United States v. Faustino Arrellano , 757 F.3d 623 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1474
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FAUSTINO ARRELLANO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-cr-00802-3 — Matthew F. Kennelly, Judge.
____________________
ARGUED NOVEMBER 6, 2013 — DECIDED JULY 2, 2014
____________________
Before WOOD, Chief Judge, and FLAUM and TINDER, Circuit
Judges.
TINDER, Circuit Judge. Faustino Arrellano was convicted
of one count of conspiring to possess heroin and cocaine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)
and 846, and two counts of using a cell phone to facilitate
that conspiracy, in violation of 21 U.S.C. § 843(b). At trial, the
government introduced Arrellano’s cell phone, as well as
several wiretapped telephone conversations involving Arrel-
2 No. 13-1474
lano’s alleged co-conspirators. On appeal, Arrellano argues
that his cell phone and those co-conspirator statements
should have been suppressed and that the evidence was in-
sufficient to support his convictions. However, the co-
conspirator statements were properly admitted, any error in
admitting Arrellano’s cell phone was harmless, and the evi-
dence was sufficient to support his convictions. Therefore,
we affirm.
I. BACKGROUND
Our discussion of the facts is extensive because the suffi-
ciency of the evidence at trial is at issue. In 2009, a joint task
force consisting of the Chicago Police Department, the FBI,
the DEA, and other federal agencies began investigating var-
ious suspected drug traffickers in the greater Chicago area.
In early 2010, investigators learned that a man named Rob-
erto Romero was distributing cocaine and heroin in the area.
The FBI subsequently obtained a court-approved wiretap for
Romero’s phone and learned that his supplier was a man
named Moises Villalobos.
During the summer of 2010, investigators turned their at-
tention to Villalobos. The FBI secured a series of wiretaps for
phones used by Villalobos, and members of the task force
began conducting surveillance of Villalobos and his associ-
ates. This led to the seizure of some of the drugs that Villa-
lobos supplied to Romero. In addition, during their surveil-
lance, members of the task force frequently observed Villa-
lobos driving a green Honda Accord and visiting two resi-
dences situated roughly a mile apart from each other on the
northwest side of Chicago, one at 2826 North Long Avenue
and the other at 2455 North McVicker Avenue.
No. 13-1474 3
On August 9, 2010, the FBI intercepted a call between Vil-
lalobos and an associate named Aoclaro. During that con-
versation, Villalobos told Aoclaro that “by day after tomor-
row, a 12 is supposed to get here.” On August 12, Villalobos
spoke with Aoclaro again and said, “Look, because it’s al-
ready here. We have got 12. There are 12 around here. We’re
just waiting for Ingeniero to come over so he can check the
construction work for us.” Based on these conversations, the
FBI believed that Villalobos had received a 12-kilogram
shipment of heroin.
On August 15, 2010, at 8:40 a.m., the FBI intercepted a
call between Villalobos and Rosa Fernandez, who would lat-
er be charged as Arrellano’s co-defendant in this case. To
complete this call, Fernandez’s phone utilized a cell tower
covering the area of her residence in Kenosha, Wisconsin.
The conversation was brief. After they greeted each other,
Villalobos simply said, “It’s ready,” and Fernandez respond-
ed, “All right then, I will be there shortly.”
About an hour later, at 9:38 a.m., the FBI intercepted a
call between Villalobos and an associate named Klen. Dur-
ing that conversation, Klen asked Villalobos, “Will you be
set with just one hand?” In response, Villalobos said,
“[T]hrow in the two, we’ll put some effort into it.” Later, at
10:26 a.m., Villalobos spoke with Aoclaro and said, “Aside
from the 12, they added another 10 on me.” Based on these
conversations, the FBI believed that Villalobos was about to
receive a 10-kilogram shipment of heroin.
Shortly thereafter, at 10:55 a.m., Villalobos spoke with
Klen again, and Klen explained that “the young guy … can’t
find the house.” Villalobos responded, “Tell him that on Di-
versey and Austin there’s a Dunkin’ Donuts. Have him park
4 No. 13-1474
there and the guy will go there.” At 11:07 a.m., Villalobos
spoke with Klen once more, and Klen advised that his guy
was wearing a red t-shirt.
Around the same time, FBI Special Agents David Ostrow
and William Roecker met at the Dunkin’ Donuts at the cor-
ner of Diversey and Austin in Chicago, where they spotted a
Hispanic male wearing a red t-shirt and sitting in a black
Nissan Sentra in the parking lot. To avoid letting on about
the ongoing investigation, the agents approached the man
with a ruse, telling him that they had received reports that
there was someone in the area with a gun, and asking his
permission to search his car. After the man consented, the
agents found a black suitcase in the trunk of the car, which
contained approximately 10 kilograms of heroin.
At 11:41 a.m., the FBI intercepted another call between
Villalobos and Fernandez. This time, Fernandez’s phone uti-
lized a cell tower covering the area of the McVicker resi-
dence, as well as the aforementioned Dunkin’ Donuts. Dur-
ing this call, Villalobos complained that he had been calling
the “young man,” and “it seems the phone is not charged.
He doesn’t answer me anymore.” Then, Villalobos said,
“Look, … from where the Dunkin’ Donuts is upwards. Go
around there and you will see him around there. Go around
there. See if you see anything around there.” Fernandez re-
sponded, “All right then. I’m on my way.”
At 11:49 a.m., Villalobos called Fernandez again and
asked whether she saw anything “over there at the coffee
shop.” Fernandez responded, “Nothing, … just people
drinking coffee.” Villalobos then instructed her, “Go and
check by the little house and see if you see anything. Knock
at the young man’s door, see what’s going on.” At 11:57
No. 13-1474 5
a.m., Fernandez called Villalobos back and said, “I don’t see
anything. It’s quiet here.” For both of these calls, Fernan-
dez’s phone utilized the same cell tower covering the area of
the McVicker residence and the Dunkin’ Donuts.
Up to this point, Arrellano’s name had yet to come up in
the investigation. However, on August 15, the day of the sei-
zure at Dunkin’ Donuts, Arrellano activated a new cell
phone, which he registered in his name using the address
4836 West Barry Avenue, Chicago, Illinois. This was the
same address Fernandez had used for her cell phone regis-
tration, though neither Arrellano nor Fernandez actually
lived there. All of the calls Arrellano made or received on his
new cell phone between 5:45 p.m. on August 15 and 11:53
p.m. on August 17 utilized a cell tower covering the area of
Fernandez’s residence in Kenosha, Wisconsin. Three of those
calls involved another Villalobos associate known as Gau.
At 12:40 p.m. on August 17, ten minutes after one of Ar-
rellano’s conversations with Gau, Villalobos called Fernan-
dez’s phone and asked to speak to “the young man.” In re-
sponse, Fernandez put Arrellano on the phone. Villalobos
then asked Arrellano, “What’s going on, buddy? I have been
calling you.” Arrellano explained that he had a new number,
to which Villalobos replied, “All right. Call me with the oth-
er one.” A few minutes later, Arrellano called Villalobos
from his new cell phone. During that conversation, Arrella-
no described the situation as “a little hot” and said, “It’s not
possible to work. Basically the only thing to do is to wait.”
A few minutes after this conversation with Arrellano,
Villalobos spoke with Gau, who said, “We been trying to lo-
cate you. My buddy is pretty spooked out. His hair is stand-
ing … up.” Villalobos responded, “Well, yes, cousin. I called
6 No. 13-1474
him a little while ago. He said he’s worried. On top of that,
he’s with a lady, a friend of ours. She’s alone. It’s good the
buddy is keeping her company.”
Later in the same conversation, Villalobos told Gau, “The
thing is that, eh, one of our comrades around there, they
took him to the hospital over there with … 10 countrymen
that were coming with him, and that’s why we made a little
space, cousin.” Gau asked, “Oh, that young man, if he went
to the hospital, he’s going to stay there for a long while,
right? He’ll be admitted. That’s almost cancer for life, right?”
Villalobos responded, “Right now there are two possibilities.
They may let them free or they may keep them inside,
cousin. I believe right now there’s only an ambulance
around there. I think if there’s only one ambulance, some-
times they keep the tools and they let them go, cousin. Right
now since like, you know, the crisis is tough, that’s what the
fuckers are doing.”
Later that evening, at 8:30 p.m., Villalobos spoke with
Arrellano again and asked him to “come on over tomorrow
so you can check it out.” When Arrellano asked why, Villa-
lobos said, “To see if you can tell the lady to get my goats
out.” Arrellano then asked, “Did they … take the tools away
already?” Villalobos responded, “Eh, no, not yet. They’re go-
ing to go tomorrow.” Villalobos noted that Arrellano would
need to “go over there pretty early” and asked him to make
arrangements with “the cousin Adan” to get the key and
“take out the, eh, the little truck.” Arrellano suggested that if
“he can go very early, way before,” then “everything will be
left clean and there’s … nothing left to do.” Villalobos
agreed and said, “And so you can get in there, too.” Arrella-
No. 13-1474 7
no responded, “Yes, the most … we’ll need to be there will
be an hour. That’s all.”
Later that night, at 11:53 p.m., Villalobos called Arrellano
again and told him to “come over around 7:00, 7:30.” Then,
Villalobos asked to speak to Fernandez. After Arrellano put
Fernandez on the phone, Villalobos and Fernandez dis-
cussed their plans to meet the next day, and Villalobos asked
Fernandez to bring a large suitcase. Based on these conversa-
tions, the FBI anticipated that Villalobos was going to meet
Arrellano and Fernandez at the Long residence the next day.
At 6:36 a.m. the next morning, August 18, the FBI inter-
cepted a call between Villalobos and an associate known as
Ingeniero (the Spanish word for engineer). Ingeniero’s cell
phone was registered to a post-office box in Irvine, Califor-
nia, but it had a South Carolina area code, and it utilized a
cell tower in South Carolina to complete this call. During the
conversation, Villalobos asked, “Where do you have it right
now?” Ingeniero responded, “It’s in the garage in the Har-
vey.” Based on this call, the FBI believed that the 12-
kilogram shipment of heroin Villalobos had previously re-
ceived had been moved to a garage in Harvey, Illinois.
Also on August 18, at around 7:30 a.m., the task force set
up surveillance of the Long house. At 8:52 a.m., Fernandez
was spotted sitting in her beige Chevy Malibu in the alley
behind the house. Shortly thereafter, Fernandez got out of
the car and opened the trunk, at which point Villalobos and
another Hispanic male walked into the alley and put two
bags into the trunk. Villalobos’s girlfriend, Anahi Diaz, fol-
lowed. At that point, Fernandez, Diaz, and Villalobos got
into the car and drove away, while the unidentified Hispanic
male stayed behind. Fernandez then drove Villalobos and
8 No. 13-1474
Diaz to the Marriott hotel on North Michigan Avenue in
Chicago, where she dropped them off.
At 10:15 a.m., Arrellano called Villalobos utilizing a cell
tower covering the area of the Long residence. During that
call, Arrellano asked Villalobos to “call the lady to see if
there’s anything else here.” Villalobos advised Arrellano that
if he was finished, he should “go over there where she
picked you up the other time, so she can go over there and
that’s it.” About a half hour later, Villalobos called Fernan-
dez and said, “The guy told me you should go pick him up
already where you picked him up the last time.”
Later that evening, at 6:26 p.m., Arrellano spoke with Vil-
lalobos again and told him, “no matter what you can’t lower
your guard. You have to be alert at all times. Be careful.” Vil-
lalobos agreed and said, “I’ll have the number for this
cousin, Adan, and we are going to keep on trying hard.”
Then, referring to “the little truck,” Arrellano said, “I put all
the tools in there, so nothing is left inside over there, in the
house.”
The next day, August 19, members of the task force ar-
rested Villalobos at the Marriott hotel on Michigan Avenue.
Then, with Villalobos’s consent, they searched his hotel
room. The search turned up more than $4,000 in cash, two
cell phones, and various documents, including a list of
phone numbers. That list included phone numbers for
Aoclaro, Klen, Gau, and Fernandez (under the nickname
Polamitu). However, it did not include Arrellano’s name or
phone number.
Later that evening, members of the task force searched
the Long and McVicker residences. At the McVicker resi-
No. 13-1474 9
dence, they found nearly a kilogram of cocaine, about one
and a half kilograms of heroin, and $774,500 in cash. How-
ever, they found nothing of evidentiary value at the Long
residence. Indeed, as Chicago Police Officer Jason Brown tes-
tified, the Long residence “had the appearance of a house
that was recently lived in, and somebody appeared to have
left in a hurry.”
Meanwhile, the task force began tracking the GPS coor-
dinates of Arrellano’s cell phone. By 11:41 p.m. on August
19, the day Villalobos was arrested, the phone had moved to
Arrellano’s residence in Lula, Georgia. However, just before
midnight on August 23, calls were made between Arrella-
no’s phone and a recently activated cell phone that had the
same South Carolina area code and was registered to the
same California post-office box as the phone previously used
by Ingeniero, the Villalobos associate who had indicated that
the heroin had been moved to a garage in Harvey, Illinois.
The next day, August 24, Arrellano’s phone moved from his
residence in Georgia to a house located at 16000 Carol Ave-
nue in Harvey, Illinois. During that trip, two calls were
made between Arrellano’s phone and Gau’s phone.
The night of August 24, about eight or nine agents set up
surveillance of the Harvey residence. At 9:50 p.m., GPS data
showed that Arrellano’s cell phone had moved away from
the residence. Then, at around 10:00 p.m., the agents saw the
green Honda Accord they knew to be associated with Villa-
lobos arrive at the house and park in the detached garage. At
10:21 p.m., GPS data confirmed that Arrellano’s phone was
back in the residence.
At around 10:45 p.m., the agents knocked loudly on the
front door of the house, announcing that they were law en-
10 No. 13-1474
forcement and asking to speak to someone inside. When no
one answered, they walked around all sides of the house,
shouting and knocking loudly on all of the doors and win-
dows that were accessible to them. This continued intermit-
tently for nearly an hour. At one point, Harvey police offic-
ers arrived at the scene, responding to a call from someone
inside the house. However, those officers left after they too
tried knocking on the front door but received no answer.
At around 11:40 p.m., after a short lull in the agents’
knocking, a man named Alfredo Avilla Anzures (hereinafter,
“Avilla”) opened the door. DEA Special Agent Robert Fer-
gus approached Avilla and asked permission to come inside
and talk, to which Avilla ostensibly consented. As Avilla and
Agent Fergus retreated into the living room, about six or
seven other agents rushed into the house to conduct a pro-
tective sweep. The agents found several other people in the
house and brought them all into the living room, including
Arrellano, who was sleeping in one of the bedrooms. Agent
Fergus then asked Avilla if they could look around, and
again, Avilla ostensibly consented.
Meanwhile, FBI Special Agent Roecker, who had taken
part in the August 15 seizure, was outside on his cell phone,
speaking with an Assistant United States Attorney about the
possibility of obtaining a search warrant. After learning that
Agent Fergus had obtained consent to enter and search the
residence, Agent Roecker also entered and joined in the
search. In doing so, he found the phone registered in Arrel-
lano’s name in the bedroom where Arrellano had been
sleeping. Agent Roecker then returned to the living room
and asked who the phone belonged to, and Arrellano indi-
cated that the phone was his. Agent Roecker contacted an-
No. 13-1474 11
other agent who was familiar with the voice on the calls that
were intercepted involving that cell phone. Then, Agent
Roecker put Arrellano on the phone with the other agent,
who identified Arrellano’s voice as the one on those calls.
Ultimately, the agents obtained Avilla’s consent to search
the Honda Accord in the garage as well, and they found 24
packages containing over 13 kilograms of heroin. Arrellano
was arrested and charged in the U.S. District Court for the
Northern District of Illinois with one count of conspiring to
possess heroin and cocaine with intent to distribute, in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 846, and two counts of us-
ing a cell phone to facilitate that conspiracy, in violation of
21 U.S.C. § 843(b). The first cell phone count was based on
the 8:30 p.m. call on August 17, 2010, during which Villa-
lobos and Arrellano made arrangements to meet and clean
out the Long house the next morning. The second cell phone
count was based on the 6:26 p.m. call on August 18, 2010,
when Arrellano advised Villalobos to remain cautious and
told him that he had put all the “tools” in the little truck, “so
nothing is left inside over there, in the house.”
Before trial, Arrellano moved to suppress his cell phone,
as well as the statements he made to law enforcement and
the voice identification obtained when he was arrested on
August 24. The district court suppressed the voice identifica-
tion and Arrellano’s statements, finding that he was subject-
ed to custodial interrogation without Miranda warnings.
However, the district court denied Arrellano’s motion to
suppress his cell phone, finding that Avilla had apparent au-
thority to consent to the search of the bedroom and that
Avilla’s consent was voluntary.
12 No. 13-1474
Also before trial, the government moved to admit the
statements of Arrellano’s alleged co-conspirators from the
intercepted phone calls discussed above. The district court
granted the motion subject to the government’s proof of the
foundational elements for the co-conspirator hearsay excep-
tion at trial. At the close of the government’s case, Arrellano
objected to the co-conspirator statements on the ground that
the government had not proved the foundational elements
by a preponderance of the evidence, but the district court
disagreed and overruled the objection.
At trial, the government also introduced call records for
Arrellano’s cell phone, which catalogued the calls he made
and received during the relevant time period and identified
the cell tower used for each call. Arrellano stipulated that
these records were accurate, that the phone was subscribed
in his name, and that it was activated on August 15, 2010. In
addition, a contract linguist for the FBI testified that she
compared the voices on all of the calls that were intercepted
involving Arrellano’s phone, and the same voice was heard
on all of them. Also, the government presented expert testi-
mony from an experienced narcotics investigator to establish
that drug traffickers often speak in coded language, alt-
hough the expert did not testify about any of the particular
language used by the conspirators in this case. Finally, the
government introduced GPS data showing the location of
Arrellano’s phone from August 19 to 24, 2010, as well as a
deed showing that Arrellano owned the property where the
phone was located in Lula, Georgia, before it moved to the
residence where he was arrested in Harvey, Illinois.
Ultimately, the jury found Arrellano guilty on all three
counts. Arrellano subsequently moved for a judgment of ac-
No. 13-1474 13
quittal or a new trial, but the district court denied the motion
and sentenced him to 120 months’ imprisonment and five
years’ supervised release. Arrellano now appeals, arguing
that the district court should have suppressed his cell phone
and the co-conspirator statements and that the evidence was
insufficient to support his convictions.
II. DISCUSSION
We begin with Arrellano’s argument that the evidence
was insufficient to support his convictions, as our resolution
of that issue is relevant to our resolution of Arrellano’s sup-
pression arguments as well.
A. SUFFICIENCY OF THE EVIDENCE
“We will overturn a verdict for insufficiency of the evi-
dence only if, after viewing the evidence in the light most
favorable to the government, the record is devoid of evi-
dence from which a rational trier of fact could find guilt be-
yond a reasonable doubt.” United States v. Reed, 744 F.3d 519,
526 (7th Cir. 2014). With respect to the drug-distribution
conspiracy charge, “the question is whether any rational ju-
ror could find that (1) two or more people agreed to possess
and distribute cocaine [and heroin], and (2) [Arrellano]
knowingly and intentionally joined in this agreement.” Unit-
ed States v. Luster, 480 F.3d 551, 555 (7th Cir. 2007). With re-
spect to the cell phone charges, the question is whether Ar-
rellano “knowingly or intentionally” used his cell phone to
facilitate the underlying drug-distribution conspiracy. 21
U.S.C. § 843(b); see also United States v. Jones, 713 F.3d 336,
346 (7th Cir. 2013).
Arrellano does not dispute that Villalobos orchestrated a
conspiracy to distribute heroin and cocaine in the Chicago
14 No. 13-1474
area in 2010. Villalobos’s statements and the large quantities
of those drugs seized at the Dunkin’ Donuts on August 15,
the McVicker residence on August 19, and the Harvey resi-
dence on August 24 were sufficient to establish the existence
of the conspiracy. However, Arrellano contends that the evi-
dence was insufficient to establish that he ever joined the
conspiracy, or that he used his cell phone to facilitate the
conspiracy. We disagree.
We begin with the events of August 15, 2010, when FBI
agents intercepted a 10-kilogram shipment of heroin intend-
ed for Villalobos. While Villalobos was trying to figure out
what was going on with the shipment, he spoke to Fernan-
dez and expressed his frustration at not being able to reach
“the young man,” saying “it seems the phone is not charged.
He doesn’t answer me anymore.” A little later, Villalobos
instructed Fernandez to look around, “[k]nock at the young
man’s door, see what’s going on.”
The same day, Arrellano activated a new cell phone.
Then, beginning that evening and continuing over the next
couple of days, Arrellano made and received calls on his
new phone utilizing a cell tower covering Fernandez’s resi-
dence in Kenosha, Wisconsin. Three of those calls involved a
Villalobos associate named Gau.
On August 17, Villalobos called Fernandez and asked to
speak to “the young man.” In response, Fernandez put Ar-
rellano on the phone. Villalobos asked, “What’s going on,
buddy? I have been calling you.” Arrellano explained that he
had a new number and then proceeded to call Villalobos
from his new phone. During that conversation, Arrellano
described the situation as “a little hot” and said, “It’s not
possible to work. Basically the only thing to do is to wait.”
No. 13-1474 15
A few minutes after this conversation with Arrellano,
Villalobos spoke with Gau, who said, “We been trying to lo-
cate you. My buddy is pretty spooked out. His hair is stand-
ing … up.” Villalobos responded, “Well, yes, cousin. I called
him a little while ago. He said he’s worried. On top of that,
he’s with a lady, a friend of ours. She’s alone. It’s good the
buddy is keeping her company.”
A reasonable jury could have inferred from this evidence
that Arrellano was “the young man” who was supposed to
receive the August 15 shipment of heroin for Villalobos.
When the shipment was intercepted by the FBI, Arrellano
got scared, ditched the cell phone he had been using, acti-
vated a new cell phone, and left the Chicago area with Fer-
nandez. This view is also supported by the fact that when
Arrellano was done cleaning out the Long house on August
18, Villalobos called Fernandez and said, “The guy told me
you should go pick him up already where you picked him
up the last time.” Thus, a reasonable jury could have found
that Arrellano’s participation in the conspiracy began on
August 15.
But his participation in the conspiracy did not end there.
On the evening of August 17, Villalobos spoke with both Ar-
rellano and Fernandez again, making arrangements to meet
them the next day. Villalobos told Arrellano to come over to
“see if you can tell the lady to get my goats out.” Arrellano
then asked, “Did they … take the tools away already?” Villa-
lobos responded, “Eh, no, not yet. They’re going to go to-
morrow.” Villalobos noted that Arrellano would need to “go
over there pretty early” and asked him to make arrange-
ments with “the cousin Adan” to get the key and “take out
the, eh, the little truck.” Arrellano suggested that if “he can
16 No. 13-1474
go very early, way before,” then “everything will be left
clean and there’s … nothing left to do.” Villalobos agreed
and said, “And so you can get in there, too.” Arrellano re-
sponded, “Yes, the most … we’ll need to be there will be an
hour. That’s all.”
The next morning, Villalobos, Diaz, Fernandez, and a
then-unidentified Hispanic male were seen in the alley be-
hind the Long residence. Villalobos and the unidentified
Hispanic male put two bags into the trunk of Fernandez’s
car, then Fernandez drove Villalobos and Diaz to the Mar-
riott hotel on Michigan Avenue. The unidentified Hispanic
male stayed behind at the Long residence.
A little later, Arrellano called Villalobos utilizing a cell
tower covering the area of the Long residence and asked him
to “call the lady to see if there’s anything else here.” Villa-
lobos advised Arrellano that if he was finished, he should
“go over there where she picked you up the other time, so
she can go over there and that’s it.”
Later that evening, Arrellano spoke with Villalobos again
and told him, “no matter what you can’t lower your guard.
You have to be alert at all times. Be careful.” Then, referring
to “the little truck,” Arrellano said, “I put all the tools in
there, so nothing is left inside over there, in the house.” And
indeed, when the house was searched after Villalobos’s ar-
rest on August 19, nothing of evidentiary value was found.
As Officer Brown testified, it “had the appearance of a house
that was recently lived in, and somebody appeared to have
left in a hurry.”
A reasonable jury could have inferred from this evidence
that Arrellano was the Hispanic male seen at the Long house
No. 13-1474 17
with Villalobos, Fernandez, and Diaz on August 18 and that
Arrellano helped removed drugs from the house in further-
ance of the conspiracy. Arrellano contends that the govern-
ment failed to prove that he removed anything more than
tools from the house, because it introduced no evidence that
the word “tools” was code for “drugs.” But contrary to his
assertion, the government was not required to present expert
testimony on this point. Instead, Villalobos’s conversation
with Gau on August 17 provided ample support for the gov-
ernment’s position. During that conversation, Villalobos and
Gau discussed the seizure that occurred on August 15, and
Gau wondered whether the man who was found in posses-
sion of the heroin would be put away for a long time. In re-
sponse, Villalobos opined, “sometimes they keep the tools
and they let them go, cousin. Right now since like, you
know, the crisis is tough, that’s what the fuckers are doing.”
This conversation, considered in context, would allow a rea-
sonable jury to conclude that members of the conspiracy
used “tools” as a code word for “drugs.”
Indeed, the use of code itself provides additional evi-
dence of Arrellano’s participation in the conspiracy. The
government’s expert testified that as a general matter, drug
traffickers often speak in code, and it is undisputed that Vil-
lalobos was a drug trafficker. Therefore, the fact that Arrel-
lano and Villalobos used cryptic language yet had no diffi-
culty understanding each other further supports the infer-
ence that Arrellano was a member of Villalobos’s drug-
trafficking conspiracy.
A reasonable jury also could have found that Arrellano
knowingly used his cell phone to facilitate the conspiracy as
charged in the indictment. During the 8:30 p.m. call on Au-
18 No. 13-1474
gust 17, Arrellano and Villalobos made arrangements to
meet the next morning and discussed the removal of Villa-
lobos’s “goats” and “tools.” Then, during the 6:26 p.m. call
on August 18, Arrellano told Villalobos that he had put all
the “tools” in the little truck, “so nothing is left inside over
there, in the house.” In light of the other evidence, a reason-
able jury could have inferred that these calls were about the
removal of drugs from the Long house. Thus, a reasonable
jury could have found that the calls were knowingly made to
facilitate the conspiracy.
Moreover, Arrellano’s involvement in the conspiracy did
not end when Villalobos was arrested. By 11:41 p.m. on Au-
gust 19, Arrellano was back at his residence in Georgia, but
on the evening of August 23, calls were made between his
cell phone and a recently activated cell phone that had the
same South Carolina area code and was registered to the
same California post-office box as the phone previously used
by Ingeniero, the Villalobos associate who had indicated that
the heroin had been moved to a garage in Harvey, Illinois.
Then, on August 24, Arrellano drove from Georgia to a
house in Harvey, speaking to Gau (another known conspira-
tor) twice during the trip. When agents set up surveillance of
the residence that evening, they saw the green Honda Ac-
cord associated with Villalobos arrive and park in the de-
tached garage. Ultimately, the agents found 13 kilograms of
heroin in that vehicle, and they arrested Arrellano at the
scene.
A reasonable jury could have inferred from this evidence
that Arrellano continued to communicate with members of
the conspiracy after Villalobos was arrested, learned where
No. 13-1474 19
the heroin was located at that time, and travelled to that lo-
cation in furtherance of the conspiracy.
In sum, we note that “[a] jury is not limited to direct evi-
dence and may find an agreement to conspire based upon
circumstantial evidence and reasonable inferences drawn
from the relationship of the parties, their overt acts, and the
totality of their conduct.” United States v. Wantuch, 525 F.3d
505, 519 (7th Cir. 2008). When we consider all of the reason-
able inferences discussed above in combination, we find
overwhelming evidentiary support for the proposition that
Arrellano was a member of a drug-distribution conspiracy
and used his cell phone to facilitate that conspiracy on both
of the occasions charged in the indictment. Therefore, a rea-
sonable jury could have found him guilty beyond a reasona-
ble doubt on all three counts, and we will not disturb a ver-
dict so amply supported.
B. CO-CONSPIRATOR STATEMENTS
Next, Arrellano argues that the intercepted phone calls
the government introduced at trial contained inadmissible
hearsay that should have been excluded. However, under
Federal Rule of Evidence 801(d)(2)(E), a statement offered
against a party is considered nonhearsay so long as it “was
made by the party’s coconspirator during and in furtherance
of the conspiracy.” To invoke this rule, the government must
prove by a preponderance of the evidence “that a conspiracy
existed, the defendant and the declarant were members of
the conspiracy, and the statement was made during and in
furtherance of the conspiracy.” United States v. Villasenor, 664
F.3d 673, 681–82 (7th Cir. 2011).
20 No. 13-1474
Before trial, the district court conditionally admitted the
intercepted phone calls subject to the government’s ability to
prove the foundational elements for the co-conspirator hear-
say exception at trial. At the close of the government’s case,
Arrellano objected to the calls, arguing that the government
failed to do so, but the district court disagreed and overruled
the objection. “We review the district court’s findings with
regard to these elements for clear error.” United States v. Rea,
621 F.3d 595, 604 (7th Cir. 2010) (quoting United States v.
Skidmore, 254 F.3d 635, 638 (7th Cir. 2001)). In doing so, we
must keep in mind that the statement sought to be admitted
“must be considered but does not by itself establish … the
existence of the conspiracy or participation in it.” Fed. R.
Evid. 801(d)(2).
Again, Arrellano does not dispute that a drug-
distribution conspiracy existed. Nor does he dispute that the
statements of his alleged co-conspirators were made during
and in furtherance of that conspiracy. Instead, he argues that
the government failed to prove by a preponderance of the
evidence that he ever joined the conspiracy. But as discussed
above, a reasonable jury could have found that Arrellano
joined the conspiracy beyond a reasonable doubt. Therefore,
we cannot say that the district court clearly erred in finding
that the government met its burden under the lesser pre-
ponderance standard.
Arrellano complains that many of the statements admit-
ted against him were made before he allegedly joined the
conspiracy. But “it is well established that a defendant who
joins a conspiracy ‘[takes] the conspiracy as he found it.
When he joined and actively participated in it he adopted
the previous acts and declarations of his fellow co-
No. 13-1474 21
conspirators.’” United States v. Adamo, 882 F.2d 1218, 1230–31
(7th Cir. 1989) (alteration in original) (quoting United States
v. Coe, 718 F.2d 830, 839 (7th Cir. 1983)). Thus, “it is irrele-
vant when [Arrellano] joined the conspiracy, so long as he
joined it at some point.” United States v. Handlin, 366 F.3d
584, 590 (7th Cir. 2004). The evidence was sufficient to estab-
lish that he did.
Moreover, that evidence was not limited to the state-
ments of his co-conspirators; among other things, it included
his own telephone conversations, cell phone records show-
ing that he made calls from Fernandez’s residence in Ke-
nosha and the Long residence in Chicago, and GPS data
tracking his phone from Georgia to the house in Harvey
where law enforcement found approximately 13 kilograms
of heroin. Because the evidence of Arrellano’s participation
in the conspiracy was strong and was not limited to the co-
conspirator statements themselves, those statements were
properly admitted.
C. ARRELLANO’S CELL PHONE
Finally, Arrellano argues that his cell phone should have
been suppressed because Avilla’s consent to the search of
the Harvey residence was both involuntary and tainted by
his unlawful detention. At least with respect to voluntari-
ness, Arrellano has a point. Avilla allowed agents to enter
the Harvey residence only after they pounded on its doors
and windows for nearly an hour, and he consented to a
search of the house only after several agents rushed in and
conducted a protected sweep of every one of its rooms. Un-
der these circumstances, it could be a stretch to consider
Avilla’s consent to the search to have been voluntary. How-
22 No. 13-1474
ever, we need not resolve the issue, because error, if any, in
admitting Arrellano’s cell phone would have been harmless.
Although the government did not argue harmlessness in
its brief, “we are authorized, for the sake of protecting third-
party interests including such systemic interests as the
avoidance of unnecessary court delay, to disregard a harm-
less error even though through some regrettable oversight
harmlessness is not argued to us.” United States v. Ford, 683
F.3d 761, 768 (7th Cir. 2012) (quoting United States v. Giovan-
netti, 928 F.2d 225, 226 (7th Cir. 1991)). In this case, any error
in admitting Arrellano’s cell phone was clearly harmless.
Therefore, we decline to prolong the case by ordering a new
trial on the ground that the phone should have been exclud-
ed.
Arrellano argues that he was harmed by the introduction
of the phone because it was the “only physical evidence”
that connected him to the alleged conspiracy. However,
physical evidence is not required to support a conviction,
nor is it inherently better than other evidence. Cf. United
States v. Re, 401 F.3d 828, 834 (7th Cir. 2005) (quoting United
States v. Rodriguez, 53 F.3d 1439, 1445 (7th Cir. 1995)) (noting
that “circumstantial evidence may be the sole support for a
conviction” and that it “is not less probative than direct evi-
dence and, in some cases is even more reliable”). And as dis-
cussed above, there was plenty of other evidence to establish
Arrellano’s participation in the conspiracy. Indeed, we
found no need to even mention the physical phone in our
earlier discussion of the sufficiency of the evidence.
Even so, Arrellano argues that he was harmed by the in-
troduction of the phone because the government highlighted
it as a significant piece of evidence and insisted that it be
No. 13-1474 23
sent back with the jury. However, the government did not
rely on any data recovered from the phone, such as stored
contacts or call history; it had phone records to prove those
things. Thus, the only fact that the introduction of the phone
itself tended to prove was that Arrellano physically pos-
sessed it at the time of his arrest, and consequently, that he
was the person who used the phone during the relevant pe-
riod.
However, Arrellano stipulated that the phone was sub-
scribed in his name, and GPS data showed that it moved
from the house he owned in Lula, Georgia, to the house
where he was arrested in Harvey, Illinois. Thus, even if the
physical phone had been suppressed, no reasonable jury
could have concluded that someone other than Arrellano
possessed and used the phone during the relevant period.
Moreover, the government proved that the same voice was
heard on all of the calls that were intercepted to or from that
phone, so no reasonable jury could have doubted that Arrel-
lano was the person speaking on those calls. Therefore, any
error in admitting the phone was clearly harmless.
III. CONCLUSION
The district court properly admitted the statements of
Arrellano’s co-conspirators, any error in admitting Arrella-
no’s cell phone was harmless, and the evidence was suffi-
cient to support Arrellano’s convictions. Therefore, we
AFFIRM.