On March 22, 2005, a grand jury sitting in the Western . 1026, 1040 n. 4 (N.D.Iowa 1998). The question presented is thus when, if ever, someone's association with an enterprise whose affairs have been conducted through a pattern of racketeering activity provides probable cause to believe that the particular offense of a 1962(c) violation may have occurred, that is, that the person may have helped participate in conducting the affairs of the enterprise and have engaged in two or more predicate acts. 1991); United States v. Lewis, 910 F.2d 1367, 1372 (7th Cir.1990) (citations omitted). Because of the link between the Latin Kings colors and the clothing observed in the attic, there was probable cause to believe that whoever the clothing belonged to was associated with and participated, directly or indirectly, in the conduct of Latin Kings' affairs. (emphasis added). The affidavit did not assert that Rosado had committed any of these categories of crime, that he had aided or abetted anyone else in doing so, or that his residence was in any way connected to them. The government therefore contends that Sergeant Harpole had probable cause to lift and open the box, based upon his later testimony that he thought the box "might he potentially a gun case.". The affidavit did not assert that Rosado had engaged in any of the behaviors common to drug and narcotics traffickers; that he had aided or abetted anyone else in such behaviors; or that his residence had any of the characteristics common to drug traffickers' homes. Depending on the circumstances, the murder may have become part of his case, he said. 2d 723 (1971). In addition, Anderson faces drug and gun charges. On June 19, 1998, a federal grand jury returned an indictment naming 33 defendants, allegedly members of the Latin Kings. This is comparable to Arizona v. Hicks,480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. at 22.) One of them was Barragan, who was already under federal investigation in the Hirschfield homicide, attempted murder, drug dealing and robbery. I am not an independent investigative agency," he said. 2.) Believing that he had consent, Sergeant Harpole and other officers entered the residence to conduct the "protective sweep." (Tr. According to the affidavit, Latin King members not only committed serious criminal acts, including murder and arson, but committed predicate acts for the purpose of benefitting the enterprise, including the murder of rival gang members; the murder of suspected government informants; and arson against the person and properties of rival gangs and potential adverse witnesses. Id.[6]. After Rosado's arrest, Sergeant Manfred Harpole of the Milwaukee Police Department asked Rosado's live-in girlfriend (now wife) Marilyn Marrero, for "full consent to search her residence for people or evidence of any crimes." See Lloyd, 71 F.3d at 1263. There is no evidence that any informants accompanied Special Agent Koenig to the probable cause hearing or were available to give testimony before the magistrate judge. [3] The original, signed and sealed affidavit is in the court's file, and no indictment is attached to it; no copy of the indictment is loose in the file; and the docket does not reflect that a copy of the indictment was filed. They asked Hirschfield's family for patience. [7] See United States v. Betts, 16 F.3d 748, 755 (7th Cir.1994), overruled on other grounds by United States v. Mills, 122 F.3d 346 (7th Cir. 8. The affidavit next summarized in two-thirds of a page the consensual "protective sweep" search conducted at the residence earlier in the day and what was found: The affidavit then summarized, based upon law enforcement officers' surveillance *924 and observations, half a page of reasons for believing that Rosado lived at the residence. Pursuant to the search warrant, officers conducted a second search of the residence around 7 p.m., and seized incriminating evidence including the black and gold clothing and the gun case with the bullets. By 2003, new young leaders, such as Barragan, had moved into top roles of the ruthless gang, leaving a bloody trail of shootings and drug dealing through Milwaukee's south side, according to federal court documents. See McKinney, 919 F.2d at 415. 2 0 obj ), rev'd on rehr'g en banc, 199 F.3d 915 (7th Cir.1999). Nonetheless, police may not insulate one officer's deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity. I therefore next consider whether the black and gold clothing, indicating a possible association with a RICO-accused enterprise, could provide "probable cause for believing the occurrence of a crime and the secreting of evidence in specific premises," Harris, 403 U.S. at 584, 91 S. Ct. 2075, and thereby justify a search warrant. Three gang members complied, shooting Hirschfield at least a dozen times, according to federal court records. "the . 2d 38 (1981). Count 3 alleged drug offenses, and was the only count with which Rosado was charged. Jolly ended up with probation after many witnesses changed their stories. The trial was in recess Friday. 'They would come up here and sell out their own mother if they have to.'. An investigation that started in 1987 resulted in charges against 33 members.. This evidence properly allowed the inference that Rosado might be associated with or a member of the Latin Kings. The warrantless search of the contents of the box thus may not be defended as consensual. It would take years to complete the case, as agents sifted through more than 100 criminal acts that could qualify under the federal racketeering statute, including shootings, robberies, drug dealing and extortion. 436 (1948). "I had no idea that he was awaiting sentence and entered that plea. Lloyd, 71 F.3d at 1263 (emphasis added). In the upper story, which was a partially converted attic, Sergeant Harpole and FBI Special Agent Zorka Marinovich observed a pile of clothing strewn about. State legislators considered beefing up the law last year at the request of prosecutors, but the bill failed to pass. I don't know why it wasn't brought to my attention. The Latin King indictment charges 17 members and associates with a criminal conspiracy that spanned a time period from 2003 until November 2015. See also United States v. Ellsworth, 647 F.2d 957, 964 (9th Cir.1981) ("We find no authority for holding, and do not so hold here, that an indictment alone constitutes sufficient probable cause to issue a search warrant."). The magistrate must be detached and neutral, see Steagald, 451 U.S. at 212, 101 S. Ct. 1642, but the grand jury's investigative role prevents it from being fully neutral. See Case No. "Maybe somebody thought he would be taken into custody at the (state court) sentencing," said Gonzales, who looked at the file after the Journal Sentinel spoke with him about the case. Within days of the killing, Milwaukee homicide detectives were rounding up gang members who were in the house when Trevino was killed. The Seventh Circuit has not addressed this question. Nearly 200 schools and more than 1.200 teachers have participated in the . The affidavit must "allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated." Id. [3] The affidavit did not assert that Rosado had been indicted. at 238, 103 S. Ct. 2317. See id., 438 U.S. at 164 n. 6, 98 S. Ct. 2674. Gonzales said he would have been particularly interested in what Barragan told Milwaukee police detectives after he agreed to plead guilty to aiding a felon for dumping Trevino's body. Although not a RICO case, Huebner v. United States,731 F. Supp. See United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir.1995). Rubio is the leading case, and provides the rule that "[i]f such a large portion of the subject organization's activities are illegitimate so that the enterprise could be considered, in effect, wholly illegitimate, then there would certainly be cause to believe that evidence of a suspect's association with that enterprise would aid in a RICO conviction." McKinney, 919 F.2d at 415 (emphasis added). As the above discussion indicates, I decline to follow the Eighth Circuit's decision in United States v. Apker, 705 F.2d 293, 300-01 (8th Cir.1983). 1961(4). To satisfy 1962(c)'s "associated with an[] enterprise" requirement, the government must introduce "evidence that the various associates function as a continuing unit." Since the 2005 indictment, 17 more Latin Kings and gang associates have been charged. Trevino and other Latin Kings accused each other of. (Aff. 2, 2(i).) Even if such tainted information is presented to the magistrate, the search warrant is nonetheless valid "if the untainted information supporting the warrant, considered alone, is sufficient to establish probable cause." Eleven members of the Latin King Nation gang in Hayward and Milwaukee have been arrested on charges of conspiring to distribute cocaine and crack cocaine on and near the Lac Courte Oreilles Reservation in Hayward. A few months later, he agreed to plead guilty. TRENTON Attorney General Peter C. Harvey announced the indictment of six members of the notorious Latin Kings Street Gang on charges related to the 2004 attempted murder of a former gang member. Gonzales said he was never told about the Trevino murder, even though it happened right in the middle of the federal investigation into the Latin Kings. But another gang member said Barragan had a hand in the killing, directing a subordinate to put a garbage bag over Trevino's head before he was killed. 9), discussed below) that Rosado's residence had any link to the commission of crimes. I therefore do not discuss 1962(d) separately. Like Barragan, Jolly was charged with aiding a felon, in a case also involving a killing. McGann v. Northeast Illinois Regional Commuter R.R. See Lloyd, 71 F.3d at 1263. Indeed, this entire paragraph of the affidavit appears to be a non sequitur; it is unconnected to anything else in the affidavit, and nothing at all ties it to Rosado or his residence. at 35.) Federal and state law enforcement have pursued the Latin Kings for more than two decades in Milwaukee. Even though Special Agent Koenig may have been personally ignorant of the falsehood, government agents may not insulate deliberate misstatements merely by relaying them through another officer. It did not state whether the informants made first-hand observations, or whether law enforcement officials independently verified some or all of their claims about firearms. Within the Milwaukee chapter of the gang, there were, at the time of the indictment, four subsets of the Latin Kings: the 19th Street Kings, the Sawyer Kings, the Wild Walker Kings, and the 23rd . she said. The name Majerit first appears in ad 932, when the Christian king Ramiro II of Len razed the town's walls, but there are traces of earlier (even prehistoric) habitation. Gates, 462 U.S. at 234, 103 S. Ct. 2317. The facts of this case are not even close to cases in which the Seventh Circuit has found probable cause to believe that incriminating evidence found in plain view was present: shotgun shells found in a bank robbery case, see United States v. Bruce, 109 F.3d 323, 329 (7th Cir.1997); an empty ammunition box found in a search for drugs, see United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir.1994); a large amount of money found in a defendant's car after a drug transaction, see United States v. Cervantes, 19 F.3d 1151, 1153 (7th Cir.1994); a gun silencer found while searching for drugs, see United States v. Carmany, 901 F.2d 76, 78 (7th Cir.1990); money and maps found in a bank robbery case, see United States v. Walton, 814 F.2d 376, 380 (7th Cir.1987). Other recent cases where defendants eluded justice because of failures in the system: LZ Jolly, a purported gang leader, was charged in the execution of a man and was on the run for years. But the Hirschfield homicide showed the gang wasn't destroyed. See Zurcher v. Stanford Daily,436 U.S. 547, 556 n. 6, 98 S. Ct. 1970, 56 L. Ed. See id. "Hindsight being 20/20, if we thought he was going to run as far and as successfully as he has, we would have picked him up that day (in court)," Gonzales said. 98-M-50. (Tr. See United States v. Leon,468 U.S. 897, 914, 104 S. Ct. 3405, 82 L. Ed. Rubio, 727 F.2d at 793. I must thus consider whether the fact of Rosado's indictment, standing alone, could supply probable cause for a search of his residence. United States v. Markling, 7 F.3d 1309, 1316 (7th Cir.1993). 2d 723 (1964)). He then requested and received permission to search "for people and other Latin King members or any other person who may have been wanted." 3.) Nonetheless, the Seventh Circuit has held that the magistrate must have a substantial basis to conclude that a search would uncover evidence of wrongdoing. (Tr. Barragan slipped away during the sweep, but law enforcement was still tracking him. On that basis, the inference from clothing to probable cause of a violation under 1962(d) of conspiracy to violate 1962(c) is no easier to make than the inference from clothing to probable cause of a violation of 1962(c). There was no hint in that hearing that federal prosecutors were closing in, according to the transcript and Barragan's attorney, Mark Lipscomb. After his arrest in the Trevino homicide, Barragan talked to Milwaukee police detectives at least three times in late September 2004, according to police reports obtained by the Journal Sentinel through the state open records law. x{i@W9y$ KX$%H That must have factored in how he was out of custody," Gonzales said. Rosado raised all of these arguments, most of them verbatim, in his motion before Judge Gorence. "It is amazing that they actually had him in court, knew he was involved in a murder and he got away.". at 486, 78 S. Ct. 1245. [6] Killip's reasoning is repeated verbatim in United States v. Gruber,994 F. Supp. U.S. Giordenello, 357 U.S. at 486, 78 S. Ct. 1245. He was convicted and sentenced to 78 months. Detectives and prosecutors went with Barragan's version, according to the criminal complaint. Lloyd's second prong, requiring probable cause to believe that the evidence would be found in the place to be searched, see id., is easily satisfied by the affidavit's statement that officers observed the Latin Kings-color clothing in the attic of the residence. 1961(1), (5).[5]. The court there held that the fact of grand jury indictment alone was sufficient to provide the magistrate with probable cause to believe that defendants had engaged in criminal activity, leaving as the only issue for the magistrate to determine for him or herself whether there was probable cause to believe that evidence regarding the crime was likely to be found at the place to be searched. The Christian king Alfonso VI of Castile and Len captured the town from the Muslims in 1083, and thereafter a . At the evidentiary hearing, Sergeant Harpole and Marrero gave conflicting testimony about whether Marrero voluntarily consented to such a search. They allowed Marrero to follow them at a short distance. [2] According to law enforcement *922 officials who investigated the Latin Kings, black and gold are the Latin Kings' "official colors.". In other words, where an association is not in effect wholly illegitimate, a search warrant must be supported by some additional nexus between association with the organization and an alleged pattern of racketeering activity. In the one report released by police, Barragan admitted he had earlier lied to detectives. Where the affidavit relies upon one or more informants, the magistrate judge must undertake "a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip." The affidavit next spent half a page specifying various categories of crimes that "Latin King members" had allegedly committed, and asserted that the Latin Kings were an association-in-fact enterprise under the RICO statute, 18 U.S.C. Marrero refused. (Docket # 1027 [hereinafter "Recommendation"].) The government next seeks to defend this search under the "plain view" exception to the Fourth Amendment. The affidavit was thus recklessly false. Probable cause thus was not present, and the plain view exception does not apply. See Giordenello v. United States,357 U.S. 480, 485-86, 78 S. Ct. 1245, 2 L. Ed. Thus, even though the presence of Latin Kings-color clothing in Rosado's attic might allow probable cause to believe that Rosado was a Latin King member, it would not, without more, allow the inference that Rosado had committed a crime. at 16 [hereinafter "Tr."]) "That was not a great moment," Gonzales said. See 18 U.S.C. (Id. The argument escalated. See Steagald v. United States,451 U.S. 204, 212, 101 S. Ct. 1642, 68 L. Ed. 636(b) (1) (B). United States v. McKinney, 919 F.2d 405, 415 (7th Cir.1990). Atty., David Robles, Sp. See Murray, 487 U.S. at 542, 108 S. Ct. 2529. Sergeant Harpole testified that no promises or threats were made, and no weapons were drawn, while Marrero contended that she allowed the protective search only after being threatened with arrest and incarceration if she refused.

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