§ 1959(a)(1) and (2). (R. 227, Indictment, Count Two, ¶¶ 3-4.) Section 1959 describes penalties for violent crimes in aid of racketeering activity. Specifically, Section 1959(a)(1) and (2) state that:

Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished — (1) for murder, by death or life imprisonment, or a fine under this title, or both; and for kidnapping, by imprisonment for any term of years or for life, or a fine under this title, or both; (2) for maiming, by imprisonment for not more than thirty years or a fine under this title, or both. 18 U.S.C. § 1959.

B. Count Three: Conspiracy to Murder Victim F

The Indictment next alleges that beginning as early as August 15, 2002, until at least August 22, 2002, Salazar, and others known and unknown to the Grand Jury, for the purpose of gaining entrance to, and for maintaining and increasing the defendant's position in the Insane Deuces, did knowingly and intentionally conspire to murder Victim F, in violation of 18 U.S.C. §§ 1959(a)(5) and (2). (R. 227, Indictment, Count Three, ¶¶ 2-3.) In addition to the criminal penalties state above for violations of Section 1959(a)(2), Section 1959(a)(5) states that attempting or conspiring to commit murder or...