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United States v. Briseno

United States Court of Appeals, Seventh Circuit

December 2, 2016

United States of America, Plaintiff-Appellee,
Juan Briseno, Defendant-Appellant.

          Argued September 9, 2016

         Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 11 CR 00077 - Philip P. Simon, Chief Judge.

          Before Posner, Manion, and Williams, Circuit Judges.


         Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that during closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for government witnesses in an inappropriate fashion.

          But Briseno failed to object at trial to any of these statements, and none was so egregious that the trial judge should have intervened. Although earlier in the trial the government highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submitted to the jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government's witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government's favor. Finally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the jurors' common sense.

         In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of "at least two acts of racketeering" but not "two or more specific acts." We find no error in this instruction, as it mirrors our pattern jury instruction on the topic and comports with our case law. So we affirm Briseno's conviction.

         I. BACKGROUND

         Defendant Juan Briseno was indicted and tried for murder, attempted murder, and a number of other RICO-related crimes relating to his two-year association with the East Chicago, Indiana Chapter of the Imperial Gangsters Street Gang (IGs). At the end of the government's case-in-chief, Briseno moved for judgment of acquittal on all counts. The district judge granted Briseno's motion only as to the counts relating to the attempted murder of Andreas Arenivas, who apparently became a target of the IGs after testifying against one of their members in an earlier criminal trial.

         The trial against Briseno continued, and during closing arguments the government made a number of statements that concern the heart of Briseno's appeal. First, the government referenced various alleged facts connecting Briseno to the attempted murder of Arenivas. Second, the government contended that in order for Briseno to be not guilty, the government's witnesses must have conspired to frame him and supply false testimony at trial. Third, the government emphasized that eight of its witnesses deserved to be believed.

         After deliberating for two days, the jury convicted Briseno on nine of the twelve remaining counts: conspiracy to participate in racketeering, conspiracy to possess with intent to distribute at least five kilograms of cocaine and 100 kilograms of marijuana, five separate murders in aid of racketeering, attempted murder in aid of racketeering, and use of a firearm during a crime of violence. 18 U.S.C. §§ 846, 924(c), 1959(a)(1) & (5), 1962(d). The district judge sentenced Briseno to five consecutive terms of life imprisonment for the murders, two consecutive life terms for the conspiracies, a 120-month concurrent sentence for the attempted murder, and a 120-month consecutive sentence for the firearm count. This appeal followed.

         II. ANALYSIS

         Because Briseno failed to object to any of the government's statements at trial that he challenges now, we review the statements for plain error. United States v. Sandoval-Gomez, 295 F.3d 757, 762 (7th Cir. 2002). We begin by exam- ining whether the statements were improper when viewed in isolation; and if the answer is yes, we will review the statements alongside the entire record and ask whether the statements deprived Briseno of a fair trial. United States v. Common, 818 F.3d 323, 331 (7th Cir. 2016). Briseno must also show that the outcome of the proceedings would have been different had the statements not been made. Sandoval-Gomez, 295 F.3d at 762. A statement, while improper, can nevertheless be harmless when considering:

1) the nature and seriousness of the misconduct; 2) the extent to which the comments were invited by the defense; 3) the extent to which the prejudice was ameliorated by the court's instruction to the jury; 4) the defense's opportunity to counter any prejudice; and 5) the weight of the evidence supporting the conviction.

Common, 818 F.3d at 333. In short, we will not grant Briseno a new trial "unless there was an error so egregious that the district judge should have stepped in even though no objection was made." United States v. Alexander, 741 F.3d 866, 870 (7th Cir. 2014). "Improper comments during closing arguments rarely rise to the level of reversible error." Common, 818 F.3d at 331 (citation and internal quotation marks omitted).

         A. Statements Relating to Acquitted Counts Not Erroneous

         Briseno claims that the government improperly argued that he was guilty of attempting to murder Arenivas and of using a firearm in that attempt, since the district judge had previously acquitted him on both counts. This presumes, of course, that the evidence of Briseno's alleged involvement with Arenivas's attempted murder had no bearing on the counts that remained following the judgment of acquittal. Cf. United States v. Bailin, 977 F.2d 270, 276 (7th Cir. 1992) (holding that the government was barred from "relitigating issues that were necessarily and finally ...

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