United States v. Medina, Ignacio ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1700, 02-1796, 02-2232, 02-2246, 02-2252,
02-2353, 02-2518, 02-2824 & 02-3998
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IGNACIO MEDINA, LESLIE CHAMBERS, THOMAS ROSS,
GERALD PITTMAN, FIDELMAR CORTES, JOSE RODRIGUEZ,
WALDEMAR GONZALEZ, MARLON REGALADO, and
JUAN HERNANDEZ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 469—Robert W. Gettleman, Judge.
____________
ARGUED SEPTEMBER 16, 2005—DECIDED DECEMBER 8, 2005
____________
Before WOOD, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. Seventeen members or asso-
ciates of a Chicago street gang with a delightful name—the
Maniac Latin Disciples—were charged in a 50-count
indictment with drug and firearms offenses. Ten were
convicted in a trial which lasted several months. Nine of the
10 now appeal their convictions; six of the nine also appeal
their sentences.
The drug distribution conspiracy was uncovered through
the usual investigative techniques. There were controlled
2 Nos. 02-1700, 02-1796, et al.
purchases by informants and undercover agents, seizures of
narcotics and money, and visual surveillance by law
enforcement agents. There were approximately 300 tape
recordings of telephone conversations intercepted pursu-
ant to court-authorized wiretaps, and there was information
provided by former members and associates of the conspir-
acy. All of which led to the indictment, in which all defen-
dants were charged with conspiracy to distribute narcotics,
pursuant to 21 U.S.C. § 846. In addition to the conspiracy,
some of the defendants were charged with substantive
counts of possessing with the intent to distribute narcotics
and with distribution of narcotics (21 U.S.C. § 841(a)(1)).
Some were charged with using the telephone to facilitate
the conspiracy (21 U.S.C. § 843(b)). Some were charged with
firearms offenses (18 U.S.C. §§ 922(g) and 924(c)). Some of
those charged entered guilty pleas with cooperation agree-
ments and testified against the others; some simply entered
guilty pleas; one had the indictment dismissed as to him;
and one remains a fugitive. As we said, nine of those who
proceeded to trial now appear before us.
Our nine appellants were convicted of the conspiracy
to distribute narcotics as well as other substantive offenses.
They were sentenced to concurrent terms. We relate only
the controlling sentence. Ignacio Medina received a 121-
month term; Leslie Chambers, 151 months; Waldemar
Gonzalez, 160 months; Fidelmar Cortes, 235 months; Jose
Rodriguez, 292 months; Marlon Regalado, 324 months; and
Juan Hernandez, 360 months. Thomas Ross and Gerald
Pittman received life sentences.
The general outline of the operation, as shown by the
evidence at trial which we accept as true, is as follows. The
gang was divided into approximately 24 sections, each
known by the street intersection at which it was
located: Beach and Paulina or Rockwell and Potomac, for
instance. The sections were required to follow the rules
established by the gang leaders. The gang members en-
Nos. 02-1700, 02-1796, et al. 3
gaged in both wholesale and street-level drug dealing. The
core of the drug distribution conspiracy was comprised of
Maniac Latin Disciple (MLD) members and associates who
regularly distributed wholesale quantities of cocaine, crack,
and marijuana. These quantities ranged from 1/8 of an
ounce (an “eight-ball” in the trade) to nine ounces. These
quantities were often broken down and repackaged into
smaller quantities which were sold on the street corners
and in drug houses. Lower-level members of the gang were
required to take turns each day selling dime bags of crack
cocaine in what they called “throw lines.” What this means,
according to the testimony of Jose Aguirre, is that the
sellers on a given corner had to take turns. When a cus-
tomer came, one person would sell to him and then go to the
end of the line to wait his turn to sell to another customer.
Other armed gang members worked security in order to
protect the street corner from both the police and from rival
gangs.
Ross, also known as “Outlaw,” was a top-ranking MLD,
who had what seemed to be a limitless supply of drugs. He
became the principal supplier of cocaine and crack to the
MLDs in about 1997. Ross had a crew of MLD helpers,
including Cortes (aka “Fidel” and Bajia”), Marcos Zacarias
(“Dusty”), Gonzalez (“Waldy”), and Regalado. Ross arranged
the delivery of drugs to many individuals, in addition to the
appellants. Ross’s workers packaged and distributed drugs,
picked up drugs and drug proceeds, and supplied the
leaders of the other MLD chapters in order to get the drugs
to the street sellers. Ross also ordered members of the MLD
to use violence to protect MLD locations from encroachment
by rival gangs.
Two other high-ranking members of the gang included the
“Bum” brothers—Juan Hernandez aka “Bum” and David
Hernandez aka “Little Bum.” They each ran a street-corner
chapter of the MLD. Jose Rodriguez (“Baby D”) was a long-
time member of the MLDs and completed a lengthy prison
4 Nos. 02-1700, 02-1796, et al.
term about 6 months before his arrest in this case. Immedi-
ately upon his release, he resumed his association with the
MLD and its drug-trafficking activities.
Pittman was another senior member of the gang and ran
a street-corner section. Later, he received large amounts of
narcotics directly from Ross and distributed them to other
MLDs and customers. Medina (“Nacho”), a member of the
gang, and Chambers (“Black Les”), an associate of the gang,
also received drugs from Ross to sell to their customers.
The members attended meetings and paid dues, which
included portions of the narcotics profits. Dues were used to
purchase weapons for the gang’s use.
In this appeal from their convictions, the appellants join
in contending that they must be retried because of bias on
the part of the jury foreman and because the government
changed its theory of the conspiracy during the trial,
making the admission of evidence of gang affiliation
improper. Medina, Chambers, Rodriguez, Hernandez, and
Gonzalez claim that there was insufficient evidence to
convict them of conspiracy; they say they had a mere buyer-
seller relationship with Ross. Pittman claims he was denied
his right to testify when the judge denied his motion to
reopen the evidence to allow his testimony. Cortes contends
that the judge abused his discretion in giving a supplemen-
tal jury instruction in response to a question from the jury,
and he claims his trial should have been severed because he
and Medina had mutually antagonistic defenses. Rodriguez
also claims he should have been granted a severance.
Hernandez claims that the testimony of Jose Aguirre, which
involved Hernandez’s leadership of the Beach and Paulina
chapter from 1988 to 1990, effectively amended the indict-
ment, which referred to activities “on or before the early
1990’s.” Obviously, some of these issues have more sub-
stance than others. While we have carefully considered
them all, we will discuss at length those which, in our view,
merit more thorough explanation.
Nos. 02-1700, 02-1796, et al. 5
As to the sentences, the three with the shortest terms,
Medina, Chambers, and Gonzalez—apparently in an
astute decision to leave well enough alone and not risk
winning longer sentences—do not appeal. As to the
others, the government concedes that Ross, Pittman, and
Regalado must be resentenced and that Cortes, Rodriguez,
and Hernandez are entitled to a remand pursuant to our
decision in United States v. Paladino, 401 F.3d 471 (7th Cir.
2005).
The primary issue on appeal is a claim of juror bias,
which, the defendants argue, requires a new trial. The
district court disagreed. We review a decision to deny a
motion for a new trial based on juror bias for an abuse
of discretion, and a district court’s decision will be reversed
only if there is a strong indication of prejudicial error.
United States v. McClinton, 135 F.3d 1178 (7th Cir. 1998).
We are instructed that there are “compelling institutional
considerations militating” in favor of appellate deference to
the trial judge’s evaluation of the significance of possible
juror bias. Arizona v. Washington, 434 U.S. 497, 513-14
(1978). In fact, “due process does not require a new trial
every time a juror has been placed in a potentially compro-
mising situation.” Smith v. Phillips, 455 U.S. 209, 217
(1982). In most cases, the redress for assertions of bias is a
hearing in which the defendant is given a chance to prove
actual bias. In McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548, 556 (1984), the Supreme Court
set out the standard for determining when potential juror
responses during the selection process require a new
trial: a party must first show “that a juror failed to answer
honestly a material question on voir dire,” and, if success-
ful, then must demonstrate that “a correct response would
have provided a valid basis for a challenge for cause.”
In our case, the juror involved was a fellow named
Andrew Heytow. Heytow, who has a college degree and
owns his own company, had never been on a jury before
6 Nos. 02-1700, 02-1796, et al.
being called to service in this case. He became the jury’s
foreperson. At issue here are Heytow’s answers to two
written questions, numbers 11 and 12, given during the voir
dire presided over by District Judge Robert W. Gettleman.
Question 11. You will hear evidence in this case about
alleged involvement with street gangs.
Will this evidence affect your ability to be
a fair and impartial juror in this case?
Heytow said he “had no problem” with number 11.
Question 12. Whether you or any member of your
family or a close friend belong to any
group that:
* defends or opposes gun use or owner-
ship;
* deals with drug abuse;
* deal with issues involving street
gangs.
Heytow’s response was, “I have no problem with number
12.”
The claim that Heytow gave a materially false answer
to question 12 was first raised in the reply brief in this
court. We will return to that issue following a look at
question 11, which is the one the defendants focused on in
the district court. They argued that Heytow’s answer to that
question was materially false and that a correct response
would have led to a “valid” challenge for cause. However, as
is quite obvious, question 11 is subjective, making it darn
near impossible to prove that a given answer was false. And
in their attempt to prove that Heytow lied when he said he
could be fair and impartial, the defendants presented at a
post-trial hearing an argument that commentator Paul
Harvey would call “the rest of the story.”
Nos. 02-1700, 02-1796, et al. 7
A day1 after the jury convicted the defendants, Heytow
called the office of the United States Attorney and re-
quested a meeting with the prosecutors so he could tell
them things he thought would be helpful in future cases—to
make things “more clear for a jurist.” Within weeks of
Heytow’s call, the meeting was held. Soon afterwards, one
of the prosecutors (AUSA Jon King) told one (or perhaps
more, we’re not sure) of the defense lawyers about Heytow’s
request and the meeting that followed. King, according to
the defense, also said Heytow mentioned that prostitutes
frequented the area around his business until gangs took
over. Upon this acorn, the defense sought to grow an oak
tree. Sensing from this scenario that Heytow was too cozy
with the prosecutors, or that he had some sort of ax to grind
against the defendants, the defense sought to establish that
his answer to question 11 was a bold-faced lie. They first
argue that the very fact that Heytow asked to meet with
prosecutors and not defense lawyers evidences his bias
against street gangs and shows that he was on the govern-
ment’s side. That he might have been biased, however, is
certainly not the only, or most reasonable, conclusion which
can be drawn from his actions.
As a preliminary matter, we note that Heytow’s request
for a meeting seems to us to be a bit odd. But odd things
often happen during (and even after) trials, especially long
ones. And regardless of how the request for the meeting
struck Judge Gettleman, he observed:
[J]urors are free to talk to any—we tell them this.
Jurors are free to talk to anybody. I told this jury that,
too. I tell every jury that. If the lawyers are out there
and you want to talk to them, you’re free to talk
to them. That’s what we do with our jurors.
1
The government says it was approximately one week, but why
quibble.
8 Nos. 02-1700, 02-1796, et al.
So they may tell you things you don’t want to hear.
They don’t like the color of your tie or they don’t like
your witnesses or they don’t like your case, or whatever.
But that’s what you’re there—I mean, it’s instructive in
a way for lawyers to talk to jurors, as you all know.
We also note that Heytow’s request to talk with the
prosecutors came after months of trial and several days
of jury deliberations resulting in guilty verdicts. At that
point, the defendants’ presumption of innocence was
overcome. The government won. Heytow’s role in the
case was a closed book. That he wanted to talk to the
government lawyers after the verdict says nothing about
how he felt before trial.
Somewhat more on point is the defense contention that
during his talk with the prosecution, as revealed by his
testimony at the post-trial hearing, Heytow admitted to, in
the words of the defense, “many years of negative experi-
ences with street gangs . . .” and “extensive and adverse
experiences with street gangs (and perhaps the very
same gang of which eight of the ten defendants were
members) . . . .”
We think this is first-degree hyperbole. During his post-
trial hearing testimony, Heytow revealed that his busi-
ness at 4900 West Bloomingdale in Chicago had “a couple
windows broken” and there was graffiti on his building. Two
pictures of Heytow’s red brick building showing graffiti on
the bottom couple of feet were admitted into evidence.
Although it is difficult to make out what the graffiti says or
means, with effort one can make out some letters and
perhaps a pitchfork, which we’ll presume refers to the
Maniac Latin Disciples. Importantly, however, Heytow
could not say whether the graffiti was the result of gang
activity or just “kids in the community.”
Heytow also stated that there had been a problem with
prostitution near his business and that, once the prostitutes
Nos. 02-1700, 02-1796, et al. 9
were driven out, “a gang of kids had come in and they were
there because they were no longer worried about who was
going to monitor what was happening on Bloomingdale.”
Also at the hearing, Heytow acknowledged that sometimes
he makes the “leap that the young people are part of gangs
and sometimes they’re not. But that’s not based on
direct . . . that I know they’re part of gangs.” The defen-
dants characterize this testimony as equivocation—
Heytow’s minimizing his experience with gangs. That is
one interpretation, but certainly not the only, or even the
most defensible, one.
As we said, the graffiti which was on Heytow’s building
might well have been gang-, or even MLD-, related. The
evidence falls short of showing, however, that Heytow knew
what the graffiti stood for or that it rendered him unable to
fairly judge the evidence in the case. He seemed to think of
the vandals as kids—whether a gang or just in “a bunch.”
And, in fact, the graffiti looks to be the slapdash work of
kids with a can of spray paint, not that of “graffiti artists”
or, for that matter, of adult drug dealers. The defendants in
this case were not just a bunch of kids breaking windows
and spray-painting buildings, as the sophistication of the
drug distribution system shows.
Furthermore, as Judge Gettleman noted, nearly everyone
living in a big city has had an experience with gangs. He
said, “We’ve all had experience with graffiti . . . either
boarding a defaced El train or having a garage sprayed or
something like that.” In fact, the judge thought, it is
possible to look at Heytow in a different light. He has a
business and continues to operate it “in a district which
at least according to his description is rather dicey. And
some might take that as an indicia of his tolerance for that
aspect of urban life that you’ve used to argue just the
opposite.”
So all in all, as to question 11 (the only one before the
district court) which asked whether in the face of evi-
10 Nos. 02-1700, 02-1796, et al.
dence of gang activity the jurors could be fair and impartial,
Judge Gettleman said he did not disbelieve Heytow: “I
think he thought he could be fair.”
Going beyond this, however, the judge did not close his
eyes to the fact that the phrasing of question 11 was part of
the problem. It, as is clear by now, asked only whether the
jurors could be fair and impartial when faced with evidence
of gang activity. It did not ask whether the jurors had
experience with gangs, trouble with gangs, belonged to a
gang, etc. It did not venture into absurdity and ask whether
jurors liked gangs. As to the question, Judge Gettleman
said:
[T]he basic question is: Did he answer truthfully when
he answered the voir dire question? Now, we can all
go back and say, well, maybe we should compose a
better voir dire question. This is the one that I have
been using, I think I inherited it from one of my col-
leagues, and I am not going to use it. I don’t want to go
through this again, and I want to make sure that we
answer—that we ask it a little more specifically.
The judge added that he did not deny anybody’s suggestion
that a more precise question, like “Have you had an experi-
ence with gangs?” be asked. Keeping his eye on the ball, the
judge continued:
That isn’t the question we asked this gentleman.
In sum, Judge Gettleman held a hearing pursuant to
McDonough. He thoughtfully and with an open mind
considered the issues raised. His conclusion was that
Heytow was credible and answered truthfully when he said
he could fairly and impartially judge the evidence. We
cannot say that the judge abused his discretion.
The defendants, however, also argue that, given the
situation, Heytow’s bias should be presumed. For this
proposition, they rely on Hunley v. Godinez, 975 F.2d 316Nos. 02-1700, 02-1796, et al. 11
(7th Cir. 1992), a case with an unusual set of facts which we
found created an “extreme situation.” The victim in the case
was fatally stabbed in her Chicago apartment. Because
there were no signs of a forced entry, the police concluded
that an intruder gained entry with a key. The defendant in
the case (Hunley, of course) was employed at a hardware
store close to the victim’s apartment and had done lock
work there before the murder. Also, a nearby video store
where the defendant also did lock work was recently
burglarized.
When the jury considering Hunley’s fate failed to
reach a verdict after the first day of deliberations, the jurors
were sequestered in a hotel for the night. That night, while
the jurors were asleep, a burglar made an unforced entry
into two of the jurors’ rooms (apparently two jurors were
assigned to each room) with a pass key. Several items
belonging to the jurors were snatched. The burglar did not
discriminate as two of the four juror victims had voted to
acquit Hunley during deliberations that day, while the
other two thought Hunley was guilty. And all 12 jurors,
quite naturally, discussed the burglary among themselves,
and all were asked by the police to check their valuables.
Under these unusual and compelling circumstances, we
affirmed a finding of implied bias, while at the same time
making very clear that “the ‘implied bias’ test should rarely
apply.” Hunley, at 320. In fact, cases cited in Hunley where
implied bias is found involve crimes very closely related to
the ones at issue in the trials in which the jurors are
sitting. See Burton v. Johnson, 948 F.2d 1150 (10th Cir.
1991), and United States v. Eubanks, 591 F.2d 513 (9th Cir.
1979). On the other hand, in a situation more like, but also
more egregious than, the case before us, bias was not
implied. The Supreme Court in Smith v. Phillips, 455 U.S.
209 (1982), did not find implied bias when, during the trial,
a juror submitted an application for employment as a felony
investigator in the office of the district attorney, whose staff
12 Nos. 02-1700, 02-1796, et al.
was prosecuting the case. If there is no implied bias in that
situation, we would be hard-pressed to find it in the present
case.
We will also consider issues raised by question 12, not
without noting, however, that the allegations of bias in this
case seem to be something of a moving target. As we said,
this issue was raised for the first time in the reply brief.
Question 12 is a direct question, seeking objective infor-
mation. The issue is whether Heytow answered truthfully
when he implied that he did not belong to any group which
dealt with issues involving street gangs. Appellants claim
that the facts show that Heytow did, in fact, belong to a
“group” which dealt with street gangs.
The facts show that he and some of the other area
business owners worked together on neighborhood prob-
lems. The issue, then, is whether that means necessarily
that he belonged to a “group” that “deals with issues
involving street gangs” and that therefore his answer
to question 12 was false. We are not convinced that it
does. Question 12 involves three kinds of “groups”: those
that defend or oppose gun use or ownership, those that deal
with drug abuse, and those that deal with “issues involving
street gangs.” A prospective juror could easily read the
question and conclude that formal groups with formal
membership—for instance, the National Rifle Associa-
tion—are what the question refers to, not to neighbors
working together to deal with graffiti and broken windows.
Without more insight into his thought processes—which
could have been ferreted out had the district court been told
of the claim—we cannot say that Heytow answered the
question falsely. He did not have membership in any
organized group; he simply worked with his neighbors on
neighborhood issues.
On this point, McDonough (464 U.S. 548) is instructive.
It involved a claim for damages arising because a child’s
Nos. 02-1700, 02-1796, et al. 13
feet “came in contact with the blades of a riding lawn-
mower.” At voir dire, prospective jurors were asked whether
they or their immediate families had “sustained any severe
injury, not necessarily as severe as Billy, but sustained any
injuries whether it was an accident at home, or on the farm
or at work that resulted in any disability or prolonged pain
and suffering . . . ?” A man, who eventually became a juror,
did not affirmatively respond to the question. Later, it was
discovered that his son received a broken leg as a result of
an exploding tire. After discussing answers from some of
the other prospective jurors, answers which revealed that
the jurors had different understandings of what sort of
injury was “severe,” the Court determined that the man’s
answer to the question was not dishonest. The Court
summed up in language applicable to the present case:
To invalidate the result of a 3-week trial because of a
juror’s mistaken, though honest, response to a question,
is to insist on something closer to perfection than our
judicial system can be expected to give.
At 555. In the case before us, we cannot say that Judge
Gettleman abused his discretion in his evaluation of
Heytow’s answers or that the situation calls for invoking
the rare finding of implied bias.
We now turn to the claim that the judge abused his
discretion when he denied Pittman’s motion to reopen the
case and give testimony. The court has discretion in
deciding whether to reopen the evidence even when the
request involves such an important issue as a defendant’s
right to testify. Morris v. Slappy, 461 U.S. 1, 13 n.5 (1983).
In evaluating a request to reopen evidence, the court
can consider whether the evidence is relevant and ad-
missible, whether it is timely, whether admitting the
evidence would distort its importance, whether the par-
ties would be prejudiced, and the reason for the untimeli-
ness. United States v. Bayer, 331 U.S. 532 (1947).
14 Nos. 02-1700, 02-1796, et al.
Toward the end of the trial, Judge Gettleman, in discuss-
ing scheduling, noted that there was at least a possibility
that Pittman would be testifying. On March 19, 2001,
Pittman’s counsel stated to the court that, in fact, he
thought Pittman would testify. Counsel said he advised
Pittman that he had a right to testify but said that he had
advised against it. For one thing, counsel thought the
testimony would open the door to evidentiary matters
which, up to that point, the government had not been
allowed to explore. Counsel expected that other defendants
would object on the basis that a door, better left closed,
would be opened. And, in fact, their objections were vigor-
ous. Secondly, counsel indicated his own discomfort with
the testimony:
Your Honor, I may be asking for a more unusual
procedure in testimony in that there are certain ques-
tions and answers which I do not want to elicit that I
don’t want to participate in that inquiry and
the defendant wants to testify to.
Counsel was weighing Pittman’s constitutional right to
testify and his own ethical obligations.
After a lunch break, Pittman was apparently prepared to
testify. Counsel resolved his ethical dilemma by his inten-
tion to ask “a fairly open-ended question”; he indicated that
the government had agreed that was the proper way to
proceed. (As an aside, we note, however, that the govern-
ment had no objection to Pittman’s testimony and may have
welcomed it.) Because one of the defense lawyers noted that
he probably would not have objections to questions but that
he might have objections to Pittman’s answers, Pittman
was cautioned to be vigilant to stop his answer if an
objection was lodged. Apparently not entirely satisfied with
those ground rules, the judge remarked that one way to
handle the objections was to have a voir dire of Pittman
prior to the actual testimony.
Nos. 02-1700, 02-1796, et al. 15
Suddenly, at this point, counsel said the issue was
moot; that Pittman had decided that he did not want to
testify. The judge informed Pittman again that he had an
absolute right to testify and an absolute right to decline
to do so. Pittman was asked whether he understood, and he
said he did. The judge said, “And is it your choice not
to testify?” Pittman answered, “Yes, it is.” The testimony
portion of the trial ended that day—March 19. The judge
informed the jury that testimony was completed and sent
them home to return on April 2 for instructions, closing
arguments, and deliberations.
Then, 2 days later on March 21, court was convened
without the jury to consider defense motions and jury
instructions. Pittman asked to address the court personally
and asked to reopen the evidence in order to testify. He
claimed that when he decided not to testify, he
was pressured by his codefendants. His counsel, on the
other hand, stated that when Pittman originally made his
decision not to testify, his reasons seemed sound. Pittman’s
request was denied.
It was not until April 17, when Pittman filed a pro se
motion for a new trial, that he alleged that the only rea-
son he decided not to testify was that the other defendants
“threatened” him with harm or death if he did. On May 31,
counsel filed a motion for a new trial on the grounds that
Pittman’s right to testify was abrogated, and on July 11 an
evidentiary hearing was held. It was then that Pittman,
supported by defendant Chambers, testified about the
alleged threats which convinced him not to testify. The
judge correctly perceived his task as determining wheth-
er Pittman was simply “pressured” in some way, or whether
he was told, for instance, “If you testify, I’ll kill you or I’ll
beat you up or I’ll harm you in some way.”
Ultimately, the judge found the story of the threats
unconvincing because Pittman never told anyone about
them: “[T]here was just no reason for him not to tell me
16 Nos. 02-1700, 02-1796, et al.
what had happened or to tell you and then you could have
let me know what had happened.”
He continued:
I might have taken an entirely different approach,
because we still had the jury in the box, we still had,
you know, an opportunity, even though I think it would
have been procedurally unorthodox and it would have,
you know, skewed or turned it on its head or whatever
else you want to say for the reasons I didn’t grant the
motion at that time.
The judge concluded that Pittman had not met his burden.
Looking at the record as a whole, we cannot say that Judge
Gettleman abused his discretion in refusing to reopen the
case to allow Pittman’s testimony. The testimony may have
contained perjury. It may, in fact, have been harmful to
him. And Pittman waited too long to present his story
of potential danger to him if he testified.
Five of the defendants—Medina, Chambers, Rodriguez,
Hernandez, and Gonzalez—contend that the evidence
was insufficient to convict them of the conspiracy count.
They say they were mere buyers of narcotics, not conspira-
tors.
A conspiracy under 21 U.S.C. § 846 requires an agree-
ment between two or more people to possess with the intent
to distribute narcotics. It requires that each defendant have
joined the agreement knowingly and intentionally. United
States v. Gardner, 238 F.3d 878 (7th Cir. 2001). A conspir-
acy can be established by circumstantial evidence. United
States v. Brisk, 171 F.3d 514 (7th Cir. 1999). However, the
agreement must amount to more than simply a sale of the
drugs themselves; there must be “an understanding—
explicit or implicit—among co-conspirators to work together
to commit the offense.” United States v. Curtis, 324 F.3d
501, 505 (7th Cir. 2003). The defendants must have known
Nos. 02-1700, 02-1796, et al. 17
about the conspiracy and have chosen to associate with the
“criminal scheme.” Id.A conspiracy is distinguished from a buyer-seller relation-
ship by evidence of a “prolonged and actively pursued
course of sales, coupled with the defendants’ knowledge
of and shared stake in the illegal venture.” United States v.
Suggs, 374 F.3d 508, 518 (7th Cir. 2004). Factors considered
in determining what sort of relationship exists include
whether there was prolonged cooperation between the
parties, a level of mutual trust, standardized dealings, and
sales on credit (known as “fronting”). The quantity of drugs
involved is also a consideration. Id. The factfinder must
judge where on a continuum between buyer-seller and
conspirator a defendant’s actions lie. In this case, a properly
instructed jury found that the five defendants were conspir-
ators.
Our evaluation of whether the evidence was sufficient to
sustain the conviction requires us to examine the evidence
in the light most favorable to the prosecution and determine
whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). As to each
defendant, we find the evidence sufficient.
The evidence linking Medina to the conspiracy comes
primarily from the wiretaps. He argues that the “Nacho”
referred to on the tapes is someone else with that nickname,
not him. There is sufficient evidence, however, to show that
Nacho is Medina and that Medina is a conspirator.
Medina’s nickname was Nacho and he is the only “Nacho”
who ordered drugs from Ross. None of the speakers ever
expressed doubt about who Nacho was. In fact, it appears
from the wiretaps that the participants knew Nacho and
had a regular spot at which they met him. The tapes show
that he ordered significant quantities of drugs—on one tape
two pounds of marijuana and on another four and a half
18 Nos. 02-1700, 02-1796, et al.
ounces of crack. One can also infer that Ross fronted drugs
to Nacho. Nacho said he was getting drugs from Ross
because another supplier required him to pay up
front—apparently in contrast to Ross. Nacho is also listed
on Ross’s drug ledger as owing $2,750. Although the
defendants attack the clarity of the drug ledger, we can’t
expect that drug dealers will keep the kind of meticulous
records maintained by the editors of “Total Baseball” (“The
Ultimate Encyclopedia of Baseball”). Viewed in the light
most favorable to the government, the evidence was suffi-
cient to sustain Medina’s conviction.
Chambers was apparently less involved with the con-
spiracy than some of the others, but the evidence is,
nevertheless, sufficient to sustain his conviction. He was
aware that the goal of the conspiracy was to distribute
narcotics, and he acted to further the goal. A fair inference
is that Ross supplied him with cocaine from December 1998
until June 1999. Furthermore, the drug ledger showed that
in June 1999 Chambers owed Ross $1,175. Within a 5-day
period, Chambers twice asked to be supplied with more
than user quantities. Chambers, in fact, on two occasions
referred to specific persons he was selling to. Chambers was
not an MLD member but was nevertheless allowed to sell at
an MLD corner, allowing an inference that Ross trusted
him.
Jose Rodriguez was a long-time member of the MLDs
but had been in prison for a long period of time and was
released on November 23, 1998. Not wasting much time, he
called Ross on December 16. Rodriguez told Ross he wanted
to start working with him. Ross gave him a zone in which
to sell and started supplying him with drugs. In April 1999,
Rodriguez sold cocaine to a person who was cooperating
with the government; Rodriguez made clear that Ross was
the source of the drugs. The jury could also infer that Ross
was fronting drugs to Rodriguez. At one point, Rodriguez
wanted to return two ounces of drugs to Ross, but, as a
Nos. 02-1700, 02-1796, et al. 19
result of that transaction, rather than Ross then owing
Rodriguez money, it was the other way around. The only
explanation would be that Ross fronted the drugs. So,
although Rodriguez was not around for a long period of
time, the evidence was sufficient to show that he joined the
conspiracy almost immediately after being released from
prison.
Juan Hernandez (aka Bum) was a high-ranking MLD,
belonging to the Rockwell and Potomac section. He was
chief of the Beach and Paulina section from about 1986
until 1990. Then, in the late 1990s, he ran the Rockwell and
Potomac section, one of the MLD street corners where drugs
were sold on a daily basis.2
There is also evidence that Hernandez ordered crack
and marijuana from Ross in 1999 in amounts that were not
for personal use. The jury could infer that there was a high
level of trust between the two. Ross was selling drugs to
Hernandez on credit, and as Hernandez admitted in a post-
arrest statement, he was fronted marijuana by another
MLD member. The evidence is sufficient to link Hernandez
to the conspiracy.
Gonzalez also contends there was insufficient evidence to
show he was a member of the conspiracy. However, the
wiretaps provide evidence that Gonzalez obtained drugs
2
Some of the evidence against Hernandez comes from the
testimony of Jose Aguirre, who discussed Hernandez’s drug
dealing from 1988 through 1990. Hernandez contends that it
was error to admit the evidence, which in his view construc-
tively amended the indictment by expanding the time period.
Judge Gettleman found the evidence was intricately related to the
conspiracy. We review evidentiary rulings for an abuse of discre-
tion. United States v. Spaeni, 60 F.3d 313 (7th Cir. 1995). We
cannot find that the evidence was improperly admitted. Aguirre’s
testimony contributed to the jury’s understanding of the scope of
the drug operation and how it was run.
20 Nos. 02-1700, 02-1796, et al.
directly from Ross and worked for Ross delivering drugs. He
was a member of the Beach and Paulina section and sold
drugs in a throw line on that corner in the mid-1990s. He
then rose to something of a leadership position, overseeing
the daily operation of the corner. Once again, we find the
evidence sufficient to sustain the conviction.
The remainder of the appellants’ arguments need little
comment. They argue that there was a variance between
the charges in the indictment and the proof at trial. Basi-
cally, they say that the government shifted its theory from
one that involved a MLD drug organization to one center-
ing, not on the gang, but on Ross. Given that shift, they
argue that evidence about the gang was improperly admit-
ted and unduly prejudicial, pursuant to Federal Rule of
Evidence 403. The argument is without merit. Ross
was obviously a central figure in the conspiracy, but the
theory was and remained that it was an MLD operation. At
closing, the government argued:
And the best way to describe the agreement is to
describe it as the Thomas Ross Maniac Latin Disciple
drug distribution enterprise. This network began in the
early 1990’s, and the Maniac Latin Disciple street gang
provided the loose structure within which this enter-
prise evolved.
The gang provided the defendants with a network of
relationships, a friendship network as well as a busi-
ness network. And this network was an organized
system of selling cocaine, powder cocaine, crack cocaine,
and marijuana.
Cortes argues that the jury was improperly instructed
in response to their request for recordings of calls identified
in count 2. The court’s reply was that the recordings were
not admitted into evidence and were therefore not available.
The jury was instructed to decide the count on the basis of
the evidence admitted into the record. Cortes argues that
Nos. 02-1700, 02-1796, et al. 21
the instruction gave the government the benefit of evidence
not admitted into the record. As to a supplemental instruc-
tion, we consider whether the instructions as a whole
adequately treat the issue, whether the supplemental
instruction is a correct statement of the law, and whether
the court specifically answered the question. United States
v. Franco, 874 F.2d 1136 (7th Cir. 1989). Cortes does not
contend that the instruction was an incorrect statement of
the law. We find that it also specifically answers the jury’s
question and adequately treated the issue. We see no error.
Rodriguez and Cortes also claim the court improperly
denied their motion to sever their trials from the other
defendants. This also is a decision we review for an abuse
of discretion. United States v. Mietus, 237 F.3d 866 (7th Cir.
2001); see Zafiro v. United States, 506 U.S. 534 (1993).
Cortes says his theory of the case was in direct conflict with
that of his codefendant Medina. Rodriguez is concerned
about the spill-over effect of the gang evidence. Neither
defendant convinces us that severance was required.
We therefore AFFIRM the convictions of all nine defen-
dants but REMAND the cases of Ross, Pittman, and Regalado
for resentencing and those of Cortes, Rodriguez, and
Hernandez, for further proceedings pursuant to proce-
dure announced in Paladino.
22 Nos. 02-1700, 02-1796, et al.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-8-05