United States v. Olson

Five defendants appeal their various convictions for racketeering, racketeering conspiracy, conspiracy to distribute controlled substances, murder and drug trafficking. Four of the defendants were sentenced to life imprisonment and one received a prison term of 262 months. All of the charged conduct arises out of the defendants' participation in the Milwaukee Chapter of the street gang known as the Almighty Latin King Nation ("Latin Kings"). All five defendants also appeal their sentences. We affirm the convictions of all five defendants, and order a limited remand of the sentences of four defendants. For the fifth defendant, we vacate the sentence and remand for resentencing.

The Latin Kings are a national criminal organization (often called the "Nation") based in Chicago, with chapters in many states. The chapters follow a written Constitution and Manifesto (collectively, the "Manifesto") that set forth the rules for membership and a code of conduct to which members must adhere. The Manifesto describes, among other things, the hierarchy that rules the national and local chapters of the organization, the colors and symbols that are to be worn and displayed by members, and certain hand gestures that indicate allegiance to the group. A five-pointed crown is the national emblem of the Latin Kings; black and gold are the official colors of the group. According to the Manifesto, a fist on the heart is the national salute, a gesture meaning, "I die for you." Another Latin Kings gesture known as "the crown" involves displaying the fingers of one hand in a configuration that resembles a crown. The Latin Kings have a national flag, several official prayers, and a set of trial procedures to be used when a member commits an offense. The Latin Kings code of honor denies membership to anyone who has killed a member of the group or killed a relative of a member. The Manifesto also ostensibly excludes as members rapists and men who are addicted to heroin.

On the national level, the Latin Kings are led by an executive committee known as the Crown. The Crown is headed by the Sun-King, a leader chosen by the Crown as a whole. The Crown has the authority to make laws for the entire Latin Kings organization, which is further subdivided into chapters. Each chapter is led by an Inca who has the authority to make rules for his own chapter but not for the Nation. So long as he abides by the Nation's laws, the Inca has absolute authority over his chapter and also bears responsibility for the actions of his chapter. Next in command at the chapter level is the Cacique (also called the Casinca), whose duty is to make certain that the Inca's orders are carried out. The Cacique takes on the Inca's role if the Inca is imprisoned or dies, although the Inca retains ultimate authority if his absence is due to imprisonment. The Inca and Cacique are elected by the members of the chapter. Each chapter also has an Enforcer, a Treasurer and a Secretary, each appointed by the Inca and Cacique. The Enforcer is in charge of "security" for every member of the chapter and ensures that members obey the Nation laws and the orders of the Inca and Cacique. Any member who publicly discredits the Inca or Cacique may be charged with conspiracy and treason. Latin Kings may not wear anything that can be construed as being an emblem of another organization. Members are admonished to protect the lives and reputations of all other Nation members, not to discuss Nation business with outsiders, and not to submit to lie detector tests. The Nation is apparently wary of the press but not entirely opposed to publicity; one rule forbids giving press interviews on Nation business without prior approval. According to the Manifesto, any member who cooperates with the police will be expelled from the group. In practice, that expulsion invariably is accompanied by beatings (called "violations" in Latin Kings parlance) and is sometimes accomplished by murder. The Manifesto also mandates that "No King shall stand idle when another King is in need of assistance." There are other rules and other positions in the hierarchy; we have described only those parts of the Manifesto necessary to understand the issues in this case. In addition to the rules recorded in the Manifesto, a number of unwritten rules also came into play in this case. We will address these as they become relevant to the issues.

The Milwaukee Chapter began operations in the mid-1980s and eventually grew large enough to control a large territory on Milwaukee's south side. The Milwaukee Chapter was, at times, divided into smaller geographically-based territories known as the Kagel Kings, the 23rd Street Kings, the Sawyer Kings and the 15th Street Kings. Within the Kagel Kings was a younger group known as the Junior Kings. The Milwaukee Chapter employed a city-wide Crown Council, with the chain of command continuing above the Inca. A regional Jefe and Corona reported directly to national leaders in Chicago. All of the defendants in this case were members of the Latin Kings in Milwaukee. Pedro Martinez ("Martinez") was the Inca of the Kagel Kings beginning in 1991 or 1992. Andrew Acosta ("Acosta") served as Cacique and Enforcer under Martinez and as Enforcer under a different Inca, Ray Rivera.1 Wilfredo Vasquez ("Vasquez") led the Junior Kings. Antonio Mendez ("Mendez") was a member of the Latin Kings as a result of a merger between the Latin Kings and the Nasty Boys, the gang that Mendez joined initially. After his incarceration in 1993, Mendez became the Acting Chief Enforcer of a prison chapter of the Latin Kings. Olson was a member of the Junior Kings and later the Kagel Kings. He did not hold a particular rank.

The five defendants, together with twenty-six other Latin Kings, were charged in a Second Superseding Indictment with a variety of crimes. Count I alleged that Acosta, Martinez, Mendez, Vasquez and others conducted and participated in the conduct of the affairs of the Latin Kings through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c). The indictment alleged sixty-seven underlying predicate offenses, including murders, robberies, kidnappings, arson, intimidation, drug trafficking and witness tampering. Many of the original thirty-one defendants resolved their cases before trial, reducing the number of predicate acts that remained in dispute at the time of trial. Moreover, the issues raised by these remaining five defendants implicate only a subset of the remaining acts presented at trial; to keep the facts manageable, we will detail only those predicate acts that play a part in the defendants' appeals. Acosta and Martinez were charged with Racketeering Act 8 ("Act 8"), which was divided into three subparts. Act 8(a) alleged conspiracy to murder Angelique Morales; Act 8(b) alleged the murder of Angelique Morales on January 23, 1994; and Act 8(c) alleged the attempted murder of Jennifer Burzynski on January 23, 1994. Racketeering Act 4 alleged that Mendez murdered Jenna Gonzales in May 1993. Count II alleged that all five defendants (and others) engaged in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). Count III alleged that Acosta, Martinez, Olson, Vasquez and others conspired to distribute and possess with intent to distribute controlled substances, including cocaine, cocaine base and marijuana, in violation of 21 U.S.C. §§ 841 and 846. Count IV charged Mendez with the murder of Jenna Gonzales for the purpose of maintaining his position with the Latin Kings, in violation of 18 U.S.C. § 1959. Count VIII charged Acosta with possession with intent to distribute a large quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1). Count X charged Vasquez with marijuana distribution, in violation of 21 U.S.C. § 841(a)(1). The jury returned a guilty verdict on all counts. As for the racketeering acts alleged, the jury found that the government had proved the acts we have already listed (Acts 4 and 8) as well as a variety of crimes involving arson, conspiracies to murder, attempts to murder, drug possession and distribution, kidnappings, witness tampering, and solicitation of murder. The dates of these various criminal acts spanned approximately from January 1987 through April 1999. The district court sentenced Olson to 262 months' imprisonment; Acosta, Mendez, Martinez and Vasquez all received sentences of life in prison.

In their appeals, the defendants jointly raise two challenges to the sufficiency of the evidence and one challenge to sentencing. First, for the racketeering counts, they contend that the government failed to prove that the Latin Kings were a single, ongoing enterprise during the time period charged in the indictment. Second, they challenge whether the evidence was sufficient to connect Racketeering Act 8 with the enterprise. Finally, they maintain that their sentences are unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Each defendant claims additional error related to his individual case. Acosta argues that his due process rights were violated when the government mischaracterized the evidence relating to racketeering Act 8 in closing arguments. Mendez contends that the evidence was insufficient to connect the conduct alleged in both Racketeering Act 4 and Count IV to the enterprise. Vasquez asserts that the court erred when it denied his motion to sever his trial from the others because Thomas Overland, who pled guilty mid-trial, propounded a defense that was antagonistic to Vasquez's defense. Vasquez also faults the court for allowing Overland to testify against Vasquez after Overland changed his plea to guilty. Martinez maintains that the court erred in failing to suppress statements he made during what he believed were plea negotiations. He also complains that the court should have suppressed any statements he made during an interview in which prosecutors violated their ethical obligations. Olson objects to his sentence, maintaining that the court held him liable for a greater quantity of drugs than was supported by the evidence. He also asserts his sentence was cruel, unusual, excessive and failed to serve a valid purpose. We will begin with the issues that affect all of the defendants and then turn to the defendants' individual arguments.

Count I of the Second Superseding Indictment ("Indictment") charged the defendants with racketeering, in violation of 18 U.S.C. § 1962(c). The basic elements of a section 1962(c) violation are (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. United States v. Cummings, 395 F.3d 392, 397 (7th Cir.2005). Count II charged a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). To prove a RICO conspiracy, the government must show (1) an agreement to conduct or participate in the affairs (2) of an enterprise (3) through a pattern of racketeering activity. United States v. Neapolitan, 791 F.2d 489, 498 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986). Thus, for each of these two counts, the government was required to prove the existence of the enterprise. The first joint argument for our review is the question of whether the government provided sufficient evidence of the enterprise alleged in the Indictment. According to the defendants, the enterprise alleged in the Indictment ceased to exist for a period of time in the mid-1990s and thus the government failed to prove a single, ongoing enterprise for RICO purposes.

When considering criminal defendants' challenges to the sufficiency of the evidence supporting their convictions, we review the evidence in the light most favorable to the government. United States v. Bernitt, 392 F.3d 873, 878 (7th Cir.2004), cert. denied, 544 U.S. 991, 125 S.Ct. 1882, 161 L.Ed.2d 754 (2005); United States v. Stott, 245 F.3d 890, 904 (7th Cir.), cert. denied, 534 U.S. 1070, 122 S.Ct. 676, 151 L.Ed.2d 589 (2001). We will reverse a conviction only if no rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. Bernitt, 392 F.3d at 878; Stott, 245 F.3d at 904. See also Cummings, 395 F.3d at 397 (in reviewing a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the government, deferring to the jury's credibility determinations, overturning a verdict only when the record contains no evidence, however it is weighed, upon which a rational trier of fact could find guilt beyond a reasonable doubt). The statute defines an enterprise as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). The existence of an enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). The "central element of an enterprise is structure." Neapolitan, 791 F.2d at 500. We have held that in informal organizations such as criminal groups, there "must be some structure, to distinguish an enterprise from a mere conspiracy, but there need not be much." United States v. Rogers, 89 F.3d 1326, 1337 (7th Cir.1996), cert. denied, 519 U.S. 999, 117 S.Ct. 495, 136 L.Ed.2d 387 (1996) (quoting United States v. Korando, 29 F.3d 1114, 1117 (7th Cir. 1994), cert. denied, 513 U.S. 993, 115 S.Ct. 496, 130 L.Ed.2d 406 (1994)). See also United States v. Torres, 191 F.3d 799, 806 (7th Cir.1999), cert. denied, 528 U.S. 1180, 120 S.Ct. 1218, 145 L.Ed.2d 1118 (2000) (the continuity of an informal enterprise and the differentiation among roles can provide the requisite structure to prove the elements of enterprise); Richmond v. Nationwide Cassel, L.P., 52 F.3d 640, 644 (7th Cir.1995) (a RICO enterprise is an ongoing structure of persons associated through time, joined in purpose, and organized in a manner amenable to hierarchical or consensual decision-making); United States v. Tocco, 200 F.3d 401, 425 (6th Cir.2000) (continuity of structure exists where there is an organizational pattern or system of authority that provides a mechanism for directing the group's affairs on a continuing, rather than ad hoc, basis).

The Indictment defined the relevant enterprise as "the Almighty Latin Kings Nation, Milwaukee Chapter." R. 1321, ¶ 1. The Indictment alleged that the Milwaukee Chapter was established in the mid-1970s, that the enterprise had an organized structure set forth in the Manifesto, and that the Milwaukee Chapter was subdivided into geographical subchapters. According to the Indictment, the object and purposes of the Latin Kings enterprise were multi-faceted. Among other things, the Latin Kings sought to protect and defend their territory from rival street gangs; to enforce discipline among the group's own members; to traffic in controlled substances; to commit acts of robbery, home invasion and theft for the benefit of the Latin Kings; to obtain firearms for use in violent crimes and other Latin Kings endeavors; to provide economic and social support to the Nation; to preserve and protect the power of the enterprise, its associates and members through intimidation, threats of violence and acts of violence, including murder; to increase the membership of the enterprise; and to intimidate witnesses in an attempt to prevent them from cooperating with law enforcement authorities. The Indictment listed sixty-nine predicate acts that made up a pattern of racketeering activity. The acts spanned in time from 1987 through 2000.

The defendants concede that many of the government witnesses testified about the existence and structure of the Latin Kings but contend that the government provided insufficient evidence that the Latin Kings enterprise existed unabated throughout the time period alleged in the indictment. According to the defendants, some of the government's key witnesses testified that the Latin Kings ceased to operate as an ongoing organization in the mid-1990s and was revived some time later. In particular, Ray Rivera testified that he was asked to become Inca at a time of great disagreement and disorganization among the Latin Kings, causing the organization to split into two groups. Rivera opined that there was not "one overall organization" in late 1995 because of this in-fighting. David Keheres, a member of the Latin Kings, described a period of time when the Inca of the Kagel Kings, Herminio Vega, had been removed (or "violated out" in the parlance of the Kings) and was not replaced until Rivera came in a few months later to reorganize the group. Mark Turner, a Latin Kings Enforcer, testified that after Vega was expelled from the group, the Casinca tried unsuccessfully to take over but that there was "an empty void for a short period of time." This "empty void" was remedied when the members held a Nation meeting at which Rivera was elected Inca, Acosta was elected Casinca, and Turner was elected to be Enforcer. Turner testified to another period of disorganization after Martinez was ejected from the group. Benjamin Drews became a member of the Latin Kings in November 1995. His first Nation meeting was the one at which Rivera was elected Inca. Drews recalled that a man named Moe spoke at the meeting about the need for a new Inca in order to stop the "senseless shootings" that were occurring and in order to make everything run more smoothly. Miguel Romero, another Latin King, also testified that before Rivera was elected Inca, some Latin Kings were shooting at and fighting with other gangs at will. Rivera tried to stop the members from "running around wild, doing whatever they wanted to do." Thomas Overland testified that the Kings were in disorder prior to Rivera's election as Inca.

According to the defendants, other government witnesses had no knowledge of the Latin Kings in the mid-1990s and therefore could not support the government's theory that the Latin Kings were a continuous enterprise during the relevant time period. The defendants concede that two government witnesses, Alejandro Vallejo and Brian Turner, lent some support to the government's case. Vallejo testified that there was an "acting Inca" after Vega was ejected from the group and before Rivera was elected Inca. Brian Turner, a member and brother of Mark Turner, testified that Vega was forced out at the same meeting that Rivera was elected to replace him. The defendants suggest that Vallejo was not a credible witness because of his extensive criminal history and that Brian Turner's portrayal of events was unsupported by any other witness to the Rivera election.

According to the defendants, this break in the leadership and supposed temporary split of the Latin Kings into two groups makes their case analogous to that of United States v. Morales, 185 F.3d 74 (2d Cir.1999), cert. denied, 529 U.S. 1010, 120 S.Ct. 1282, 146 L.Ed.2d 229 (2000). In that case, the government charged both a substantive RICO count as well as a RICO conspiracy count against several members of a street gang known as the "Park Avenue Boys." The indictment alleged that the enterprise existed from 1987 to 1996. At trial, the evidence showed that all of the Park Avenue Boys were dead or in prison by 1988. The group did not resume its operations until some members were released from prison in 1995. Thus there was a seven-year lull during which no crimes were committed. The government presented no evidence that the group continued to operate while its members were in prison. The court reversed the RICO convictions because the government failed to prove the existence of the single nine-year enterprise alleged in the indictment. 185 F.3d at 81.

The facts of Morales are palpably different from the situation of the Milwaukee Chapter of the Latin Kings in the mid-1990s. The most obvious difference is that the Latin Kings never faced a situation where the entirety of their membership was incapacitated by death or imprisonment for a multi-year part of the charged time period. At most, a certain subset of the Milwaukee Latin Kings lacked formal leadership for a few months of the thirteen-year period charged in the Indictment. Moreover, as the government points out, the Latin Kings were part of a national organization, with a structure set forth in the Manifesto. Consistent with the Manifesto, the Latin Kings held meetings, collected dues, elected officers, maintained a treasury, studied the Manifesto, and enforced the code of conduct. New members were subjected to a review process and a probationary period before they were "violated into" the group, a process which involved taking a severe beating from current members. Members who failed to adhere to the code of conduct also received "violations," beatings that could result in hospitalization or death. The Latin Kings maintained guns and a pager that belonged to the group. They regularly reviewed police presence in their territory and took actions to keep rival gangs away from their turf.

In addition to that national structure, there was additional evidence from which the jury could infer that the Latin Kings existed as a single continuous enterprise in the Milwaukee area during the time period alleged in the indictment. First, as the defendants concede, two witnesses, Vallejo and Brian Turner, testified that there was no actual break in Latin King leadership in the mid-1990s. Although other witnesses testified to the contrary, the jury was free to believe these two and reject the contrary testimony. Indeed, the jury could have found that the break in leadership, if there was one, was very brief. Several Latin Kings testified that Vega was violated out of the group because he had cooperated with the police. Although there was some difference in testimony about the time frame for Vega's removal as Inca, at least one witness, Benjamin Drews, testified that Vega was removed from his position in December 1995. Drews also testified that Rivera was elected to be the new Inca in late December 1995 or early January 1996. Vallejo testified that Rivera was elected at a January 6, 1996 meeting and the jury was free to credit Vallejo's testimony.2 In combination with Drews' testimony that Vega was removed in December and replaced in late December or early January, the jury could infer that the group was without formal leadership for approximately one month. A very brief break in leadership does not compel a finding that the enterprise ceased to exist during that time.

The Manifesto anticipated gaps in leadership and provided that in the absence of the Inca, the Casinca or Cacique was in charge of the group. There was evidence that this plan was implemented after Vega's ouster. Vallejo testified that the Cacique was the "acting Inca" until a vote was held to elect a new Inca. Tr. at 3515. Although there was some testimony that the Cacique was unsuccessful in his attempts to lead the group and that members were engaging in independent criminal activity during this brief time, there is no legal requirement that an enterprise run like a well-oiled corporate machine. Some disorganization does not, as a matter of law, negate the existence of the enterprise. Indeed, the very witnesses on whom the defendants rely each supported the jury's determination that the Milwaukee Chapter of the Latin Kings was an enterprise for RICO purposes. For example, Rivera testified that the Latin Kings continued to exist from 1993 when he left the group through 1995 when he returned. Tr. at 562. Mark Turner confirmed that the Latin Kings continued to have an Inca from beginning to end, even during the period of disorganization when there were leadership changes. Tr. at 1945-46. Keheres verified that the group had structure and organization even before Rivera took over. When asked if the Latin Kings had a "gang mentality" during the period of disorganization, Keheres replied, "No, not all of them." Tr. at 1311-18.

In addition to the alleged gap in leadership, of course, there was some testimony that the Latin Kings splintered into two groups, and again the defendants urge us to find that this is proof that the single enterprise alleged in the indictment did not exist continuously during the relevant time period. The enterprise alleged in the Indictment was the "Almighty Latin King Nation, Milwaukee Chapter." As we have discussed, the Milwaukee Chapter was broken down into regional groups, each with its own Inca and corresponding structure. Overseeing all of these groups or sects was a regional Jefe or Corona, a person who had authority over the Incas of the various Milwaukee sects and who reported to the national organization in Chicago. There was testimony, for example, that the Jefe was called in to resolve a dispute that arose when the Inca of one Milwaukee sect ordered the kidnappings of a member of another sect. There was also testimony that although there were a number of different neighborhood-based sects, they all were Latin Kings, representing the same crown and the same colors. Thus, the fact that the Kagel Kings may have splintered for a time was irrelevant to the continuing overall structure of the Milwaukee Chapter. There was abundant evidence from which the jury could infer that a single enterprise existed throughout the time period alleged in the indictment.

In Torres, we addressed a sufficiency of the evidence challenge to the enterprise element of a RICO charge. 191 F.3d at 807. The government had established at trial that the defendants functioned as an informal organizational unit of a larger organization to enforce the collection of drug debts upon orders given to them by others in the larger organization. The informal group operated by kidnappings debtors or members of the debtors' families, and holding them for ransom to satisfy the drug debt. In addition to the testimony of some of the surviving kidnapping victims, physical evidence introduced at trial included firearms, cell phones, pagers, and ammunition found in a van used by the group and at two hide-outs. We commented that this physical evidence demonstrated that the defendants were a well-equipped, sophisticated group engaged in criminal activities and provided support for the jury's finding of the existence of an enterprise. Torres, 191 F.3d at 807. See also Tocco, 200 F.3d at 425 (recognizing that the command system and general structure of the organized crime group La Casa Nostra is evidence of the existence of an enterprise separate from the type of structure inherent in a pattern of racketeering activity); United States v. Flynn, 852 F.2d 1045, 1052 (8th Cir.1988), cert. denied, 488 U.S. 974, 109 S.Ct. 511, 102 L.Ed.2d 546 (1988) (finding that the command system of a Mafia family is an example of the type of structure that is distinct from the pattern of racketeering activity). The Latin Kings operated in similar fashion, as a well-equipped organization with a defined hierarchical command structure, a Manifesto and Constitution that guided their behavior, and allegiance to a national organization. The central element of an enterprise is structure and the Latin Kings maintained its structure throughout the period described in the Indictment. Neapolitan, 791 F.2d at 500. A rational trier of fact easily could have found the existence of the defined enterprise beyond a reasonable doubt. Bernitt, 392 F.3d at 878. The jury was well within its province to ignore any temporary gaps in leadership or splintering of subgroups in finding that a single criminal enterprise existed during the time period alleged in the Indictment. We therefore see no reason to disturb the jury's verdict on the RICO counts.

The defendants' second joint argument relates to the three-part Racketeering Act 8. Act 8(a) alleged a conspiracy to murder Angelique Morales; Act 8(b) charged the murder of Angelique Morales on January 23, 1994; and Act 8(c) alleged the attempted murder of Jennifer Burzynski on January 23, 1994. According to the defendants, the government provided insufficient evidence to connect Racketeering Act 8 to the enterprise. As we noted earlier, in a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the government, and we will reverse a conviction only if no rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. Bernitt, 392 F.3d at 878; Stott, 245 F.3d at 904. The defendants contend that the government did not prove one of the elements of section 1962(c):

It shall be 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). The Supreme Court held that "liability depends on showing that the defendants conducted or participated in the conduct of the `enterprise's affairs,' not just their own affairs." Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993) (emphasis in original). See also United States v. Swan, 250 F.3d 495, 498 (7th Cir.2001) (to be liable under section 1962(c), an individual must have participated in the operation or management of the enterprise itself). The defendants reason that if a charged racketeering act was not committed in order to operate or manage the enterprise, that act cannot support a RICO charge. They posit that the murder of Morales and the attempted murder of Burzynski were unrelated to the Latin Kings enterprise. Rather, they contend, the evidence demonstrated that Acosta was enraged with his girlfriend on the night in question, that Martinez tried to calm him down and talk him out of killing Morales, and that Martinez, the Inca, did not order the murder. The defendants concede that their convictions for racketeering will still stand because the jury found that they committed other predicate acts that they do not challenge here. The murder of Morales and attempted murder of Burzynski, however, dramatically lengthened their sentences and they therefore challenge the jury's finding on Racketeering Act 8 for that reason. We turn to the facts surrounding Racketeering Act 8, reviewing them in a light most favorable to the government.

In Milwaukee, gangs are generally separated into two factions known as "People" and "Folks." The Latin Kings are allied with the People faction and consider themselves to be at war with Folks-aligned gangs. Angelique Morales was associated with the Maniac Latin Disciples ("MLD"), a Folks-aligned gang. In 1993, she attended a Cypress Hill concert with members of the MLDs.3 During the concert, Morales, who had a backstage pass, went up on the stage and "threw the crown down," that is, she displayed the Latin Kings' crown hand gesture in an upside-down fashion. She also convinced a member of the Hooligan band, another group playing that night, to make the same gesture, telling him it was the symbol for "I love you." The Latin Kings consider an upside-down display of the crown to be disrespectful. Acosta was also at the concert and when he saw Morales make this gesture, he "came up and got in her face and started charging her up, started getting obnoxious to her and started yelling at her." Tr. at 2443. Acosta called Morales a "Flake Bitch," a derogatory term for a Folks-aligned person. Tr. at 2444-45. Another person present at the concert testified that Acosta screamed at Morales, calling her a "Folk Bitch." According to the witness, Acosta said to Morales, "We're going to kill you, we're going to get you, and you ain't shit, bitch." Tr. at 2471. The altercation ended with Morales and her friends exiting the stage while concert security personnel intervened with Acosta. Morales was well known to the Latin Kings before this event. She had previously been seen in Latin Kings neighborhoods, throwing the crown down and pointing out the homes of Latin Kings members to MLDs. The Latin Kings also believed Morales had served as a driver when MLDs fired shots at the homes of Latin Kings. Because of her reputation for disrespecting the Latin Kings, a "lot of dudes hated her." Tr. at 1682. Her disrespect for the Latin Kings was discussed at meetings.

On January 23, 1994, Acosta and others attended a birthday party for Martinez's son. At the party, Acosta argued with his girlfriend, creating a disturbance loud enough to attract the attention of police officers. The girlfriend left the party and later in the evening, Acosta left the party with Martinez, Eric Estrada and Emiliano Vargas, Martinez's young cousin. At the time, Martinez was the group's Inca, Estrada was the Casinca, and Acosta was the Enforcer. Martinez drove and Acosta rode in the front passenger seat with the other two passengers in back. The group passed a gas station and pulled over. Angelique Morales and a friend, Jennifer Burzynski, had stopped at that same gas station to use a pay phone. Acosta spotted Morales and exited Martinez's car. As Acosta left the car, Martinez told him to "leave it alone." Tr. at 2211. Acosta approached the car where Morales and Burzynski were sitting and waiting for a person they had paged. According to Burzynski, when Morales saw Acosta, she became terrified and exclaimed, "Oh shit, there's the King that charged me up at the Cypress Hill concert." Tr. at 2109. Morales, in a panic, turned the ignition of the car even though it was already on. She tried to put the car in drive but could not move the shifter because her foot was not on the brake. As Burzynski tried to direct her to put the car in gear by putting her foot on the brake, Acosta looked inside the car, pulled a gun from his pants and pointed it at Morales. After clearing a jam in the gun, Acosta fired six shots into the car, hitting both Morales and Burzynski. At the first shot, Burzynski opened her door, threw herself from the car and played dead. After Acosta left, Burzynski got up from the ground and saw that Morales was hunched over the steering wheel, gasping for air. A moment later, Morales stopped gasping. Terrified that Acosta would return and see her still alive, Burzynski fled the scene and called 911 from the home of her boyfriend's cousin. She survived her injuries and testified against Acosta in state court (where he was acquitted) and later in the instant case.

Meanwhile, back in Martinez's car, after Acosta exited the car, Estrada asked Martinez to leave. Martinez refused, saying he did not want to leave Acosta there alone. After a few minutes, Estrada heard gunshots and a few moments after that Acosta came running back to the car. He got in and Martinez drove Estrada home. The next day, Estrada read about the shooting in the newspaper and Acosta was subsequently arrested for the crime. Martinez and Estrada hired an attorney for Acosta. Martinez paid $20,000 for the lawyer, using proceeds from drug sales. According to Estrada, Martinez had reason to "look out" for Acosta because Acosta handled all of Martinez's "operations," doing all the "dirty work" for Martinez. Tr. at 2214. Martinez's "operations" involved drug sales, among other things. Estrada did not approach the police with any of this information because the Latin Kings code of conduct prohibited members from cooperating with police officers or any other law