September 9, 2016
from the United States District Court for the Northern
District of Indiana, Hammond Division. No. 11 CR 00077 -
Philip P. Simon, Chief Judge.
Posner, Manion, and Williams, Circuit Judges.
WILLIAMS, CIRCUIT JUDGE.
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
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.
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
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.
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
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.
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
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).
Statements Relating to Acquitted Counts Not
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 ...