United States v. Prieto, Thomas ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-3484 & 07-3485
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HOMAS P RIETO and F ERNANDO S ANZ, a/k/a
Julio Castro-Cardenas, a/k/a Nicolas Cardenas,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 05 CR 139—Philip P. Simon, Judge.
A RGUED S EPTEMBER 4, 2008—D ECIDED D ECEMBER 2, 2008
Before M ANION, W OOD , and T INDER, Circuit Judges.
M ANION, Circuit Judge. After a traffic stop, officers found
over four kilograms of methamphetamine hidden in the
bumpers of the Honda Civic in which the defendants
Thomas Prieto and Fernando Sanz (collectively “the
appellants”) were traveling. The appellants were both
charged with possessing with the intent to distribute
more than 500 grams of a substance containing metham-
2 Nos. 07-3484 & 07-3485
phetamine in violation of 21 U.S.C. § 841(a)(1). After a
three-day trial, a jury found Prieto and Sanz guilty. They
appeal, alleging a variety of trial errors. We affirm.
I.
On August 26, 2005, Commander Oscar Martinez of the
Lake County Police Department was about to finish his
patrol for the day when he noticed the Honda Civic in
which Prieto and Sanz were traveling veer on and off
the highway’s shoulder on I-65 south of the Crown Point,
Indiana, exit. Martinez stopped the Civic. A video camera
mounted inside Martinez’s police cruiser captured the
entire stop. In addition, a microphone in the police
cruiser and another attached to Martinez captured the
conversations between Martinez, Sanz, and Prieto during
the stop. The government introduced the video and
audio recordings from the stop at the appellants’ trial.
After pulling the Civic over, Martinez approached the
vehicle and asked Sanz, the driver, for his driver’s license.
Sanz, his hands shaking, handed Martinez his Mexican
license. Sanz told Martinez that the Civic was registered
to a “Nicolas Cardenas.” Later investigation revealed that
the car indeed was registered to “Nicolas Cardenas.” Also
revealed, however, was that Sanz had been arrested ten
months earlier using the alias “Nicolas Cardenas”—the
social security number listed on the title for the Civic
matched the number Sanz had given at the booking
after his prior arrest.
Martinez had Sanz step out of the Civic. Both Prieto and
Sanz appeared extremely nervous. Martinez questioned
Nos. 07-3484 & 07-3485 3
each of the men out of earshot of the other about the
purpose of their trip. They gave conflicting accounts of
the reason for their travel. Sanz told Martinez that they
were traveling from Lafayette, Indiana, to Chicago for the
day to visit friends and to look for a job. Prieto, on the
other hand, told Martinez that they were going to Chicago
for several days to visit family. Martinez issued Sanz a
warning for unsafe lane movement and asked—in
Spanish—for permission to search the vehicle, which Sanz
granted. Martinez placed Prieto and Sanz in the rear of
his police cruiser, returned to the Civic, and began search-
ing the vehicle.
While Martinez searched the Civic, Prieto and Sanz
discussed their responses to Martinez’s queries about the
purpose of their trip. The microphone inside Martinez’s
cruiser recorded that conversation 1 :
PRIETO: I told him, “We’re going to go see the fam-
ily.”
SANZ: What?
PRIETO: That we’re going to go see the family.
SANZ: Yeah. [SIGHS]
***
1
Prieto and Sanz conversed in Spanish. The government
provided a translation of their conversation in English for the
jury at trial. The government also provided an English transla-
tion of Prieto and Sanz’s jail phone conversation with Nuco,
which we discuss later in this opinion.
4 Nos. 07-3484 & 07-3485
SANZ: Where did you tell him we were going?
PRIETO: To Chicago.
SANZ: “We’re going to Chicago to . . .”
PRIETO: “To go see family.”
SANZ: Huh?
PRIETO: “To go see some family.”
SANZ: Yeah uh, I told him we were going to go, go
see some people because we were looking for
a job.
PRIETO: Oh.
When Martinez’s search took him towards the Civic’s
bumpers, Sanz and Prieto’s conversation changed topics:
SANZ: [SIGHS] Son of a bitch. Don’t tell me he’s
headed towards the bumper. [SIGHS]
***
PRIETO: They went towards the bumper.
SANZ: Huh?
PRIETO: They went towards the bumper.
SANZ: [SIGHS]
PRIETO: They went towards the bumper?
SANZ: Huh?
PRIETO: They went towards the bumper?
SANZ: No, they can’t see it.
Nos. 07-3484 & 07-3485 5
Examining the front bumper, Martinez noticed two things
indicative of a hidden compartment: fresh paint and
“bondo,” a type of plaster. Moving to the rear bumper,
Martinez reached into the hollow part at the end of the
bumper, felt plastic packaging, and pulled out a bag
containing a white powder substance. Recognizing that
the powder was narcotics, Martinez ordered both Prieto
and Sanz at gunpoint to exit the police car and arrested
them.
Handcuffed, and once again inside the police cruiser,
the appellants lamented the turn of events:
PRIETO: We’re fucked.
SANZ: Now we’re really fucked.
PRIETO: Huh?
SANZ: Now we’re screwed.
Their conversation continued:
PRIETO: How are they going to know. Did they un-
cover the front?
SANZ: Huh?
PRIETO: Did they cover up the front?
SANZ: Yes.
PRIETO: That’s why.
***
PRIETO: We don’t know anything.
***
6 Nos. 07-3484 & 07-3485
PRIETO: Did they get it out?
SANZ: Huh?
PRIETO: Did they get it out?
SANZ: No. [PAUSE] [SIGHS] You don’t know, you
don’t know. Right?
PRIETO: Huh?
SANZ: You don’t know, you don’t know.
PRIETO: Uh-huh.
SANZ: [SIGHS] Supposedly the car’s owner is out.
PRIETO: He’s out and we don’t know. They just let
us borrow it.
The appellants continued to watch Martinez, who, along
with another officer, had removed the rear bumper and
the packages of narcotics contained therein and were
turning their attention to the front bumper. As the
officers began chiseling away at the front bumper, the
appellants’ discussion continued:
SANZ: I never liked it [UNINTELLIGIBLE].
PRIETO: How was it?
SANZ: It was fat, fat, fat and [UNINTELLIGIBLE]
in the middle.
PRIETO: Oh.
PRIETO: What the fuck are they doing?
SANZ: [CLEARS THROAT] They’re going to rip the
bumper in the middle.
Nos. 07-3484 & 07-3485 7
PRIETO: Is there more in the middle?
***
SANZ: Yes.
***
PRIETO: [UNINTELLIGIBLE] We’re fucked.
Unable to completely dismantle the front bumper on
the roadside, the officers placed the front bumper in one
of the officers’ patrol car and took it to the police ga-
rage. The officers also transferred the defendants from
Martinez’s cruiser to the back of another patrol car and
transported them to the police garage as well. At the
police garage, Martinez and the other officers finished
dismantling the front bumper and found several pack-
ages of narcotics inside.
While the officers were en route to the police garage, they
informed Lake County Police Officer Lessie Smith (who
was on assignment to a DEA task force) that they had
stopped a car with drugs and were going to the police
garage. Smith headed over to the garage. When she
arrived, she saw Martinez in possession of the packages
of narcotics, which were on the garage floor. After Marti-
nez placed the packages on a vehicle lift where they were
photographed, Smith and a police detective put the
narcotics in a DEA evidence bag, drove them to her
office, and placed them in the evidence room. DEA Agent
David Ritchie assisted in packaging, processing, and
sealing the narcotics for evidence. The drugs were
placed in unique packages bearing Ritchie’s name
and handwriting.
8 Nos. 07-3484 & 07-3485
Less than two weeks after their arrest, Prieto and Sanz
made a joint telephone call from the Porter County jail to
someone they identified as “Nuco.” That conversation
was recorded:
NUCO: Hello?
PRIETO: What’s up?
NUCO: What’s happening, man?
PRIETO: Nothing, man.
NUCO: What . . . What’s has [sic] been going on?
PRIETO: Nothing. We are here.
NUCO: Where?
PRIETO: Here at the little school.
NUCO: Oh!
PRIETO: Yeah.
***
NUCO: That guy wants . . . but exactly what it is,
man. How the things are, how they went,
and everything.
PRIETO: Uh-huh.
NUCO: So . . . so in some way that . . . and what
name you guys gave, man. Because you guys
don’t come up.
PRIETO: Well, look. Well, my name is Tomas Prieto.
NUCO: Oh, yeah? And the other one?
PRIETO: Yeah. And Fernando Sanz. Fernando Sanz.
Nos. 07-3484 & 07-3485 9
Nuco assured Prieto and Sanz not to think that “anyone is
leaving you guys behind.” He continued:
NUCO: Hey, man, and but . . . and . . . what . . . how
did it go down? More or less I mean . . .
SANZ: No, no, no. It was a traffic stop. It was a ru. . .
traffic stop. I mean, the lawyer told me
that maybe it was for our appearances, you
know what I mean?
NUCO: Uh-huh.
SANZ: Hispanic. That the . . . that the . . . [STUT-
TERS] police officer stopped us.
NUCO: Uh-huh.
SANZ: And um . . . and well . . . all of the . . . came
out . . . he took out all of the shit.
NUCO: But . . . did it go out straight or how . . . how?
SANZ: Yeah. It went . . . it went more or less. Don’t
think that it went . . . but that supposedly
this dude . . . is uh . . . he had experience in
that shit. You know what I mean?
NUCO: Mm-hmm.
SANZ: And it left, well not . . . not exactly . . . it
didn’t go out full, but that . . . that . . . that
apparatus that was in the front caught
his attention.
NUCO: Oh, yeah?
SANZ: Yeah.
***
10 Nos. 07-3484 & 07-3485
NUCO: It’s just that you guys didn’t come up, so
he wanted . . . the dude wanted to know
exactly in what county and everything. Well,
the one from here. Well the lawyer so that
he . . . could go over there directly.
SANZ: Yeah, yeah. No, no . . .
NUCO: Because he was checking but because you
guy[s] didn’t come up. He said, “Well,
I don’t know why. Or ask them exactly if
they gave another name.”
SANZ: It’s just that man something happened that
was similar to . . . to . . . [UNINTELLIGIBLE]
those. You see that we . . . [STUTTERS] . . .
how can I say it? They . . . uh . . . right away
they passed us to the . . . well, to the federal
department.
NUCO: Let me see. Hold on. What did you say . . .
did you give for your name?
SANZ: My name is Fernando Sanz.
NUCO: Hold on. [PAUSE] Fernando Sanz? Sanz?
SANZ: Yeah. Yes.
NUCO: Uh-huh. And the other one Tomas Prieto?
SANZ: Tomas Prieto. [PAUSE] Tell him that on . . .
on the twenty-sixth [26th] we are going to
have the . . . the other court.
Before the conversation ended, Nuco again assured the
appellants that “nobody is leaving you behind.”
Nos. 07-3484 & 07-3485 11
Both Prieto and Sanz were charged with one count of
possessing with the intent to distribute more than 500
grams of a substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. § 841(a)(1). At
trial, the government’s first witness was Martinez.
During the prosecutor’s questioning of Martinez about
the events leading up to the appellants’ arrests, the fol-
lowing exchange occurred in which Martinez referenced
the appellants’ post-arrest silence:
PROSECUTOR: And after they were handcuffed,
what did you do with the Defen-
dants or what did your fellow offi-
cers do with the Defendants?
MARTINEZ: We put them back in my police car.
They said nothing at all.
Neither of the appellants’ attorneys objected. Later, the
prosecutor played the video recording of the traffic stop
for the jury on fast-forward and had Martinez narrate
what was happening. Towards the end of that narration,
Martinez stated that he told “Officer Musgrove to hand-
cuff [Sanz]. And neither Mr. Sanz or Mr. Prieto said
anything.” This time, Sanz’s attorney objected and moved
for a mistrial. The court initially overruled the objection,
but later, after a break in testimony and a chance to
confer with the parties, struck the testimony from the
record and gave this curative instruction to the jury:
Officer Martinez testified on direct examination that
the Defendants did not say anything when they were
being placed under arrest. The Defendants have an
12 Nos. 07-3484 & 07-3485
absolute right to remain silent. The fact that the Defen-
dants did not say anything may not be considered by
you in any way in arriving at your verdict. That
testimony is stricken from the record, and you
are admonished to disregard it.
After the court gave that instruction, no further mention
was made of the appellants’ post-arrest silence.
Along with the transcripts of the conversations
between Prieto and Sanz in the back of Martinez’s police
cruiser, the government also introduced into evidence
the transcript of the telephone call made to Nuco from
the Porter County jail. Prior to trial, the government had
filed a Santiago proffer (see United States v. Santiago, 582
F.2d 1128 (7th Cir. 1978)) announcing its intention to
introduce Nuco’s statements under Federal Rule of Evi-
dence 801(d)(2)(E) as statements by a co-conspirator
made during the course of a conspiracy and in further-
ance of it. The court conditionally admitted Nuco’s state-
ments subject to the Santiago requirements. When, during
trial, the government attempted to lay the foundation for
the introduction of the transcript of the jail telephone call
through Agent Ritchie, the prosecutor and Ritchie had the
following exchange:
PROSECUTOR: Can you tell us in September of 2005,
in connection with another investiga-
tion that you had, what you did to
further the investigation against
these two defendants?
RITCHIE: The investigation was furthered by
obtaining the telephone calls that
Nos. 07-3484 & 07-3485 13
were made from the jail, the Porter
County jail.
***
PROSECUTOR: At the time in September of 2005,
were you working on another inves-
tigation?
RITCHIE: Yes sir, I was.
PROSECUTOR: And what did that investiga-
tion—what about that investigation
made you think that it would be
useful to get telephone calls from the
Porter County jail from these Defen-
dants?
***
RITCHIE: The investigation that I was involved
in at that time involved drug traffick-
ers in Lafayette, Indiana whose
source of supply was in Chicago. The
fact that these individuals were
stopped driving from Lafayette to
Chicago with a large amount of
m ethamphetamine made m e
believe there is a possible connection.
The attorneys for both Prieto and Sanz objected to this
line of questioning and, after a bench conference, moved
for a mistrial on the grounds that Ritchie’s testimony
violated Federal Rule of Evidence 404(b). The court
denied that motion, stating:
14 Nos. 07-3484 & 07-3485
I don’t view this as 404-B evidence. Again, the reason
the question was asked is there was some reason that
this witness went to the Porter County jail to order up
the phone calls that we’re about to hear, I am presum-
ing. So, the Government, it seems to me, wants to put
into context why he did that. Now, that’s not 404 B. It’s
not at all stating that these Defendants engaged in
some other act. In fact, as counsel says, they didn’t do
those things. So, it’s not another act under Rule 404-B.
And it is—if it were, it would be inextricably inter-
twined with this investigation.
So the objection is overruled. If you want me to give
some curative instruction to the jury that—along the
lines that that line of inquiry was only being offered to
place into context why the agent pulled the
phone calls, I’m glad to do that.
Sanz’s attorney declined the court’s offer for a curative
instruction, stating that he thought such an instruction
would “just draw[ ] more attention to it.”
Ritchie also testified that the methamphetamine exhibits
the government presented were the same exhibits he
assisted in packaging as evidence on the day Prieto and
Sanz were arrested. He testified that he transported the
drugs from the evidence room to the DEA’s laboratory in
Chicago for testing by a DEA chemist. During the testi-
mony of the DEA chemist, however, the appellants’
attorneys objected to the introduction of the methamphet-
amine exhibits, arguing that the government had failed
to show a proper chain of custody. The district court
denied the objection and ruled that, while the govern-
Nos. 07-3484 & 07-3485 15
ment’s presentation of evidence bearing on the chain of
custody was “somewhat sloppy,” a presumption of
regularity applied because the drugs had not left police
custody. It further held that any breaks in the chain of
custody went to the weight of the evidence, rather than
its admissibility.
At the conclusion of the government’s case, the district
court found that the appellants’ statements during the
jailhouse phone call were made in furtherance of the
conspiracy and thus that the government had satisfied
Santiago, making the statements admissible for all pur-
poses. The court then entertained motions from the appel-
lants’ counsel, and counsel for the appellants moved for
a judgment of acquittal based on the absence of a formal in-
court identification of the appellants as the men Martinez
arrested. The district court denied the motion and gave
the following explanation:
I was also surprised that there wasn’t an in-court
identification, frankly, of either Defendant. But antici-
pating that, in United States versus Weed[ ], 689 F.2d
752, it’s a Seventh Circuit case from 1982, the Court
said the following. Generally, an in-court identification
of the accused is an essential element in the establish-
ment of guilt beyond a reasonable doubt. However,
identification can be inferred from all of the facts and
circumstances that are in evidence.
***
Based on the evidence presented in this case, I am
satisfied that the Government has established that the
two gentlemen sitting in court here are . . . the same
16 Nos. 07-3484 & 07-3485
gentlemen that were arrested at the scene of their
arrest on I-65. That is linked up first and foremost by a
videotape at the scene of both Mr. Prieto and Mr. Sanz,
who appear the same as the two individuals sitting in
court here today.
It’s further tied up by the—as it relates to Mr. Sanz,
the Mexican license that was handed over to Com-
mander Martinez, and that photograph does meet the
description of Mr. Sanz broadly.
In addition, I do agree that there were several occa-
sions that I did notice and did see Commander Marti-
nez when he was referring either to Mr. Prieto—both to
Mr. Prieto and to Mr. Sanz, and interchangeably
referring to them as the Defendants, him referencing
and pointing to them here in open court.
Neither appellant testified or called any witness in his
defense. The jury found both Prieto and Sanz guilty. The
district court sentenced Prieto to 235 months’ imprison-
ment and Sanz to 262 months’ imprisonment. Both
Prieto and Sanz appeal their convictions.
II.
The appellants first argue that Martinez’s testimony
about their post-arrest silence warranted a mistrial.2
2
Because the district court later struck Martinez’s testimony,
Sanz’s argument that the district court abused its discretion
in admitting Martinez’s testimony is moot. However, we do
(continued...)
Nos. 07-3484 & 07-3485 17
“[B]ecause the trial court ‘is in the best position to deter-
mine the seriousness of the incident in question, particu-
larly as it relates to what has transpired in the course of
the trial,’ we review the court’s denial of a motion for
mistrial for an abuse of discretion.” United States v. Curry,
538 F.3d 718, 726-27 (7th Cir. 2008) (quoting United States
v. Danford, 435 F.3d 682, 686 (7th Cir. 2006)). “We will
reverse a district court’s denial of a mistrial only if we have
a strong conviction that the district court erred. The
ultimate inquiry is whether the defendant was deprived of
a fair trial.” Danford, 435 F.3d at 686 (internal quotation
marks and citation omitted).
“[T]he Fifth Amendment, in its direct application to
the Federal Government . . . forbids either comment by
the prosecution on the accused’s silence or instructions
by the court that such silence is evidence of guilt.” United
States v. Jumper, 497 F.3d 699, 704 (7th Cir. 2007) (quoting
Griffin v. California, 380 U.S. 609, 615 (1965)). In support
of their contention that they should be granted a mistrial,
the appellants invoke the Supreme Court’s decision in
Doyle v. Ohio, 426 U.S. 610 (1976). The question in Doyle
was whether a prosecutor can impeach a defendant on
the stand with his post-arrest silence; the Supreme
Court answered in the negative. 426 U.S. at 611. Neither
Prieto nor Sanz explains how Doyle applies here, where
neither of the appellants testified, the references to the
2
(...continued)
consider whether the jury’s hearing of this evidence justified
a mistrial.
18 Nos. 07-3484 & 07-3485
appellants’ post-arrest silence arose in the context of a
witness’s stray remarks during the narrative portions of
his testimony, and the prosecutor neither intentionally
elicited the testimony nor argued any adverse inferences
to the jury from the silence. Compare Jumper, 497 F.3d at
706-07 (finding harmless error where district court admit-
ted portions of a video-taped interrogation during which
the defendant invoked his right to remain silent), with
Lindgren v. Lane, 925 F.2d 198, 200-01 (7th Cir. 1991) (find-
ing witness’s reference to the defendant’s silence, without
evidence that the prosecutor used or was permitted to
use that testimony, did not violate the Fifth and Four-
teenth Amendments).
We need not dwell on the appellants’ failure to address
the applicability of Doyle. Even assuming Martinez’s
statements violated the appellants’ Fifth Amendment
rights, any error resulting from the jury hearing that
testimony was undoubtedly harmless. Recall that Martinez
only mentioned the defendants’ post-arrest silence twice.
The first time Martinez remarked “they said nothing at
all” in response to the prosecutor’s question about what
Martinez did with the defendants after handcuffing them.
The second time Martinez stated “neither Mr. Sanz or
Mr. Prieto said anything” towards the end of his narra-
tion of the video recording of the traffic stop. The
district court struck both of those statements from the
record and admonished the jury to disregard them. See
United States v. Robbins, 197 F.3d 829, 836 (7th Cir. 1999)
(“Errors that are the subject of curative instructions are
presumed harmless.”). The references themselves were
short and not intentionally elicited by the prosecutor. The
Nos. 07-3484 & 07-3485 19
prosecutor did not highlight the appellants’ silence by
asking Martinez any follow-up questions, and he did not
broach the subject with any other witness or at closing
argument. See Jumper, 497 F.3d at 707.
In addition, the evidence of Prieto’s and Sanz’s guilt
was overwhelming. The Civic in which the appellants
were traveling contained a massive quantity of hidden
methamphetamine. The car was registered to “Nicolas
Cardenas,” an alias that Sanz had previously used. The
appellants were nervous and gave conflicting stories
about their travels. And the appellants’ conversations
both in the back of Martinez’s patrol car and with Nuco
speak for themselves, plainly exposing their guilt. In light
of that clear evidence of the appellants’ guilt, we can
confidently say that the temporary admission of Martinez’s
statements about the appellants’ silence was harmless
beyond a reasonable doubt. See id. at 706 (“An error is
harmless if it appears ‘beyond a reasonable doubt that
the error complained of did not contribute to the verdict
obtained.’ ” (quoting Ben-Yisrayl v. Davis, 431 F.3d
1043, 1052 (7th Cir. 2005))).
Next, the appellants make two challenges to the
district court’s denial of their motion for a mistrial based
on Agent Ritchie’s statements about the possible connec-
tion between the appellants and another drug investiga-
tion. They first argue that Ritchie’s statements were
inadmissible propensity evidence and should have been
excluded under Federal Rule of Evidence 404(b). In the
alternative, Sanz contends that the statements should
have been excluded under Federal Rule of Evidence 403
20 Nos. 07-3484 & 07-3485
because the probative value of the proffered evidence was
substantially outweighed by the danger of unfair
prejudice.3 In response, the government argues that
Rule 404(b) was not implicated because Ritchie only
spoke of a “possible connection” and did not state that the
appellants had in fact engaged in other illegal drug activ-
ity. The government also asserts that the testimony was
“inextricably intertwined” with this case and necessary
to explain why Ritchie retrieved the recordings of the
appellants’ phone calls from the Porter County jail.
Ritchie’s testimony linking the appellants to another
drug investigation was not necessary to provide context
for his interception of the phone calls. The prosecutor
could have given the jury all the context it needed simply
by eliciting testimony from Ritchie that the telephone
conversations of prisoners are routinely recorded and
that federal agents routinely (or occasionally) listen to
those conversations in preparation for trial. Providing
context in that way would have avoided the possibility
of any prejudice arising from connecting the appellants to
another drug investigation. Instead, the prosecutor
chose a more problematic route.
That being said, any error that may have arisen from the
admission of this testimony was harmless. 4 Ritchie only
3
We note that Sanz did not present this Rule 403 argument to
the district court, so we review it for plain error only.
United States v. Sloan, 492 F.3d 884, 895 (7th Cir. 2007).
4
Because we conclude that any error would be harmless, we
need not rule on whether the district court abused its discre-
(continued...)
Nos. 07-3484 & 07-3485 21
spoke of a possible connection to the other investigation
and his testimony on the subject was brief. Again, the
evidence against the appellants was overwhelming. Thus,
the admission of Ritchie’s statements did not affect the
outcome of the trial, and the district court’s decision
denying the appellants’ motion for a mistrial need not
be reversed. See United States v. Ratliff-White, 493 F.3d 812,
826 (7th Cir. 2007) (“Errors do not merit reversal when
the government proves that they are harmless, that is, that
they did not affect the outcome of the trial.” (quoting
United States v. Ortiz, 474 F.3d 976, 982 (7th Cir. 2007))).
For the appellants’ next contention of error, Sanz ques-
tions the district court’s ruling that Nuco’s statements
during the jail phone conversation were admissible pursu-
ant to Federal Rule of Evidence 801(d)(2)(E). We review
a district court’s ruling on the admissibility of evidence
for an abuse of discretion. United States v. Jackson, 540
F.3d 578, 587 (7th Cir. 2008). “In order for a statement
made by a member of a conspiracy to be admissible
against other members of the conspiracy under Rule
801(d)(2)(E), the government must prove by a preponder-
ance of the evidence that (1) a conspiracy existed; (2) the
defendant and the declarant were members of the con-
spiracy; and (3) the statement was made during the course
and in furtherance of the conspiracy.” United States v.
Schalk, 515 F.3d 768, 775 (7th Cir. 2008).
Sanz contends that there was not enough evidence to
establish by a preponderance that Nuco, Prieto, and Sanz
4
(...continued)
tion in admitting Ritchie’s testimony.
22 Nos. 07-3484 & 07-3485
were involved in an existing conspiracy and that Nuco’s
statements 5 were made during the course and in further-
ance of that conspiracy. On the contrary, the record is
replete with evidence that Nuco, Prieto, and Sanz con-
spired to transport narcotics and that the jailhouse phone
conversation between those three was in furtherance
of that conspiracy. Although not charged, the evidence
supports a finding of a conspiracy between Prieto and
Sanz to transport methamphetamine for distribution. See
United States v. Moon, 512 F.3d 359, 363 (7th Cir. 2008)
(observing that a prosecutor need not charge a con-
spiracy to take advantage of Rule 801(d)(2)(E)). Further-
more, the subject matter and tenor of the jailhouse con-
versation indicate that Nuco participated in the con-
spiracy and that the purpose of the call was to further the
conspiracy—in particular, for Prieto and Sanz to report
their status to Nuco and, in turn, receive assurances of
assistance from their co-conspirators. Cf. United States v.
Potts, 840 F.2d 368, 371 (7th Cir. 1987) (finding that a
conversation reporting on the conspiracy’s progress was
in furtherance of the conspiracy); United States v. Buishas,
791 F.2d 1310, 1315 (7th Cir. 1986) (finding assurances
given by a co-conspirator that he could be trusted to
perform his role admissible as statements in furtherance
of the conspiracy). At the beginning of the conversation,
the appellants apprised Nuco of their status. That Nuco
appeared familiar with Prieto and Sanz (“What’s happen-
ing, man?” “What’s . . . been going on?”) yet did not
5
Sanz does not challenge the admission of Prieto’s state-
ments during the phone conversation against him.
Nos. 07-3484 & 07-3485 23
know what “name you guys gave” is telling, as it
suggests that the members of the conspiracy were using
aliases to protect the conspiracy. Nuco then requested the
details of their capture—information that would be of
great value to any continuing efforts to smuggle narcotics
through northern Indiana. Near the end of the conversa-
tion, Nuco gave repeated assurances to the appellants
that no one was leaving them behind. Those assurances
demonstrated that the conspiracy was ongoing, since
they reasonably implied that the other members of the
conspiracy would take care of Prieto and Sanz if they did
their part and did not divulge any information to the
authorities. From that evidence, the district court was
well within its discretion to conclude that Nuco’s state-
ments were made in furtherance of an ongoing con-
spiracy, and we will not disturb its ruling.
The appellants also challenge the chain of custody of
the government’s methamphetamine exhibits. We review
for an abuse of discretion the district court’s evidentiary
rulings on the chain of custody for physical exhibits.
United States v. Lee, 502 F.3d 691, 697 (7th Cir. 2007). “The
standard for the admission of exhibits into evidence is
that there must be a showing that the physical exhibit
being offered is in substantially the same condition as
when the crime was committed.” Id. (quoting United
States v. Moore, 425 F.3d 1061, 1071 (7th Cir. 2005)). “In
making this determination, the district court makes a
‘presumption of regularity,’ presuming that the govern-
ment officials who had custody of the exhibits dis-
charged their duties properly.” United States v. Scott, 19
F.3d 1238, 1245 (7th Cir. 1994). The chain of custody need
not be perfect; gaps in the chain go to the weight of the
24 Nos. 07-3484 & 07-3485
evidence, not its admissibility. Lee, 502 F.3d at 697. In
addition, the government does not have to exclude all
possibilities of tampering with the evidence. Instead, the
government need only show that “it took reasonable
precautions to preserve the original condition of the
evidence.” Id. (quoting United States v. Lott, 854 F.2d
244, 250 (7th Cir. 1988)).
The district court’s decision to admit the methamphet-
amine exhibits was not an abuse of discretion. True, as the
district court pointed out, the government could have
done a better job establishing exactly what happened to
the packages of drugs before they ended up on the floor
of the police garage. For instance, the government did not
offer any testimony about what happened to the drug
packages removed from the rear bumper from the time
they were removed to the time they appeared on the
floor of the police garage. Nevertheless, the district court
did not err in admitting the exhibits because such
minor gaps in the chain go to the weight of the metham-
phetamine exhibits rather than their admissibility. More-
over, because no evidence in the record indicated that
the narcotics ever left police custody, the presumption of
regularity therefore applies. Although the appellants
argue against the presumption on the grounds that
two reporters and a tow-truck driver were in the
vicinity with the officers at the time of their arrest, the
appellants have not pointed to any evidence of tampering.
As we have said before, “[m]erely raising the possibility
of tampering is not sufficient to render evidence inad-
missible; the possibility of a break in the chain of custody
of evidence goes to the weight of the evidence, not its
admissibility.” United States v. Kelly, 14 F.3d 1169, 1175
Nos. 07-3484 & 07-3485 25
(7th Cir. 1994). The district court therefore did not err
when it admitted the methamphetamine exhibits into
evidence and allowed the jury to determine what weight
that evidence deserved.
Lastly, the appellants contend that the district court
should have granted their motion for acquittal because
the government failed to elicit an in-court identification of
the appellants. In denying the appellants’ motion, the
district court cited United States v. Weed, 689 F.2d 752 (7th
Cir. 1982). We held in Weed that the lack of an in-court
identification of the defendant did not require a judg-
ment of acquittal. Although recognizing that an in-court
identification of the accused is generally required to
establish guilt beyond a reasonable doubt, we observed
that identification can also “be inferred from all the facts
and circumstances that are in evidence.” Weed, 689 F.2d
at 754. We found from the following facts and circum-
stances in Weed that the identification of the defendant
could be inferred:
In this case, three Customs agents testified re-
garding the events of the evening of December 22, 1977
and the statements made by Weed. None of these
witnesses during the bench trial noted that the defen-
dant was not the same John Weed stopped in 1977.
Both the prosecution and defense counsel referred to
the defendant at trial as the John Weed involved in
the December, 1977 events. At no time did defense
counsel object to the prosecution’s references to “the
defendant.” Appellate counsel, who was also
defense counsel, admitted at oral argument to this
26 Nos. 07-3484 & 07-3485
Court that he realized no identification had been
made during the testimony of the third witness, yet
he still did not object to references to the defendant.
Id. at 755-56.
As in Weed, the identification of Prieto and Sanz could
be inferred from all the facts and circumstances in evi-
dence. Commander Martinez repeatedly referred to Prieto
and Sanz by name during his testimony and, as the
district court noted, repeatedly pointed to them when
he referred to them in open court as the men he arrested.
In addition, the jury could compare Prieto and Sanz to the
men in the video of the traffic stop that was played twice
during trial and identify them that way. Thus, the gov-
ernment’s failure to explicitly elicit an in-court identifica-
tion of Prieto and Sanz was not fatal to the government’s
case, and the district court did not err in denying the
appellants’ motion for a judgment of acquittal on that
basis.
III.
The evidence against the appellants was overwhelming.
Thus, the district court did not err in briefly admitting
Martinez’s stray comments about the appellants’ post-
arrest silence. Nor, for the same reason, did it err in
admitting Agent Ritchie’s statement about Prieto and
Sanz’s possible connection to another drug investigation.
The district court also did not abuse its discretion by
admitting Nuco’s statements from the jail telephone
conversation because the evidence supported the court’s
Nos. 07-3484 & 07-3485 27
finding that the call was in furtherance of a conspiracy
involving Nuco and the appellants. In addition, the
district court did not abuse its discretion in admitting
the methamphetamine exhibits because any minor break
in the chain of custody went to the weight of the
exhibits rather than their admissibility. Finally, since the
jury could have inferred the identification of Prieto and
Sanz from all the facts and circumstances in evidence,
the appellants were not entitled to a mistrial due to the
lack of a formal in-court identification. We A FFIRM .
12-2-08