United States v. Saul Tejeda ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JUAN A LVIAR, R ODOLFO M ADRIGAL, JOSE M ELERO ,
A POLINAR D ELGADO-R IOS, and S AUL T EJEDA,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 194—Robert W. Gettleman, Judge.
A RGUED A PRIL 15, 2009—D ECIDED JULY 23, 2009
Before F LAUM, R IPPLE, and S YKES, Circuit Judges.
F LAUM, Circuit Judge. Saul Tejeda, Juan Alviar, Jose
Melero, Rodolfo Madrigal, and Apolinar Delgado-Rios
were among a group of individuals indicted in connec-
tion with an Aurora, Illinois drug conspiracy. While most
of the indicted individuals pleaded guilty, those five
defendants went to trial, where a jury convicted each as
charged. Tejeda is serving a 360 month prison sentence;
2 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
Alviar and Melero are serving 262 months; Madrigal is
serving 240 months; and Delgado-Rios is serving 121
months. Defendants appeal various aspects of their
consolidated trial and their sentences. We affirm on
all counts.
I. Background
In 2003, FBI agents began investigating a suspected drug
conspiracy in Aurora. The investigation focused on Tejeda
and his associates. The investigation eventually employed
cooperating witnesses; pen register information from
specific telephones; a court-authorized wiretap; ongoing
police surveillance; and several searches.
Based on evidence obtained, a grand jury returned its
second superseding indictment on November 17, 2005.
The indictment charged seventeen individuals, including
Tejeda, Alviar, Melero, Madrigal, and Delgado-Rios, with
conspiracy to possess and distribute cocaine in violation
of 21 U.S.C. § 846 (Count One). The indictment charged
Tejeda alone with five counts of distributing cocaine in
violation of 21 U.S.C. § 841(a)(1) (Counts Two through
Five, Seven); four counts of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
(Counts Six, Eight through Ten); and one count of laun-
dering narcotics proceeds in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) (Count Eleven). It charged Tejeda and
Alviar with two counts of attempting to possess cocaine
in violation of 21 U.S.C. § 846 (Counts Twelve and Thir-
teen). Tejeda, Melero, and Madrigal were charged with
two counts of using a telephone to facilitate a narcotics
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 3
conspiracy in violation of 21 U.S.C. § 843(b) (Counts
Seventeen and Eighteen). The indictment charged Alviar,
by himself, with three counts of possession of cocaine
in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen
through Sixteen). Melero was charged individually with
two counts of unlawful possession of a firearm in viola-
tion of 18 U.S.C. § 922(g)(1) (Counts Nineteen and
Twenty). Delgado-Rios was charged individually with
two telephone counts in violation of 21 U.S.C. § 843(b)
(Counts Twenty-Three and Twenty-Four).
The indictment stated that between 2000 and
March 2005, Tejeda was a wholesale distributor of
cocaine in Aurora, and he obtained and resold cocaine
in kilogram and ounce quantities. According to the in-
dictment, Tejeda’s co-defendants assisted him. Tejeda,
Alviar, Melero, and Madrigal first were members of the
Latin Homeboys street gang, and then they became
members of the Latin Kings, while Delgado-Rios was
part of Tejeda’s close family circle. Tejeda relied on his
fellow gang members and close family to serve as look-
outs, to direct him to customers, to store and transport
cocaine and money for him, and to help him steal cocaine
from others. The indictment further alleged that Tejeda’s
gang membership provided his operation with pro-
tection from rivals; specifically Alviar and Melero special-
ized in providing protection through their positions as
Latin King enforcers.
Tejeda and Melero moved pretrial to exclude gang
membership evidence as unduly prejudicial and of mini-
mal probative value. According to Tejeda, “evidence that
4 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
defendants are members of the Latin Homeboys or Latin
Kings is not especially probative of whether they jointly
ventured to distribute drugs to further the criminal
interest of the Latin Homeboys or Latin Kings,” and “the
missing link between the ‘gang’ and the ‘criminal activity’
distinguishes this case from other cases where gang
evidence was found admissible for the purpose of estab-
lishing a joint venture or the existence of a conspiracy.”
The government in its consolidated response to defen-
dants’ pretrial motions responded that: “[G]ang member-
ship in this case is part of the glue that held the charged
conspiracy together, and is therefore part-and-parcel of
the proof necessary to demonstrate that defendants had
a criminal intent and agreement to conspire.” The gov-
ernment added that it would present witnesses to testify
that “the Aurora Latin King’s greatest source of revenue
was proceeds from cocaine sales, a fact supported by
the conspiracy evidence in this case.”
On May 3, 2006, the district court denied defendants’
motions to exclude evidence of gang membership with-
out placing restrictions on the prosecution’s use of
gang-related evidence. On May 9, Delgado-Rios filed a
motion objecting on Rule 403 grounds to “[a]dmission of
gratuitous gang activities.” The court denied the
motion without prejudice to raising the same objection
at trial.
Defendants’ consolidated trial commenced on May 16,
2006. It spanned eleven days. In its opening statement,
the government described Tejeda’s cocaine trafficking
organization and its relation to gangs: “One of the key
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 5
ways defendant Saul Tejeda protected himself and his
drug organization is by joining the Latin Kings street gang
in Aurora.”
The government introduced testimony of law enforce-
ment officers, lay witnesses, and cooperating defendants.
The government had wiretapped a telephone used by
Tejeda, and it played 189 calls at trial. It also introduced
seventeen undercover recordings made by cooperating
witnesses, which documented controlled purchases of
one ounce of cocaine from Tejeda on February 4 and
February 11, 2004; a sale by Tejeda of 2.8 grams of cocaine
on October 5, 2004; two sales of cocaine by Tejeda on
October 8, 2004; and a one ounce purchase on Novem-
ber 18, 2004. The recordings documented the possession
of two ounces of cocaine by Tejeda and Alviar on
February 11, and their attempt to purchase ten kilo-
grams of cocaine on February 15, 2005. They captured
Alviar’s statement that he was a “hood enforcer” for the
Latin Kings and that Melero was the “enforcer.”
The government introduced evidence that a search of
Melero’s house upon his arrest revealed a 9 mm pistol and
an SKS assault rifle. Searching Alviar’s house, agents
discovered drug paraphernalia and over 300 grams of
cocaine. There was evidence that, after his arrest,
Delgado-Rios stated that he was a money courier for a
drug dealer, that he purchased cocaine for personal use,
and that he had provided leads for drug robberies.
Cooperating defendant Andy Lopez testified that he
was a gang member with Alviar, Melero, Madrigal, and
Tejeda, as well as Tejeda’s roommate. He testified he
6 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
had known Tejeda was selling cocaine since at least 2000.
He witnessed Tejeda storing quarter-kilograms of cocaine
in their apartment, along with guns, a scale, and baggies.
Later, Tejeda would store cocaine with Lopez for him
to sell. Tejeda additionally rented an apartment for
Lopez in which to store cocaine and cash. In June 2004,
authorities raided and seized about half a kilogram of
cocaine.
Lopez testified that Tejeda had admitted robbing
another drug dealer to him. He also testified about a drug
robbery he committed with Melero, and about other
robberies Melero had attempted. He testified that
Madrigal purchased cocaine from Tejeda. Lopez wit-
nessed Tejeda discussing the purchase of cocaine from
Delgado-Rios and from Melero. He witnessed Alviar
sell two ounces of cocaine to Tejeda. Lopez made a
series of recordings with some of the defendants. On
cross-examination, Lopez stated that he did not know
what the Latin Kings had to do with the drug conspiracy
on trial.
Another cooperating defendant, Carlos Escalante,
testified that he had known Tejeda since 1998 and Alviar
since 2004. Escalante had long been a Latin King, and
he testified about the gang and the position of enforcer.
According to Escalante, the primary source of income
for the Aurora Latin Kings was cocaine distribution. He
testified about the takeover of the Latin Homeboys by
the Latin Kings. Escalante began selling cocaine upon
release from prison in 2004, buying from Tejeda once or
twice a week until October 2004. Escalante and Tejeda were
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 7
intercepted negotiating cocaine transactions; Escalante
interpreted the recordings for the jury. Escalante also
testified to seeing a handgun, cocaine, and a scale at
Tejeda’s house.
Cruz Samaniego next testified as a cooperating defen-
dant. Tejeda’s cousin, Samaniego had been a member of
the Latin Homeboys since 1999. He described how
Tejeda was a Latin Homeboy in 1996 and 1997 and how
Alviar, Melero, and Madrigal were Latin Kings. Samaniego
bought cocaine from Tejeda, Alviar, and Melero.
Samaniego and Tejeda were intercepted on the wiretap
negotiating cocaine transactions.
Heriverto Rios cooperated and testified that he was a
former Latin Homeboy and had known defendants for
years. He testified about drug robberies that he had been
told about involving Tejeda, Melero, Madrigal, and
Delgado-Rios. Rios testified that Tejeda supplied
Delgado-Rios with cocaine, and that Alviar, Melero, and
Madrigal also sold cocaine.
Under immunity, Carlos Olivares testified he was a
Latin King from 1989 through 2004. He stated that a
Latin Kings enforcer carries out punishments within the
gang and ensures gang members have firearms. He
testified that in December 2003 he witnessed Alviar,
armed, performing security for a Latin Kings meeting. In
March 2004, Olivares recorded a conversation in which
Alviar stated that he was the “hood enforcer” and Melero
was the enforcer. Olivares recorded Melero acting in
that capacity.
Defense counsel objected to gang evidence throughout
the trial, which included some 600 references to defen-
8 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
dants’ Latin Kings associations, and some 100 references
to defendants’ Latin Homeboys affiliations. Delgado-
Rios’ counsel made the following statement, which is
indicative of defense attorneys’ objections:
I made a motion in limine regarding the gang violence
and activities. And I’m aware that there’s several
paragraphs in Count One that say the structure of the
Latin Kings is being utilized in some fashion. And
I argued to your Honor that the structure of the gang
is not being used. There’s no nation days. There’s no—
money is not going to any treasurer. . . . We don’t
have spots where people are manning it 24 hours a
day, none of that stuff. Now, today—and we had a
little bit of an opening statement and then with this
agent. We started going back to like the Latin Kings
is some national enterprise that everyone in the
world should be afraid of. And he starts out big, you
know, at the academy we learned about the Latin
Kings, their organization and structure. Well, you
know, that is so prejudicial to this group that’s in a
small—we’re going to get a Mapquest, and it’s going
to be about a half a mile square. That’s what this case
is about, that half mile square. And I feel rivalries
between gangs, shootings between gangs, it’s all
right to say you’re carrying a gun to protect money or
drugs, but for protection from other gangs as if there’s
some kind of struggle in Aurora over drug turf is not
in this case. It’s extremely prejudicial, Judge. . . .
After some additional back-and-forth, Delgado-Rios’s
counsel moved for a mistrial. The district court denied
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 9
defense counsel’s motion, but it did address the govern-
ment: “I don’t want these people being, you know,
dragged into some sort of national gang conspiracy,
because that’s not what it is. That’s not what you’ve
represented it to be. That’s not what you’ve alleged in
the indictment, and it’s not what will be admitted in this
case.”
During Lopez’s testimony, counsel objected to testimony
about “gang stuff and the gang structure,” and to testi-
mony about the role of enforcer. The district court over-
ruled the objection, saying “I know there’s a line that
can be crossed, and I’ll keep my ears open for that. But
I haven’t seen it yet.” The court allowed testimony about
the role of enforcer, saying, “It was a pretty general
question about rank and what that means, what those
terms mean, but without any graphic detail, gratuitous
or otherwise . . . .”
In response to an additional objection about testimony
regarding gangs and “gang violence,” the government
explained that the evidence would show “the nature of
the relationship between defendants Saul Tejeda and
Juan Alviar . . . . Alviar had a particular role in this drug
conspiracy, and the role was to protect Saul Tejeda . . . .”
The district court overruled the objection and stated,
“I think the government should be allowed the oppor-
tunity to try to put this mosaic together if they can. And
if they can’t, we’ll deal with that in due course.”
Later, in responding to objections about gang evidence,
the district court stated that it had already ruled that the
evidence would be admitted, but admonished the gov-
10 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
ernment to lay a better foundation for the testimony. The
court continued, “As far as the gang being part of this
case, it is part of this case. It’s not in the traditional
sense . . . that . . . I have dealt with in some other cases.
It is part of this case.”
Post-trial, the district court again addressed the gang
evidence, stating:
I ruled earlier, and I see no reason to change my
ruling now, that this evidence was proper as admitted
in this case to show the interrelationship among
these defendants, especially since this was a con-
spiracy case, and the theory of the case was that the
gang and the changing from the Home Boys to the
Latin Kings by some of the defendants, not all of the
defendants[,] was integral to understanding the
interrelationship between these defendants. The
evidence was limited, and it wasn’t introduced for
the purpose and didn’t in my view unduly prejudice
these defendants. The evidence clearly established
who was and who wasn’t a gang member and what
gang they were affiliated with and the extent of the
gang activity that related to the charged conspiracy.
I don’t minimize or belittle the defendants’ concern
about this. I know this is evidence that could be
highly prejudicial if it were not otherwise relevant.
I just think it was in this case . . . . [I]t was part of the
interrelationship between these people.
The jury returned its verdict on June 19, 2006. Alviar,
Madrigal, Melero, Delgado-Rios, and Tejeda were con-
victed as charged in the second superseding indictment.
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 11
Between August 9 and August 18, 2006, Alviar, Madrigal,
Melero, Delgado-Rios, and Tejeda moved for judgment
of acquittal and/or a new trial. The district court denied
those motions. The court sentenced appellants on May 24,
2007.
II. Analysis
Alviar, Madrigal, Melero, Delgado-Rios, and Tejeda filed
notices of appeal. We consolidated defendants’ appeals
and instructed them to file a joint brief covering common
issues, and to file individual supplemental briefs if neces-
sary. In their joint brief, defendants argue that the
district court abused its discretion in allowing evidence
of gang membership. We address that common issue
first. Defendants then raise various other challenges to
their trial and sentences in their individual supplemental
briefs, which we address in turn, providing additional
background information when it is needed.
A. Whether the district court abused its discretion in
allowing evidence of gang membership.
Defendants claim that the district court abused its
discretion when it: (1) allowed the introduction of unduly
prejudicial gang evidence; (2) placed no limits on the
introduction of gang evidence; and (3) failed to analyze
such evidence under Fed. R. Evid. 404(b). They claim
that the court at the pretrial stage overlooked Seventh
Circuit case law that such evidence is prejudicial. They
continue that during the trial, the court never “made the
12 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
difficult calls that are required by Fed. R. Evid. 404(b).”
Defendants cite several Seventh Circuit cases to support
their argument. E.g., United States v. Hardin, 209 F.3d 652,
663 (7th Cir. 2000) (“Charging a drug conspiracy that
involves gang members . . . does not give the government
carte blanche to splash gang references throughout the
trial.”); United States v. Irvin, 87 F.3d 860, 865 (7th Cir.
1996); United States v. Rodriguez, 925 F.2d 1049, 1053
(7th Cir. 1991) (“[E]vidence of membership in a street
gang is likely to be ‘damaging to [a defendant] in the
eyes of the jury.’ ”) (quoting United States v. Lewis, 910
F.2d 1367, 1372 (7th Cir. 1990)).
The government acknowledges that evidence of gang
affiliation may be highly prejudicial, but it argues that
such evidence is admissible when relevant to demon-
strate the existence of a joint venture or conspiracy and
a relationship among its members. The government cites
United States v. Suggs, 374 F.3d 508, 516 (7th Cir. 2004), to
argue that gang evidence is “particularly relevant” in
conspiracy cases, where the relationships of the defen-
dants is a central issue. It claims that the district court did
place limits on the gang evidence, and the evidence
admitted was not unduly prejudicial. The government
also contends that defendants forfeited their Rule 404(b)
argument and in any event the gang evidence was not
404(b) evidence.
Our review of the district court’s gang evidence
decisions is for abuse of discretion. Rodriguez, 925 F.2d at
1053. “We give special deference to a trial judge’s eviden-
tiary rulings ‘because of the trial judge’s first-hand expo-
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 13
sure to the witnesses and the evidence as a whole, and
because of the judge’s familiarity with the case and ability
to gauge the impact of the evidence in the context of the
entire proceeding.’” United States v. Hernandez, 330
F.3d 964, 969 (7th Cir. 2003) (quoting United States v.
Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998)).
We have recognized there is “substantial risk of unfair
prejudice attached to gang affiliation evidence,” but
“under appropriate circumstances, gang evidence has
probative value warranting its admission over claims of
prejudice.” Irvin, 87 F.3d at 864. In the Seventh Circuit,
“[e]vidence of gang affiliation is admissible in cases in
which it is relevant to demonstrate the existence of a
joint venture or conspiracy and a relationship among its
members” and each defendant’s knowledge of and partici-
pation in the drug conspiracy. United States v. Westbrook,
125 F.3d 996, 1007 (7th Cir. 1997). “Gang affiliation is
particularly relevant, and has been held admissible, in
cases where the interrelationship between people is a
central issue” such as in a conspiracy case. United States
v. Thomas, 86 F.3d 647, 652 (7th Cir. 1996) (affirming
ruling allowing gang evidence because that evidence
“helped demonstrate the existence of the conspiracy
and the connections between members of the conspiracy”);
see also United States v. Sargent, 98 F.3d 325, 328 (7th Cir.
1996) (“[G]ang membership can be key to establishing
criminal intent or agreement to conspire.”).
In this case, the evidence that the government sub-
mitted was relevant to proving the conspiracy allegations
set forth in the indictment. The evidence established
14 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
that Tejeda was a drug dealer who employed a network of
associates to obtain and to distribute the drugs, and that
the majority of individuals that made up the network
were in the Latin Homeboys and/or the Latin Kings
with Tejeda. For example, the evidence established that
Alviar and Melero had been Latin Homeboys with Tejeda,
and later became Latin Kings with Madrigal and him. The
fact that these four individuals were bound together by
their gang membership made it more likely that they
participated in a conspiracy. Testimony also established
a link between gang membership and protection. While
Tejeda once had expressed concerns about being robbed,
after he became a Latin King, he did not express the
same concerns. The evidence supported the argument
that he no longer was concerned because Alviar and
Melero, as Latin King enforcers, provided protection.
Madrigal cites United States v. Avila, 465 F.3d 796, 798 (7th
Cir. 2006), to argue that the government and the district
court confused evidence of membership in the gang
with evidence of membership in the conspiracy. In that
case, there was “negligible evidence” that the defendant
belonged to a gang, but even if the defendant was a gang
member, there was “no evidence” that he was a part of
the conspiracy; the trial court erred in assessing his rele-
vant conduct based on gang membership alone. Here, by
contrast, the government elicited testimony to show that
Tejeda’s drug trafficking operation used gang members
in certain defined roles. The government did not
simply equate any membership in the gang with being a
co-conspirator. The government’s use of gang evidence
was not improper in the instant case.
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 15
Defendants argue that, even if it was proper for the
district court to admit some gang evidence, the court
should have placed additional limits on the gang
evidence that the government sought to introduce. They
claim that the court permitted the government to do
much more than simply “complete the story” of how the
defendants came to know each other. For example, defen-
dants argue that the court should have limited the evi-
dence so that the government did not mention specific
gang names or launch into a litany of violent acts both
by and against the defendants.
As a preliminary matter, we note that the district court
in fact did place certain limits on the gang evidence. In
some instances, the court kept out gang evidence that
was either irrelevant or unduly prejudicial. For example,
when the government sought to admit a table bearing
gang graffiti recovered from Melero’s basement, the
court barred its admission. When the government elicited
testimony from an FBI case agent that of the hundreds of
witnesses he had interviewed “virtually all” had tied the
gang’s activities to drug dealing, the court sustained an
objection and instructed the jury to disregard the an-
swer. When the government elicited testimony from
Escalante about Latin Kings’ drug dealing, the court
allowed Escalante to testify to the gang’s activities when
he was involved, while sustaining objections to testimony
about gang activities while he was incarcerated. The
court admonished the government to elicit a specific
foundation for testimony about gang activities: “They’re
holding you to your proof. You know, they haven’t held
you to . . . the letter of the rules of evidence for every-
16 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
thing in this case, but this time they are. This is a very
sensitive subject, and I think you have to lay the founda-
tion properly when you ask him or anybody else in this
case for this type of testimony.”
The evidence that the district court admitted was proba-
tive of defendants’ roles in the Tejeda drug organization.
Even the evidence of Latin King handshakes, symbols,
colors, and tattoos tended to establish gang membership
or affiliation, and it was proper for the government to
prove gang membership as part of the conspiracy. Thus,
we do not conclude that the court abused its discretion
when it did not further limit the government’s evidence.
Finally, defendants’ argument that the district court
failed to analyze the gang evidence under Rule 404(b) was
forfeited, as it was never raised below, and we review it
for plain error. United States v. LeShore, 543 F.3d 935, 939
(7th Cir. 2008). The contested evidence proved specific
portions of the indictment. It did not concern “other
crimes, wrongs or acts,” but it concerned the charged
crime. When evidence is embraced by the conspiracy in
the indictment, the court need not resort to Rule 404(b)
analysis. “Rule 404(b) is inapplicable where the ‘bad acts’
alleged are really direct evidence of an essential part of
the crime charged.” United States v. Lane, 323 F.3d 568, 579
(7th Cir. 2003). The gang evidence was not actually Rule
404(b) evidence, and the court did not commit plain
error when it did not analyze the evidence under
Rule 404(b).
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 17
B. Whether the district court properly refused to
sever defendant Madrigal, who was indicted as a
co-conspirator.
On August 18, 2005, Madrigal filed a motion for sever-
ance and a separate trial under Fed. R. Crim. P. 14, arguing
that he would be prejudiced by undergoing a trial where
there was “a gross disparity in both the amount and type
of evidence against Madrigal vis-a-vis his co-defendants.”
A joint trial, Madrigal claimed, would be “fundamentally
unfair.” The government filed its response on the sever-
ance issue on February 10, 2006. On May 10, in its
Pretrial Hearing Order, the district court denied
Madrigal’s motion for severance.
Madrigal appeals denial of his severance motion. He
argues that the district court should have severed him
because of: (1) “spillover” of the government’s evidence;
(2) prejudicial effect of inflammatory evidence of racial
slurs by defendants; (3) prejudicial gang membership
and violence evidence; and (4) “other crimes” and
weapons evidence only relevant to other defendants.
Madrigal never renewed his motion at the close of the
evidence. According to our case law, unless a motion to
sever is renewed at the close of the evidence, it generally
is waived. See United States v. Rollins, 301 F.3d 511, 518
(7th Cir. 2002). A waiver of this nature would preclude
appellate review of any kind. See United States v. Olano, 507
U.S. 725, 733 (1993). However, the failure to renew a
motion to sever may be excused if the defendants can
“demonstrate that refiling [the motion to sever] would
have been . . . futile.” United States v. Caudill, 915 F.2d 294,
18 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
298 (7th Cir. 1990). Madrigal does not explicitly argue that
renewing the motion to sever would have been futile, but
he does state: “[C]ontrary to the government’s claim
that the issue was not preserved by a renewed motion at
the close of the evidence, the district court had been
apprised of the issue for so long, both before and during
the trial, the district court had to be fully aware that
severance was still a viable, pending issue for Madrigal
which could still be remedied by spinning his separate
trial off to another occasion.” In this case, the defense
constantly challenged the admission of gang-related
evidence—before, during, and after trial—on the grounds
that it was prejudicial. One more motion may have
been futile, but we need not decide whether Madrigal’s
motion to sever was waived, as our answer to that
question is not outcome determinative.
Even if Madrigal’s entire motion to sever was not
waived, his second, third, and fourth arguments on appeal
are forfeited. Madrigal never argued below that the district
court should have severed him because of (2) the prejudi-
cial effect of other defendants’ use of racial slurs on the
wiretap recordings; (3) the prejudicial nature of the gang
evidence introduced at trial; and (4) the prejudicial effect
of certain evidence against Alviar, Melero, and Renteria.
We review arguments (2), (3), and (4) for plain error.
We review argument (1), that the district court should
have severed him because of the spillover effect from
evidence against co-defendants, for abuse of discretion.
See United States v. McClurge, 311 F.3d 866, 871-72 (7th
Cir. 2002).
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 19
In all but the “most unusual circumstances,” the risk of
prejudice arising from a joint trial is “outweighed by the
economies of a single trial in which all facets of the
crime can be explored once and for all.” United States v.
Velasquez, 772 F.2d 1348, 1352 (7th Cir. 1985). There is a
strong preference that co-conspirators be jointly tried,
particularly when they were indicted together. See United
States v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003). Joint
trials “promote efficiency and ‘serve the interests of
justice by avoiding the scandal and inequity of incon-
sistent verdicts.’” Zafiro v. United States, 506 U.S. 534, 537
(1992) (quoting Richardson v. Marsh, 481 U.S. 200, 209-10,
(1987)). A district court has discretion to sever counts or
defendants for trial. Fed. R. Crim. P. 14(a). We will over-
turn a denial of a motion to sever only if actual prejudice
resulted. Souffront, 338 F.3d at 831.
Madrigal’s first argument relates to the spillover effect
of the evidence against his co-defendants. He claims that
the district court overlooked the “massive amount” of
evidence, witness testimony, and intercepted telephone
call trial evidence targeted at proving the guilt of his
co-defendants to his prejudice. But the fact that the gov-
ernment has greater evidence against one co-defendant
does not automatically give the other defendant grounds
for severance. United States v. Studley, 892 F.2d 518, 524
(7th Cir. 1989). Given that Madrigal was charged in a
conspiracy with his co-defendants, most evidence
offered at trial would have been admissible in a trial
against him alone. The jury was instructed to consider
each defendant separately. It did so and convicted Madri-
gal of a lesser drug quantity than his co-defendants. There
20 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
was no actual prejudice to Madrigal on account of
“spillover” evidence because the jury distinguished
between him and his co-defendants. United States v.
Thompson, 286 F.3d 950, 968 (7th Cir. 2002).
One of Madrigal’s forfeited arguments is that he
should have been severed because the tape recordings
showed that defendants used variations of the “N” word
when speaking. Madrigal argues that the remarks were
“racially offensive,” and that his co-defendants used the
terms more than he did. But, as the district court stated, the
use of the terms “occurred during the conversations, and
it was the manner in which they spoke to each other
during the pertinent conversations.” The court found
that the terms were not meant to be racially offensive.
The court also concluded it would not have been feasible
to redact offensive words from hundreds of recordings. It
was not plain error for the court not to sever Madrigal
based on defendants’ use of those words in recorded
conversations. He did not suffer actual prejudice, as
there was ample evidence against Madrigal and the
jury was properly instructed to distinguish between
co-defendants. Similarly, Madrigal’s additional arguments
do not demonstrate that the district court plainly erred
when it denied Madrigal’s motion to sever.
C. Whether the district court properly accepted the
government’s Santiago proffer.
Delgado-Rios raises a claim related to the government’s
Santiago proffer. Under Fed. R. Evid. 801(d)(2)(E), a
“statement is not hearsay if . . . [t]he statement is offered
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 21
against a party and is . . . a statement by a coconspirator of
a party during the course and in furtherance of the con-
spiracy.” In United States v. Santiago, 582 F.2d 1128, 1130-31
(7th Cir. 1978), we decided that when a statement of a
co-conspirator which otherwise would be regarded as
hearsay is proffered by the government, Fed. R. Evid.
104(a) requires that the district court make a preliminary
determination regarding the admissibility of the declara-
tion. We made clear that as a condition for admission of
such statements, the government must convince the
court, by a preponderance of the evidence, that (1) a
conspiracy existed, (2) the defendant and the declarant
were members of the conspiracy, and (3) the statement(s)
sought to be admitted were made during and in further-
ance of the conspiracy. Id. at 1133-34; see also United States
v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). The government
may submit evidence of these elements in a pre-trial
proffer, and the district court may admit the statement(s)
subject to its later determination during trial that the
government has established by a preponderance of the
evidence the three foundational elements. Santiago, 582
F.2d at 1131. These evidentiary submissions are known
as “Santiago proffers.”
Delgado-Rios argues that the district court erred by
accepting a “woefully inadequate” Santiago proffer. He
claims the proffer was “in the most general terms” and
“perfunctory.” Findings under Fed. R. Evid. 801(d)(2)(E)
based on a Santiago proffer are reviewed for clear error.
United States v. Rodriguez, 975 F.2d 404, 411 (7th Cir. 1992).
The government’s written proffer contained a preview of
the evidence as to all defendants, including Delgado-Rios.
22 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
The proffer summarized cooperator Lopez’s anticipated
testimony, stating Lopez “knew co-defendant Apolinar
Delgado-Rios to buy cocaine from Tejeda and resell it.
Lopez also knew Tejeda to front cocaine to Delgado-Rios.
Lopez also knew Delgado-Rios to pass along information
to Tejeda about who was storing cocaine and where it
was being stored so that Tejeda and others could commit
drug robberies, in exchange for a portion of the robbery
proceeds.” The proffer summarized Rios’s testimony that
“Tejeda distributed a minimum of two ounces of cocaine
to co-defendant Apolinar Delgado-Rios . . . at least three
times a month. Rios also saw Delgado-Rios resell the
cocaine he bought from Tejeda to other persons.” The
proffer included summaries of calls that recorded
Delgado-Rios and Tejeda carrying out their drug busi-
ness. Based on the information in the proffer, the district
court did not commit clear error in concluding that the
government had met by a preponderance of the evidence
the preconditions for admission of co-conspirator state-
ments.
D. Whether the district court committed plain error in
allowing Agent Camacho to testify about the
prior consistent statement of a witness who was
alleged to have fabricated testimony about
Delgado-Rios.
Delgado-Rios next raises his first evidentiary error claim.
Cooperating witness Rios had testified that Delgado-Rios
had complained about being unsatisfied with his take
from a drug robbery that Delgado-Rios had tipped Tejeda
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 23
and others about. Rather than cross-examining Rios on
that point, Delgado-Rios attempted to impeach Rios by
calling Agent Larissa Camacho, one of the case agents, to
testify about an interview that she conducted with Rios.
Camacho’s report reflected that Rios had said that his
brother, Miguel Rios, expressed dissatisfaction with his
take from the robbery, and not that Rios mentioned
Delgado-Rios was unsatisfied.
On cross-examination of Camacho, the prosecution
elicited the fact that Rios had mentioned Delgado-Rios
to Camacho in addition to Miguel Rios, although
Camacho’s report did not reflect that fact. Delgado-Rios
objected that this fact was “already testified to by the
witness, Rios.”
Delgado-Rios now argues on appeal that Camacho’s
testimony about the interview of Rios was improper
hearsay, that it erroneously allowed her to “impeach
her own report,” and that it introduced inadmissible
opinion evidence about the veracity of Rios. These objec-
tions were not raised below, so we review for plain
error. Rollins, 544 F.3d at 834.
Prior consistent statements that are offered to rebut a
charge of recent fabrication or improper influence or
motive are not hearsay. Fed. R. Evid. 801(d)(1)(B); Tome v.
United States, 513 U.S. 150, 157-58 (1995). Such state-
ments are admissible if they satisfy a four-part test: (1)
the declarant testifies at trial and is subject to cross-
examination; (2) his prior statement is indeed consistent
with his trial testimony; (3) the statement is offered to
rebut an explicit or implicit accusation of recent fabrica-
24 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
tion; and (4) the statement was made before the declarant
had a motive to fabricate. United States v. Ruiz, 249
F.3d 643, 647 (7th Cir. 2001).
Rios’s prior statement to Camacho satisfies the test. His
statement was consistent with his trial testimony and
was used to rebut Delgado-Rios’s implied charge that
Rios had fabricated his testimony. There is no indication
that Delgado-Rios was prevented from recalling Rios
for cross-examination about the assertions attributed to
Rios by Camacho, and because those assertions meet the
other requirements for admission under Rule 801(d)(1)(B),
the district court did not commit plain error in allowing
Camacho’s statement.
E. Whether the district court erred in allowing
Delgado-Rios’s mother-in-law to testify that he
possessed cocaine.
Delgado-Rios next argues that the district court erred
when it allowed prejudicial testimony from his
mother-in-law, Metsi Thomas. Thomas testified to two
incidents. Following Delgado-Rios’s arrest, she found
cocaine “in the battery compartment of an object.” And
Delgado-Rios once handed her a cellphone concealing
cocaine. Both incidents occurred during the charged
conspiracy. The court did exclude testimony that the
“object” in the first incident was a child’s toy, but the
court permitted Thomas to testify that Delgado-Rios did
not have a regular job and that he tricked agents who failed
to locate cocaine hidden in the battery compartments of the
cellphone and the object. Delgado-Rios objected to testi-
mony related to the first incident, but not to the second, so
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 25
we review admission of testimony on the first incident for
abuse of discretion, and admission of testimony on the
second for plain error.
Thomas’s testimony, which focused only on incidents
that occurred during the conspiracy, was relevant to prove
Delgado-Rios’s participation in the conspiracy. The
testimony helped prove that Delgado-Rios had access to
cocaine. There was separate evidence that Delgado-Rios
was in contact with Tejeda to supply him with cocaine.
Having addressed the possible prejudice from the fact that
drugs were concealed in a toy on one occasion, the district
court did not abuse its discretion or commit plain error by
allowing testimony directly relevant to the conspiracy.
F. Whether the prosecutor improperly vouched for
witnesses or improperly referenced facts not pre-
sented to the jury.
Delgado-Rios next argues that the government improp-
erly vouched for its witnesses and improperly referenced
facts not presented to the jury.
First, he argues that it was improper for the prosecutor
to elicit testimony from cooperating witnesses about their
“need to give truthful testimony in order to maintain the
benefits of the witness’ plea bargain.” We have concluded
that the “prosecution is entitled to get into evidence the
fact that [plea] deals are conditioned upon truthful testi-
mony.” United States v. Thornton, 197 F.3d 241, 251-52 (7th
Cir. 1999). Two types of “vouching” are forbidden: a
prosecutor may not express her personal belief in the
truthfulness of a witness, and a prosecutor may not
26 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
imply that facts not before the jury lend a witness credi-
bility. United States v. Renteria, 106 F.3d 765, 767 (7th Cir.
1997). Neither type was committed here. We did caution
in Thornton that “for more than a decade we have been
warning prosecutors to ‘avoid unnecessarily repetitive
references to truthfulness if it wishes to introduce the
agreements into evidence. . . .’ [P]rosecutors should
consider refraining from introducing the documents
into evidence and rely instead on testimony sum-
marizing the agreement.” Thornton, 197 F.3d at 253 (quot-
ing United States v. Lewis, 110 F.3d 417, 421 (7th Cir. 1997)).
In this case, the government did not even introduce
the plea agreements themselves. It merely elicited testi-
mony, which does not constitute error.
Delgado-Rios argues that the government improperly
vouched for its cooperating witnesses when it referenced
the plea deal conditions in its closing argument to the
jury. The prosecutor stated:
More important, these witnesses told you that if they
lied, they jeopardized the deal that they had with
the government. And where they did lie, where they
have told inconsistent statements, they have ad-
mitted it to you. So you have all of these tools avail-
able to you to evaluate their testimony, the fact
that they’re corroborated, the fact that they have no
motivation to lie, and the fact that they have been
honest as they came into this courtroom. They did
their best, and they tried to tell the truth.
The comments made here focus on the incentives pro-
vided by defendant’s plea agreement for him to tell the
truth. They resemble a similar argument about a plea
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 27
agreement that we accepted in Renteria. There, we con-
cluded that “the prosecutor was free to invite the jury to
draw a particular inference from [the plea agreement].
Defense counsel was free to urge a competing inference,
as he did on numerous occasions. By arguing as they
did, both sides respected the jury’s ability to evaluate
credibility based on the facts in evidence.” Renteria, 106
F.3d at 766-67 (internal citations omitted). The prosecutor
here did not express a “personal belief,” and we con-
clude that the prosecutor’s statement was not improper
vouching.
Delgado-Rios also argues that the prosecutor implied
that facts not before the jury lent a witness credibility.
First, he cites the prosecution’s argument that Delgado-
Rios was guilty of the conspiracy based on wiretapped
calls: “You also know that he was in the conspiracy first
from the phone calls, 20 phone calls from the wiretap, 916,
930, 932, 938, and so on. . . . These are only some of the
calls among the calls that were recorded in which Saul
Tejeda and Apolinar Delgado-Rios discuss cocaine traf-
ficking.” The prosecution later clarified that it was refer-
ring the jury to consider only “the phone calls that
were played in court.” The government argues that its
references to additional phone calls did not include an
improper reference to evidence outside the record; it
was an inartful way of saying that calls 916, 930, 932,
and 938 were “only some of the calls among the calls that
were recorded.” We “must not lightly assume that ‘a
prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through
a lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.’ ” United States
28 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
v. Rose, 12 F.3d 1414, 1424 (7th Cir. 1994) (quoting Boyde
v. California, 494 U.S. 370, 385 (1990)). We cannot con-
clude that this statement about phone calls constituted
improper vouching.
Finally, Delgado-Rios argues that another remark made
by the government in closing was improper vouching:
“You heard then from only four customers of this con-
spiracy. As with the phone calls, we didn’t present you
with 100 percent of the evidence, because we would still
be listening to testimony from cooperating witnesses.”
The government concedes that this statement was im-
proper because it refers to evidence not presented to the
jury as supporting conviction. With this concession, we
examine the record as a whole to decide whether
Delgado-Rios was prejudiced by the prosecutor’s inap-
propriate remark so that his trial was fundamentally
unfair. Our inquiry into the prejudice is informed by
several factors, including: “(1) the nature and serious-
ness of the prosecutorial misconduct, (2) whether the
prosecutor’s statements were invited by impermissible
conduct by defense counsel, (3) whether the trial court
instructed the jury to disregard the statements, (4) whether
the defense was able to counter the improper arguments
through rebuttal, and (5) the weight of the evidence
against the defendant.” United States v. Pirovolos, 844
F.2d 415, 426 (7th Cir. 1988) (reciting the factors outlined
in Darden v. Wainwright, 477 U.S. 168, 181-83 (1986)).
The improper remark made by the government was
serious and the district court did not issue instructions to
the jury to disregard the statement. However, defense
counsel had an opportunity to refute the prosecution’s
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 29
comment in its own closing argument and the prosecu-
tion did not reference that statement again in its rebut-
tal. More importantly, the overwhelming evidence
of Delgado-Rios’s guilt “eliminates any lingering doubt
that the prosecutor’s remarks unfairly prejudiced the
jury’s deliberations or exploited the Government’s
prestige in the eyes of the jury.” United States v. White,
222 F.3d 363, 371 (7th Cir. 2000) (quoting United States
v. Young, 470 U.S. 1, 19 (1985)). We conclude that the
government’s improper remark did not render Delgado-
Rios’s trial fundamentally unfair.
G. Whether the district court properly allowed testi-
mony that Tejeda was a felon.
Tejeda argues that the district court erred in allowing
evidence that he was a convicted felon. His attorney
objected, and we review for abuse of discretion.
Sergeant Johnson testified that on October 12, 2004,
he participated in a search of a house Tejeda shared
with his girlfriend, Adrianne Potochney. Tejeda was not
home. Authorities recovered a box of ammunition. On
cross-examination, defense counsel asked:
Q: It’s not illegal to keep ammunition in the house, is
it?
A: It is in certain circumstances, yes.
Q: Is there a law in Aurora that it’s illegal to keep
ammunition in a house?
A: There is a state law that forbids possession of
firearms and ammunition by felons.
30 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
Q: Is Adrianne Potochney, is she a felon?
A: Not that I’m aware of.
On redirect, the government asked:
Q: You were asked if Adrianne Potochney was a
convicted felon?
A: Yes, I was.
Q: Is there anyone else who lived in the residence at
1000 Superior Street who was a convicted felon?
DEFENSE COUNSEL MR. NEELY: Objection, Your
Honor.
A.U.S.A.: Judge, I do believe that Mr. Neely opened
the door.
Mr. NEELY: I don’t think that I did.
THE COURT: Overruled.
A: I believe Saul Tejeda was a felon.
The government argues on appeal that defense counsel
did open the door, justifying the district court’s decision
to admit the testimony at issue. The defense argues
the decision was improper.
In United States v. Draiman, we wrote that “opening the
door” is a risk that a defense counsel assumes “when a
calculated effort is made to tiptoe over thin ice to gain
some evidentiary advantage. It also can be a delicate
situation for the trial court’s exercise of discretion so as
not to permit undue prejudice to the defendant merely
to correct some possible jury impression that may be
of no lasting consequence.” We continued: “The govern-
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 31
ment . . . does not have to turn the other cheek when
it has the explanation to defense-created misim-
pressions. The trial court needs to use its seasoned trial
experience in a common sense, realistic consideration of
the problem.” 784 F.2d 248, 255 (7th Cir. 1986).
Here, Tejeda argues that the cross-examination high-
lighted “the fact that Tejeda’s girlfriend was in pos-
session of the premises at the time of the search” and that
the search did not result in her arrest. According to
Tejeda, he was “not attempting to place some inno-
cent gloss on Tejeda’s possession of ammunition.” If he
wanted to focus on the girlfriend, however, Tejeda
would not have asked about the legality of possession of
ammunition. By doing so, Tejeda opened the door some-
what, and the government sought to clear up the de-
fense-created misimpression. The district court exer-
cised its discretion and admitted the testimony. The
government did not dwell on the answer, either by at-
tempting to go into details about Tejeda’s prior convic-
tion or by arguing the conviction in its closing argu-
ment. We cannot conclude that the trial judge abused his
discretion.
H. Whether the district court properly refused to
bifurcate the trial into guilt and drug quantity
phases.
On the penultimate day of trial, Melero moved to
bifurcate the guilt and drug quantity phases, arguing that
otherwise he would have to simultaneously argue that
he was not a member of a drug conspiracy as charged but,
that if he was, “he was not involved in the quantities of
32 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
drugs charged by the Government.” The district court
denied the motion, stating, “I don’t see the prejudice
frankly.” Melero argues on appeal that the court violated
his Fifth and Sixth Amendment rights and otherwise
abused its discretion by failing to bifurcate the issues of
guilt and drug quantity. A trial court has discretion to
decide whether to bifurcate a trial, and we evaluate
denial of a motion to bifurcate for abuse of discretion.
See Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir.
2000).
As the district court recognized here, it’s not clear
that Melero’s arguments were even inconsistent: to argue
that he was not a member of the conspiracy did not
amount to conceding drug quantity, nor did arguing the
drug quantity require an admission of guilt on the con-
spiracy. The court did not abuse its discretion in
denying Melero’s motion.
I. Whether the district court properly admitted a
co-conspirator statement by Alviar that he and
Melero were enforcers in the Latin Kings.
Cooperating witness Olivares testified that he had been
a Latin King in Aurora who was imprisoned until
August 2003. On being released from prison, Olivares
began cooperating with the FBI. On March 25, 2004,
Olivares recorded a conversation with Alviar in which
Alviar stated: “Me and Pep Dog [Melero] got those
spots. He’s the enforcer, I’m hood enforcer.” Olivares
described those enforcer positions as high positions.
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 33
The defense objected to the recording on the ground
that Alviar’s statements to Olivares were not made in
furtherance of the conspiracy and were admissible only
against Alviar. The district court admitted the record-
ing. Melero appeals. He argues that the court abused
its discretion by permitting conversations with a con-
fidential informant for the government into evidence
under 28 U.S.C. § 801(d)(2)(E).
In conspiracy cases statements that are “part of the
information flow between conspirators intended to help
each perform his role” satisfy the “in furtherance” require-
ment of Rule 801(d)(2)(e). Garlington v. O’Leary, 879
F.2d 277, 283 (7th Cir. 1989) (quoting United States v. Van
Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988)). Such state-
ments include those made to alert members to the
progress of the conspiracy and their roles in it. See
United States v. Hunt, 272 F.3d 488, 495-96 (7th Cir. 2001).
The district court had ample grounds to conclude that
Alviar’s statement to Olivares furthered the conspiracy.
J. Whether the district court clearly erred in attribut-
ing more than 150 kilograms of cocaine to Tejeda
for sentencing purposes and in assessing him an
enhancement for being a leader or organizer of
extensive criminal activity.
Tejeda was sentenced at a base offense level of 38 based
on a finding that the cocaine involved in the conspiracy
and chargeable to Tejeda totaled 171.6 kilograms. Among
other enhancements, the district court enhanced Tejeda’s
offense level by four points pursuant to U.S.S.G. § 3B1.1(b)
34 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
based on a finding that he was an organizer or leader
of criminal activity involving five or more participants.
Tejeda argues on appeal that he is entitled to resen-
tencing because the court erred in its drug quantity
calculations and in enhancing his offense level based on
its finding that he was an organizer or leader. We review
a court’s factual findings at sentencing for clear error.
United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005).
In terms of drug quantity, the government relied on
testimony of cooperating witness Lopez to make its
calculations. Lopez testified that from approximately
January to September 2000, Tejeda dealt between
one-quarter and one-half ounce of cocaine per week. The
mid-point of this range is 10.5 grams, and 10.5 grams
times 39 weeks amounts to 409.5 grams. From approxi-
mately October 2000 to December 2001, Lopez testified,
Tejeda dealt approximately 1/8 kilo per week, and
126 grams times 65 weeks amounts to 8,190 grams. From
approximately January to June 2002, Tejeda dealt ap-
proximately 1/4 kilo per week, and 250 grams times 22
weeks amounts to 5,500 grams. And from approximately
July 2002 to March 2005, Tejeda dealt one to two kilo-
grams per week, and one kilogram times 142 weeks
amounts to 142,000 grams. Tejeda, Madrigal, Melero, and
Delgado- Rios also stole some 4 kilograms, and defendants
Tejeda, Alviar, and Heriverto Rios attempted to purchase
10 kilograms of cocaine as part of the conspiracy.
The district court stated:
[T]hese were not kilogram transactions. They were
small, relatively small transactions. . . . But it’s still
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 35
enough to max out on the threshold of the 38 offense
level under the guidelines. . . . [T]hey were small
quantity transactions, but they occurred over an
awfully long period of time, and that’s how it adds
up, just so the record is clear about that.
We analyze the district court’s finding for clear error.
The court was “entitled to estimate drug quantity using
testimony about the frequency of dealing and the amount
dealt over a specified period of time.” United States v.
Hernandez, 544 F.3d 743, 746 (7th Cir. 2008) (quoting
United States v. Noble, 246 F.3d 946, 952 (7th Cir. 2001)).
While a defendant must be sentenced on the basis of
reliable information, United States v. Bautista, 532 F.3d
667, 672 (7th Cir. 2008), and a court may not base its
calculation on pure speculation, United States v. Jarrett,
133 F.3d 519, 530 (7th Cir. 1998), the court may use a
reasonable estimate of the drug quantities. United States
v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008). The court’s
finding that Tejeda was responsible for more than 150
kilograms of cocaine was supported by the evidence,
and there was no clear error.
Tejeda also advances an argument based on the leader-
ship enhancement. In arguing for a leader or organizer
role adjustment, the government pointed to Lopez’s
asserted role as subservient to Tejeda (packaging and
transporting cocaine for Tejeda, transporting Tejeda for
drug deals, storing cash, cocaine, and guns for Tejeda);
Tejeda’s recruitment of Samaniego to purchase a motor-
cycle in order to launder drug proceeds; Tejeda’s claimed
recruitment of Alviar and Rios in the attempt to pur-
36 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
chase 10 kilograms of cocaine; and Tejeda’s calls to
Melero and Madrigal when his home was fired upon. The
defense argued that the conspiracy was a disorganized
conspiracy without leadership.
The district court found that “the enhancement itself is
based on relative culpability. And relatively speaking,
I heard more than enough evidence to convince me that
he was a leader of the people that he was dealing with,
at least some of them, and that there were five or
more people in the conspiracy.” The court enhanced the
offense level four points based on § 3B1.1(b), which
provides, “If a defendant was an organizer or leader of
a criminal activity that involved five or more par-
ticipants or was otherwise extensive, increase by 4 levels.”
On appeal, Tejeda does not dispute that there were
five or more participants, but he points out that § 3B1.1(b)
includes three categories: organizer or leader of criminal
activity involving five or more participants (4 points);
manager or supervisor of criminal activity involving five
or more participants (3 points); or organizer, leader,
manager, or supervisor of lesser criminal activity
(2 points). He continues that for the four point enhance-
ment, the government had to show the defendant had
real and direct influence over other participants. He
argues that the government did not demonstrate real
influence.
Note 4 to § 3B1.1(b) lists factors to be considered in
assessing the aggravating role adjustment, including “the
exercise of decision making authority, the nature
of participation in the commission of the offense, the
Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 37
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participa-
tion in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control
and authority exercised over others.” No factor listed in
the application note is essential to finding the enhance-
ment, nor must we give equal weight to each factor.
United States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006).
“[A]lthough the nature and purposes of the enhance-
ment certainly require the defendant to have played a
leading role in the offense, he need not literally have
been the boss of his cohorts in order to qualify for the
enhancement, for a leader can influence others through
indirect as well as direct means.” Id. at 729-30.
In this case, there was evidence showing that Lopez
worked for Tejeda and that Tejeda oversaw Lopez in
selling cocaine. There was evidence that Tejeda recruited
Manny Samaniego (Cruz Samaniego’s brother) to launder
drug proceeds and purchase a motorcycle. Tejeda also
recruited Alviar and Rios to join him in the attempted
robbery of 10 kilograms. Tejeda used Melero as a lookout.
Based on this evidence, there was no clear error in the
district court’s decision to enhance the offense level four
points based on leadership.
K. Whether the district court improperly sentenced
Madrigal.
Finally, Madrigal contends that the district court improp-
erly sentenced him based on drug quantities in excess
of those reflected in the jury’s verdict.
38 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385
The jury verdict found Madrigal responsible for more
than 500 grams but less than five kilograms of cocaine.
At sentencing, the district court, while recognizing its
authority to sentence based on amounts in excess of the
jury’s verdict, refused to find Madrigal responsible for
any amount beyond the five kilograms found by the jury
(“In this case . . . I feel constrained to honor the jury’s
finding”). The court found Madrigal responsible for
between three-and-a-half and five kilograms of cocaine,
which together with a firearms enhancement, brought
Madrigal to level 32, category VI. The guideline range
was 210 to 262 months. Madrigal received 240 months.
The court sentenced based on quantities within the
range found by the jury, which was proper.
III. Conclusion
We A FFIRM the district court on all counts.
7-23-09