United States v. Xavier Elizondo ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2167 & 20-2366
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
XAVIER ELIZONDO & DAVID SALGADO,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cr-286 — Matthew F. Kennelly, Judge.
____________________
ARGUED SEPTEMBER 22, 2021 — DECIDED DECEMBER 21, 2021
____________________
Before SYKES, Chief Judge, and FLAUM and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. Chicago Police Officers Xavier
Elizondo and David Salgado used their positions to embezzle
drugs and cash, some of which they distributed to informants.
As part of their scheme, they encouraged informants to
present false information to state judges to obtain search
warrants, which in turn yielded more drugs and cash. The FBI
caught on and initiated sting operations. The first sting failed
2 Nos. 20-2167 & 20-2366
because officers discovered security cameras the FBI had set
up at a vacant apartment, leading the defendants to inventory
the full amount of money they recovered there. After seeking
and obtaining court authorization to wiretap Elizondo’s
phone, the FBI conducted another sting operation. In the
second sting agents recorded Elizondo and Salgado stealing
cash they recovered from an FBI-controlled rental vehicle.
Salgado saw law enforcement towing the rental vehicle the
next day, and he told Elizondo, who in turn instructed
Salgado to “relocate” items from Salgado’s home.
A grand jury indicted Elizondo and Salgado on conspiracy
and theft charges related to their scheme. Elizondo was also
charged with obstruction of justice for instructing Salgado to
destroy or conceal evidence. They went to trial and a jury
found them guilty on all counts. Elizondo and Salgado
appeal: (1) the use of the evidence obtained from the
government’s wiretap application; (2) the district court’s
Batson inquiry during jury selection; (3) the sufficiency of
evidence on the obstruction charge; and (4) the district court’s
calculation of the intended loss under the Sentencing
Guidelines.
We find no reversible error. The wiretap application was
not an improper subterfuge search because the government
was forthright about the scope of its investigation. Likewise,
we can trace the logic of the district court’s Batson inquiry, and
that court followed the applicable steps. The evidence
presented at trial on the obstruction charge was sufficient for
the jury to infer that Elizondo acted with the intent to prevent
the use of evidence in an official proceeding. Finally, there
was no clear error in the district court’s loss calculation at
Nos. 20-2167 & 20-2366 3
sentencing. We therefore affirm Elizondo and Salgado’s
convictions and sentences.
I.
A. Factual Background
The criminal scheme. Elizondo and Salgado were Chicago
Police Department (“CPD”) officers assigned to the 10th
district team that worked gang and narcotics investigations
for an area of the city’s west side. Elizondo was the team’s
sergeant, which afforded him supervisory responsibilities.
Officers embedded with gang teams proactively investigate
crimes and develop relationships with confidential
informants, wearing civilian clothes to blend in with their
surroundings. They also investigate, prepare, and obtain
search warrants based on the informants’ anonymous tips.
Between mid-2017 and January 2018, Elizondo and
Salgado used their positions as gang-team officers to steal
cash and drugs from search locations. They distributed
portions of the proceeds to informants. The two officers also
encouraged informants to supply false information to state
judges to obtain search warrants, which they then executed,
stealing portions of the proceeds from those searches.
The investigation’s origins. In late 2017, after receiving
information about alleged corrupt activity, the FBI began
investigating Elizondo and Salgado’s CPD unit. Jeffrey
Owens, who went by the nickname “Cuba,” had been
working with the FBI as a confidential source on other
investigations. Cuba served as the FBI’s confidential
informant in this investigation. Antwan Davis—an
acquaintance of Cuba’s who FBI agents believed had a
relationship with corrupt CPD officers—introduced Cuba to
4 Nos. 20-2167 & 20-2366
Elizondo and Salgado. The FBI recorded conversations
between Cuba and Davis, in which Cuba sought to obtain
information about the officers.
The Maplewood apartment ruse. At the FBI’s direction, Cuba
told Elizondo and Salgado about a “drug stash house” where
he claimed large quantities of illegal narcotics were kept. But
the FBI had set up a sting operation. No drugs were placed at
the “stash house,”—an apartment located on Maplewood
Avenue. Instead, in December 2017, FBI agents placed $15,000
in cash at the apartment and equipped it with surveillance
cameras. Elizondo spoke to Cuba, offering to search the
apartment and give Cuba and Davis a portion of the items
recovered. Elizondo and Salgado obtained a search warrant
by arranging for Davis to provide false information to a state
judge.
On December 20, 2017, Elizondo, Salgado, and several
other officers raided the Maplewood apartment. Salgado
recovered the $15,000 in cash that the FBI had planted. The
CPD officers executing the search also discovered the hidden
surveillance cameras and disconnected them. So the officers
inventoried the $15,000 and did not steal any of it. On
December 28, 2017, Elizondo told Cuba that he and his team
had inventoried the full amount of cash recovered from the
apartment because the cameras had recorded the officers’
search. Per Elizondo, “if they didn’t find the cameras, it would
have been a good Christmas for everybody.”
The initial Title III application and order. Next, on January 24,
2018, the government sought court authorization to intercept
wire and electronic communications over Elizondo’s phone
under Title III of the Omnibus Crime Control and Safe Streets
Act of 1968. The government made its application to the Chief
Nos. 20-2167 & 20-2366 5
Judge of the United States District Court for the Northern
District of Illinois, who has responsibility for such matters in
that district. To support its request for a wiretap, the
government included the affidavit of FBI Special Agent Marc
Recca. In his affidavit, Agent Recca stated that the requested
wiretap concerned offenses involving the distribution of
narcotics (21 U.S.C. § 841), conspiracy to distribute narcotics
(21 U.S.C. § 846), and wire fraud (18 U.S.C. § 1343). Each of
those statutes is a predicate under Title III. See 18 U.S.C.
§ 2516(1)(c), (e).
The affidavit described the scope of the government’s
investigation to the Chief Judge:
[t]he FBI is investigating allegations that CPD
officers … including ELIZONDO and
SALGADO, are engaged in a corrupt scheme to:
(1) steal and embezzle evidence—namely,
narcotics and money—recovered during
searches conducted pursuant to their duties as
sworn law enforcement officers; and (2) provide
false information to judges in support of search
warrants as a means to fraudulently obtain
property.
The Chief Judge granted the government’s application for a
Title III order on January 24, 2018. The government
intercepted Elizondo’s phone conversations between January
24, 2018, and January 31, 2018.
The rental-vehicle ruse. At the FBI’s direction, Cuba told
Elizondo on January 28, 2018—four days into the wiretap of
Elizondo’s phone—that a drug dealer was storing drugs and
cash in a vehicle near Midway Airport on Chicago’s
6 Nos. 20-2167 & 20-2366
southwest side. The vehicle was in fact an FBI-controlled
rental car in which agents had placed $18,200 in cash. That
night, Elizondo and Salgado, along with two other officers,
arrived at the vehicle’s location and searched the car.
Elizondo discovered the cash, which was hidden in the right
compartment of the trunk. He showed the cash only to
Salgado, not the other officers, and he conferred with Salgado
privately. Next, Elizondo directed the other officers to move
the rental vehicle to a nearby warehouse parking lot to
continue the search, not a usual CPD practice. There, Salgado
took the cash from the trunk, and Elizondo placed it in his
CPD vehicle. Later that evening, Elizondo called Salgado and
told him, “[w]e’re good.” The officers inventoried only
$14,000 of the $18,200 seized from the rental vehicle.
The obstruction of justice. On January 29, 2018, CPD Internal
Affairs Lieutenant Timothy Moore—who was detailed as an
FBI task force officer—and FBI Special Agent Robert Leary
went to CPD’s Homan Square facility to recover the
inventoried $14,000 and the rental vehicle used in the
previous night’s operation. Moore and Leary called a tow
truck for the car, and Salgado approached them in the parking
lot. Moore identified himself as being from the CPD’s Internal
Affairs Division, and he stated he would be in contact with
Salgado.
Now worried, Salgado called Elizondo and told him CPD
Internal Affairs had towed the vehicle. Elizondo asked, “you
know what to do, right?” Salgado responded, “Yeah.”
Elizondo said, “Just relocate everything, alright?” Salgado
responded, “Huh?” Elizondo replied, “Just relocate
everything[,] you know?” Salgado responded in the
affirmative. Less than ten minutes later, Salgado called back
Nos. 20-2167 & 20-2366 7
and Elizondo told him to “just make sure, whatever you have
in your house isn’t there no more, you know what I mean?”
Salgado responded, “Yeah, yeah.” He asked Elizondo where
to put the items that were in his house, to which Elizondo
responded, “I don’t know[.]”
Salgado then traveled from Homan Square to his home,
where he stayed briefly. Elizondo and Salgado both deleted
call records from their cellphones over the next twelve hours,
including records of the calls in which Elizondo instructed
Salgado to remove items from his home.
Elizondo’s subsequent conversations. After speaking with
Salgado, Elizondo had several conversations with other
individuals that revealed he believed he was under criminal
investigation. In one conversation, Elizondo spoke to Davis
and asked about Cuba’s identity and legal name because “it
seems a little odd he says there’s gonna be drugs and money
there when we go there and it’s just money, you know?”
Around the same time—about 20 minutes after the last
recorded call in which he instructed Salgado to remove or
conceal evidence—Elizondo spoke to CPD officer Mike
Karczewski, telling him that the incident with the rental
vehicle involved the FBI.
A few minutes later, Salgado called Elizondo and told him
Moore was with the Confidential Matters unit of CPD Internal
Affairs, which investigates criminal activity by police officers.
Elizondo speculated that he and Salgado were the targets of
an investigation “because we do so many search warrants[.]”
Later that night, Elizondo also spoke by phone with CPD
officer Jose Lopez. Elizondo told Lopez that law enforcement
had “planted” money “in the car last night.” Further,
Elizondo stated that Cuba was obviously “working with the
8 Nos. 20-2167 & 20-2366
feds.” Lopez confirmed he shared Elizondo’s suspicion,
noting “with money that big it’s gonna be the–it’s gonna be
the feds.” Elizondo speculated the investigation was
specifically by the “FBI, group public corruption, I’m
assuming.”
The post-interception Title III application and order. The next
day, on January 30, 2018, the government requested judicial
authorization to use intercepted communications to
prosecute offenses including embezzlement, theft,
conspiracy, and obstruction of justice, asserting that the
communications were intercepted “incidentally and in good
faith during the course of the interceptions conducted
pursuant to the Interception Order” under 18 U.S.C. § 2517(5).
The Chief Judge agreed and granted the government’s post-
interception application that same day.
B. Procedural History
The grand jury returned an indictment charging Elizondo
and Salgado with conspiracy to embezzle, steal, and misapply
property in CPD custody, in violation of 18 U.S.C. § 371, and
theft of federal funds, in violation of 18 U.S.C. § 641. Salgado
was also charged with making a materially false statement to
a federal agent. Both defendants pleaded not guilty.
Elizondo moved to suppress the communications the FBI
had intercepted by wiretap, arguing the government had
engaged in a subterfuge search by seeking a Title III order to
intercept communications related to narcotics and wire-fraud
offenses but instead investigating offenses that were not
predicates under Title III. The government opposed, and in its
written opinion and order the district court denied the
motion. The court concluded that the government’s citation to
Nos. 20-2167 & 20-2366 9
the narcotics and wire-fraud statutes was not a subterfuge
because at the time of the wiretap application there was
probable cause to believe Elizondo would violate each set of
statutes.
Elizondo and Salgado were then charged in a seven-count
superseding indictment. Counts One, Two, and Three
charged both defendants with conspiracy to embezzle, steal,
and misapply property; conspiracy against Fourth
Amendment rights; and theft of federal funds, respectively.
Count Four charged Elizondo with attempting to corruptly
persuade Salgado to destroy or conceal an object for use in an
official proceeding—the federal grand jury investigation—in
violation of 18 U.S.C. § 1512. Count Five charged Salgado with
making a materially false statement to a federal agent by
telling an FBI agent that he did not remember whether he
returned home on January 29, 2018. Finally, Counts Six and
Seven charged both Elizondo and Salgado, respectively, with
altering or destroying a record with intent to impede,
obstruct, and influence the investigation and administration
of a matter within the FBI’s jurisdiction. Both defendants
proceeded to trial together.
At jury selection, the district judge raised, sua sponte, a
Batson challenge, stating that one of Elizondo’s attorneys
engaged in a pattern of striking black prospective jurors. The
judge noted there were twelve black prospective jurors
among the 58 members of the venire panel. Of the twelve, four
were excused for cause or hardship, leaving eight black
members of the venire panel—three of which were far enough
down the list that it was highly unlikely any of them would
be seated on the jury. That left five black prospective jurors
with a greater likelihood of being seated. Defense counsel had
10 Nos. 20-2167 & 20-2366
used peremptory strikes to exclude each of them. After
hearing the attorneys’ positions on the matter, the district
judge sustained the Batson challenge and overruled the
peremptory strike of Juror No. 14, who was black and seated
on the jury.
During trial, the government presented evidence of the
defendants’ scheme, including the testimony of informants
who worked with Elizondo and Salgado. The government
played Title III intercepts and excerpts of conversations
between Cuba and Elizondo and Davis, which Cuba had
consensually recorded (that is, with one party’s consent) at
the FBI’s direction. In those recordings, Davis discussed the
defendants’ scheme, and Elizondo explained the decision to
inventory the full $15,000 seized from the Maplewood
apartment. Two FBI agents testified they had worked with
Elizondo while he was detailed to the FBI, where grand juries
were empaneled at the beginning of an investigation and
before a confidential source was deployed. At the close of the
nine-day trial, the jury convicted Elizondo and Salgado on all
counts.
At Elizondo and Salgado’s sentencing hearings, the
government objected to the probation department’s loss
calculation, comprised of the $4,200 the defendants
misappropriated during the rental-vehicle ruse, plus the
value of cash and other items taken on other occasions. The
government contended the aggregate intended loss exceeded
$6,500. The district court sustained the government’s
objections and found by a preponderance of the evidence that
the government had shown the intended loss was between
$6,500 and $15,000. Elizondo was sentenced to 87 months’
Nos. 20-2167 & 20-2366 11
imprisonment, and Salgado was sentenced to 71 months’
imprisonment. Both defendants timely appealed.
II.
Section (A) below covers the government’s application for
a Title III order and Elizondo’s motion to suppress the
recordings obtained as a result of that order. In Section (B), we
evaluate defendants’ challenges to the district court’s jury-
selection procedures, including its Batson inquiry. Section (C)
addresses Elizondo’s appeal from the denial of his motion for
a judgment of acquittal on the obstruction charge. Finally,
Section (D) analyzes the defendants’ objections to the district
court’s calculation of the intended loss under the Sentencing
Guidelines.
A. Title III Application and the Motion to Suppress
We begin with Elizondo and Salgado’s challenge to the
legality of the government’s application for a wiretap and the
denial of Elizondo’s motion to the suppress the evidence so
obtained. “[W]e review the district court’s factual findings for
clear error and its conclusions of law de novo.” United States
v. Santiago, 905 F.3d 1013, 1018 (7th Cir. 2018) (citation
omitted).
Title III enumerates a list of offenses that allow the
government to apply for an order to intercept
communications “when such interception may provide or has
provided evidence of” the specified crimes. 18 U.S.C.
§ 2516(1). Narcotics-distribution and wire-fraud offenses are
predicate crimes under Title III, but the crimes with which
Elizondo and Salgado were charged—including conspiracy to
embezzle and steal property, conspiracy to violate
12 Nos. 20-2167 & 20-2366
constitutional rights, and theft of federal funds—are not. See
18 U.S.C. § 2516(1)(c), (e).
A judge may enter an ex parte order for the interception of
communications if (a) there is probable cause to believe the
target is committing or will commit an enumerated offense;
(b) there is probable cause to believe “particular
communications concerning that offense will be obtained
through such interception”; and (c) “normal investigative
procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. § 2518(3)(a)-(c).
Under 18 U.S.C. § 2517(5), communications related to non-
enumerated offenses may be used so long as the government
makes a timely post-interception application to a judge and
the communications are “otherwise intercepted in accordance
with” Title III’s provisions. In United States v. Arnold, this
court stated that “[t]he post-interception application
requirement of § 2517(5)” prevents “subterfuge searches.” 773
F.2d 823, 829 (7th Cir. 1985); see also In re Grand Jury Subpoena
Served on Doe, 889 F.2d 384, 388 (2d Cir. 1989) (same). That is,
18 U.S.C. § 2517(5) prevents the government applicant for a
Title III order from “nam[ing] one crime while in fact he may
have anticipated intercepting evidence of a different crime for
which the prerequisites could not be satisfied.” Arnold, 773
F.2d at 829 (quoting United States v. Marion, 535 F.2d 697, 700–
01 (2d Cir. 1976)); accord United States v. Campagnuolo, 556 F.2d
1209, 1213 (5th Cir. 1977) (same).
By its terms, Title III contains no requirement that the
interception of communications related to non-enumerated
offenses must be inadvertent—taking the government by
surprise—rather than merely incidental. See United States v.
Nos. 20-2167 & 20-2366 13
Goffer, 721 F.3d 113, 122–23 (2d Cir. 2013); United States v.
Rajaratnam, No. 09-CR-1184-RJH, 2010 WL 4867402, at *5
(S.D.N.Y. Nov. 24, 2010), aff’d, 719 F.3d 139 (2d Cir. 2013). Title
III’s failure to require inadvertent interception as a
prerequisite to the later use of communications relating to
non-enumerated offenses is significant, as “absent
provision[s] cannot be supplied by the courts.” ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 94 (2012); Rotkiske v. Klemm,
140 S. Ct. 355, 360–61 (2019). Rather, given the lack of
statutory language to the contrary, the government may use
communications intercepted incidentally upon a proper post-
interception application. And “[e]vidence of crimes other
than those authorized in a wiretap warrant are intercepted
‘incidentally’ when they are the by-product of a bona fide
investigation of crimes specified in a valid warrant.” United
States v. McKinnon, 721 F.2d 19, 23 (1st Cir. 1983).
Here, we agree with the district court that the government
did not engage in a subterfuge search because it was
forthright in its application for a wiretap. The government
described the scope of its investigation when it applied for a
Title III order, and it did not conceal anything material. Thus,
the wiretap was not a subterfuge search, and the
communications at issue were “otherwise intercepted in
accordance with” Title III. 18 U.S.C. § 2517(5).
In applying for the Title III order to intercept Elizondo’s
communications, the government detailed its investigation as
follows:
[t]he FBI is investigating allegations that CPD
officers … including ELIZONDO and
SALGADO, are engaged in a corrupt scheme to:
14 Nos. 20-2167 & 20-2366
(1) steal and embezzle evidence—namely,
narcotics and money—recovered during
searches conducted pursuant to their duties as
sworn law enforcement officers; and (2) provide
false information to judges in support of search
warrants as a means to fraudulently obtain
property.
Although the government explained it anticipated
intercepting communications that would constitute evidence
of drug trafficking and wire fraud, it did not limit its
investigation to those offenses. Rather, the government
described the contours of the criminal scheme it was probing
and applied for a wiretap to uncover additional evidence of
that scheme. The Chief Judge was not misled into granting the
application for a wiretap order.
Several of the crimes with which the defendants were
charged—conspiracy to embezzle and steal property,
conspiracy to violate Fourth Amendment rights, and theft of
federal funds—are offenses for which it is foreseeable that the
investigation the government described in its initial wiretap
application would yield evidence. Title III does not prohibit
the use of incidentally-obtained wiretap evidence to
prosecute those offenses, as a suspect is not “insulated from
evidence of one of his illegal activities gathered during the
course of a bona fide investigation of another of his illegal
activities merely because law enforcement agents are aware
of his diversified criminal portfolio.” McKinnon, 721 F.2d at
23.
The wiretap ultimately revealed evidence related to
crimes Elizondo and Salgado committed in connection with
the cover-up of the underlying embezzlement offenses.
Nos. 20-2167 & 20-2366 15
Likewise, the interception of such evidence was incidental
and not a subterfuge because Elizondo and Salgado have not
shown that collecting evidence related to the cover-up
offenses was the government’s true objective in applying for
a wiretap. See McKinnon, 721 F.2d at 22–23; Arnold, 773 F.2d at
829. Instead, the record establishes that the government
sought to use the wiretap to uncover evidence that the
defendants were engaged in the illegal distribution of
narcotics.
Although Elizondo and Salgado contend otherwise, there
was probable cause to believe the wiretap would intercept
communications proving that they were violating Title III-
predicate narcotics offenses. In conversations that the FBI
consensually recorded before it obtained the initial Title III
order—and that were recounted in the government’s initial
application—Elizondo described giving informants a cut of
the drugs and cash that he and other CPD officers obtained
during searches for which those informants provided tips.
According to Agent Recca’s affidavit, Elizondo explained he
had to inventory the $15,000 in cash recovered during the
December 20, 2017 search because the security cameras had
recorded the officers.
We conclude the government has shown that the rental-
vehicle ruse was designed in part to elicit further and more
conclusive evidence of drug-trafficking activity than the
evidence the government had at its disposal when it applied
for the initial Title III order. At the FBI’s direction, Cuba told
Elizondo that the rental vehicle contained narcotics, and
Elizondo later confirmed that was his understanding in a
recorded call. It was foreseeable that the ruse could have led
Elizondo to make unambiguous statements about his plan to
16 Nos. 20-2167 & 20-2366
distribute drugs. That the wiretap did not record Elizondo
making such statements has little bearing on our inquiry in
this context.
Elizondo and Salgado argue the government could have
designed other sting operations to elicit stronger evidence of
their drug-trafficking activity, but we are not persuaded. The
the government could have used alternative investigative
techniques, but that is not sufficient to show the Title III
application was an improper subterfuge search. Moreover,
Agent Recca’s affidavit explained that the use of sham
narcotics would create a significant risk to the government’s
objectives: if Elizondo or others were to field test those
narcotics, they would likely deduce a sting operation was in
progress and therefore take further steps to avoid detection.
We find no error in the government’s application for a
Title III wiretap order or the district court’s application of the
law to the facts Elizondo adduced. So, we affirm the denial of
his motion to suppress the fruits of that wiretap.
B. Jury Selection and the Batson Inquiry
We turn next to defendants’ assertions that the district
court erred during jury selection. They advance two related
contentions: first, that the district court improperly shifted the
burden applicable to Batson challenges, and second, that the
jury-selection proceedings were unreasonably rushed. We
examine the Batson issue first.
Before addressing the district court’s Batson inquiry, we
recognize the parties’ dispute over the applicable standard of
review on this question. The defendants ask for de novo
review of the district court’s Batson procedure, and the
government argues for plain error review because the
Nos. 20-2167 & 20-2366 17
defendants did not object to that procedure. Although the
defendants argue they were not required to formally object
under Federal Rule of Criminal Procedure 51, their
contentions before that court went to the merits of the Batson
analysis rather than to how it proceeded. That would counsel
reviewing the district court’s Batson inquiry for plain error.
See United States v. Heron, 721 F.3d 896, 901–02 (7th Cir. 2013)
(where a defendant fails to alert the trial court of the specific
grounds for an objection under Batson, our review is only for
plain error); accord United States v. Gooch, 665 F.3d 1318, 1330–
32 (D.C. Cir. 2012) (discussing the application of plain error
review where Batson objections are not properly raised with
the district court).
Even if we were to conclude otherwise, though, we would
still review the district court’s Batson findings for clear error
and owe great deference to its credibility determinations. See
United States v. Lovies, 16 F.4th 493, 500 (7th Cir. 2021) (citing
United States v. Cruse, 805 F.3d 795, 806 (7th Cir. 2015); United
States v. Rutledge, 648 F.3d 555, 558 (7th Cir. 2011)). “Deference
is necessary because a reviewing court, which analyzes only
the transcripts from voir dire, is not as well positioned as the
trial court to make credibility determinations.” Rutledge, 648
F.3d at 558 (quoting Miller-El v. Cockrell, 537 U.S. 322, 339
(2003)). Accordingly, we will affirm unless we “arrive at a
definite and firm conviction that a mistake has been made.”
Cruse, 805 F.3d at 806.
A Batson challenge requires the opponent of a peremptory
strike to show that the strike’s proponent acted with a racially
discriminatory intent. Lovies, 16 F.4th at 499 (citing Cruse, 805
F.3d at 806). A challenge proceeds in three steps. At the first
step, the challenger must make a prima facie case that the
18 Nos. 20-2167 & 20-2366
peremptory strike was racially motivated. Cruse, 805 F.3d at
806 (citing Snyder v. Louisiana, 552 U.S. 472, 476 (2008)). This
low burden requires “only circumstances raising a suspicion
that discrimination occurred.” Id. at 807 (quoting United States
v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005) (“Stephens I”)). If
the challenger meets his burden at step one, the second step
requires the strike’s proponent to articulate a non-
discriminatory reason for the strike. United States v. Stephens,
514 F.3d 703, 710 (7th Cir. 2008) (“Stephens II”). The district
court does not consider the persuasiveness of the justification
for the peremptory strike at step two. Id. (citing Purkett v. Elem,
514 U.S. 765, 767–68 (1995)); see also Lovies, 16 F.4th at 500.
At the third and final step, the trial court determines
“whether the opponent of the strike has carried his burden of
proving purposeful discrimination.” Cruse, 805 F.3d at 807
(quoting Johnson v. California, 545 U.S. 162, 171 (2005)).
Because the relevant question at step three is whether a strike
was racially motivated, a trial judge must “assess the
honesty—not the accuracy—of a proffered race-neutral
explanation.” Id. at 808 (quoting Lamon v. Boatwright, 467 F.3d
1097, 1101 (7th Cir. 2006)) (emphasis in original). “The trial
court may consider all relevant circumstances when assessing
the honesty of a proffered explanation for a peremptory
strike, including interpreting the demeanor of the attorney
who initiates the strike and evaluating the explanation’s
plausibility with reference to its basis in accepted trial
strategy.” Lovies, 16 F.4th at 500 (internal quotation marks and
citations omitted).
The district court’s application of Batson here met the
requirements of that case and its successors. Although the
trial judge’s decision to sua sponte raise the Batson challenge
Nos. 20-2167 & 20-2366 19
was unorthodox—a point to which we return later—
defendants have not directed us to a cognizable legal error in
the district court’s application of the Batson framework. The
district court followed each of the applicable steps and
determined, at the third and final step, that the reason
Elizondo’s attorney offered for striking Juror No. 14 was a
pretext for racial discrimination. Given the deference we owe
to the trial judge’s determinations, we cannot conclude that a
mistake has been made, so we affirm the trial court’s decision
to sustain its own Batson challenge. Further, any error in
sustaining the challenge was harmless because Elizondo and
Salgado do not contest Juror No. 14’s impartiality.
During voir dire, the trial judge observed that five of
Elizondo’s seven peremptory strikes were to black members
of the venire panel. Of the five black prospective jurors
remaining under consideration, Elizondo exercised his
peremptory challenges against each one. This was enough to
meet the low burden at Batson step one. See Stephens I, 421 F.3d
at 512; United States v. McMath, 559 F.3d 657, 664 (7th Cir.
2009). It constituted a “pattern of strikes” that gave rise to “an
inference of intentional discrimination.” Anderson v. Cowan,
227 F.3d 893, 901–02 (7th Cir. 2000); see also Batson v. Kentucky,
476 U.S. 79, 96–97 (1986).
We understand the defendants to argue the district court
sustained the Batson challenge at step two, impermissibly
shifting the burden to defense counsel and finding that they
failed to offer a race-neutral reason for striking the potential
jurors. But their assertion is not supported by the record.
The reason that defense counsel gave for striking Juror No.
14 was that juror had prior negative experiences with law-
enforcement officers. Under case law, that was a sufficient
20 Nos. 20-2167 & 20-2366
race-neutral reason to meet the requirements of step two. See
Stephens II, 514 F.3d at 710–11 (a reason need only be race
neutral, not necessarily persuasive in any way, to pass step
two). Although we encourage district courts to carefully
delineate between each Batson step, Lovies, 16 F.4th at 503–04,
there is no rigid requirement that a trial judge declare on the
record that step two has been satisfied before proceeding to
step three. Nor do Elizondo and Salgado cite any authority to
support such a proposition.
On the third and final step, the district court’s procedure
also was adequate. The court asked defense counsel to
differentiate Juror No. 14 from two of the non-stricken white
members of the venire panel who discussed similar negative
experiences with law enforcement. As the government urges,
defense counsel was so prompted because the race-neutral
explanation for striking Juror No. 14 was initially found not
to be credible. But the defense was then offered another
opportunity to bolster its explanation for the strike. At this
point, the trial judge was tasked with deciding whether the
burden of proving purposeful discrimination had been
carried, considering the persuasiveness of the justification
that counsel provided, whether that justification had any
basis in accepted trial strategy, and the attorney’s demeanor.
See Cruse, 805 F.3d at 807; Lovies, 16 F.4th at 500.
The judge determined that the differences between Juror
No. 14 and the non-stricken white jurors were pretextual. He
explained, “I don’t think you’ve justified the difference
between [Juror No. 14] and other similarly situated people. I
think the challenge has been exercised because of the person’s
race.” In applying step three of the Batson inquiry, the district
Nos. 20-2167 & 20-2366 21
court evaluated the justification for the strike, finding it
lacking and pretextual.
The trial court’s application of the Batson framework was
not erroneous. A trial court may infer discriminatory intent
where it determines the proffered justification for a
peremptory strike is pretextual. Cruse, 805 F.3d at 807 (citing
Snyder, 552 U.S. at 485). “If [the strike proponent’s] proffered
reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is
evidence tending to prove purposeful discrimination to be
considered at Batson’s third step.” United States v. Taylor, 636
F.3d 901, 905 (7th Cir. 2011) (“Taylor III”) (quoting Miller-El v.
Dretke, 545 U.S. 231, 241 (2005)). As arbiter of the Batson
challenge, the trial judge concluded the reason offered for
striking Juror No. 14—that juror’s negative experience with
police officers—applied just as well to otherwise-similar
white panelists who were permitted to serve on the jury. After
finding pretext, the judge concluded that the burden of
proving purposeful discrimination had been carried and
sustained the challenge. That was a proper application of
Batson’s framework.
A district court’s finding of pretext is reviewed for clear
error, and we cannot reach a definite and firm conviction that
a mistake has been made on this factual record. See Cruse, 805
F.3d at 806; United States v. Hunter, 932 F.3d 610, 617 (7th Cir.
2019). So, we affirm the district court’s decision to sustain the
Batson challenge.
Elizondo and Salgado also argue the district court erred
by rushing jury selection. They contend that the flaws in the
district court’s Batson procedures and the hurried voir dire
22 Nos. 20-2167 & 20-2366
process, individually and combined, created structural error
that entitles them to a new trial.
We disagree on both counts and conclude that any error
was harmless. First, we see no basis for the assertion that jury
selection was unreasonably rushed. The process lasted an
entire day, and the district court thoroughly questioned jurors
to ensure they were fair, impartial, and qualified to serve. A
trial court does not err when it requires attorneys to make
peremptory strikes and explain them in a timely fashion.
Next, the defendants’ allegation of structural error in the
district court’s Batson analysis is foreclosed by Rivera v.
Illinois, 556 U.S. 148 (2009). Rejecting a contention similar to
the one here, the Supreme Court reasoned that the only right
at stake is the defendant’s right to a fair trial before an
impartial jury. See id. at 157–58. The mistaken denial of a
peremptory challenge does not itself violate a defendant’s
constitutional rights. See id. at 158, 160.
This court and other circuits have held that under Rivera,
harmless-error analysis applies to claims of an allegedly
erroneous denial of a peremptory challenge. Jimenez v. City of
Chicago, 732 F.3d 710, 714–16 (7th Cir. 2013); accord United
States v. Bowles, 751 F.3d 35, 38–39 (1st Cir. 2014); United States
v. Williams, 731 F.3d 1222, 1236–37 (11th Cir. 2013). The error
is harmless if the party whose peremptory strike was
overruled cannot show that the juror seated as a result of that
ruling was biased. See Jimenez, 732 F.3d at 714–16.
Elizondo and Salgado do not argue Juror No. 14 was
biased against them. Because they do not challenge the
impartiality of this or any other juror, any error was harmless.
The defendants point to the Sixth Circuit’s decisions in United
Nos. 20-2167 & 20-2366 23
States v. McFerron, 163 F.3d 952 (6th Cir. 1998), and United
States v. Kimbrel, 532 F.3d 461 (6th Cir. 2008), which held that
the erroneous denials of peremptory challenges in those cases
were structural errors. But these out-of-circuit cases predate
Rivera and do not bind us. The facts in McFerron and Kimbrel
also diverge from the facts here in an important way. In those
cases, the district courts incorrectly stated that the
defendants—the proponents of peremptory strikes—had the
burden of persuasion at Batson step three. See McFerron, 163
F.3d at 953–54; Kimbrel, 532 F.3d at 467. In contrast, the district
judge here did not state that the defense had the burden of
persuasion at Batson step three. So McFerron and Kimbrel are
not applicable.
Nor is this case like United States v. Harbin, 250 F.3d 532(7th Cir. 2001), on which the defendants ask us to rely. In
Harbin, the government—but not the defendant—was
permitted to exercise a peremptory challenge on the sixth day
of an eight-day trial. Id. at 547. This court reversed the district
court and vacated the defendants’ convictions, concluding
that structural error required reversal because the district
court’s procedure “gave the prosecutor unilateral,
discretionary control over the composition of the jury mid-
trial.” Id. Here, though, the parties had equal opportunities to
exercise their peremptory strikes, which occurred before trial,
so Harbin does not suggest structural error in this case.
We take this opportunity to emphasize that district courts
should take great care before raising a Batson challenge sua
sponte. In Doe v. Burnham, 6 F.3d 476 (7th Cir. 1993), we stated
that “a court should at least wait for an objection before
intervening in the process of jury selection to set aside a
peremptory challenge.” Id. at 481. Similarly, this court has
24 Nos. 20-2167 & 20-2366
observed that the jury-selection process “is still an adversarial
one and the case law, including Batson and the cases that
followed it, make it clear that Batson issues must be raised.
Batson is not self-executing.” Aki-Khuam v. Davis, 339 F.3d 521,
527 (7th Cir. 2003) (internal quotation marks and citation
omitted).
Elizondo and Salgado concede that district courts have
authority to raise a Batson challenge sua sponte. We agree. The
Supreme Court has held that when a trial court excuses jurors
from service because of their race, state action is present
“[r]egardless of who precipitated the jurors’ removal.”
Georgia v. McCollum, 505 U.S. 42, 53 (1992). This is so because
“[b]y enforcing a discriminatory peremptory challenge, the
court has not only made itself a party to the [biased act], but
has elected to place its power, property and prestige behind
the [alleged] discrimination.” Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 624 (1991) (internal quotation marks and
citations omitted). Because racially discriminatory
peremptory strikes constitute state action regardless of who
initiates them—and because we have not located contrary
authority—we conclude that federal trial judges have the
authority to raise Batson challenges to protect “the integrity of
the judicial system.” Id. at 628.
Nevertheless, we reiterate that the best practice is for a
district court to wait for an objection under Batson rather than
to raise an objection on its own. “Judges should invade a
party’s discretion to strike potential jurors only in narrow
circumstances.” Doe, 6 F.3d at 481; accord Bowles, 751 F.3d at
38 n.1 (“[A] trial judge should rarely engage sua sponte in a
Batson enquiry absent surrounding circumstances, identified
by the court on the record, that are strongly suggestive of
Nos. 20-2167 & 20-2366 25
discrimination.”). When a district judge infers that the jury-
selection process may indicate racial or gender-based1
discrimination, the judge may initiate a bench conference and
invite one of the attorneys to raise a challenge under Batson if
the attorney wishes to do so.
If a district judge decides to raise Batson sua sponte, the
judge must take care to ensure that the burden is not shifted
to a peremptory strike’s proponent. The trial judge must
meticulously separate the role of Batson challenger from the
role of neutral arbiter of the challenge. In particular, a judge
should be careful not to automatically accept his or her own
rationale at Batson step one. A heightened risk of a judge
reflexively finding a prima facie case of discrimination at step
one is present where the judge articulates the reasoning
behind the challenge and then must also evaluate that same
rationale. The proponent of a peremptory strike remains
entitled to a neutral assessment of the proffered prima facie
case of discrimination and the possibility that that case may
be rejected if it is insufficient. See Bennett v. Gaetz, 592 F.3d 786,
791 (7th Cir. 2010); Johnson v. California, 545 U.S. at 170(observing that the first step under Batson requires the
challenger to present “evidence sufficient to permit the trial
judge to draw an inference that discrimination has
occurred”).
C. Obstruction Charge and Sufficiency of the Evidence
Next, we turn to Elizondo’s challenge to the sufficiency of
the evidence on Count Four, the obstruction charge. He
moved for acquittal as a matter of law under Federal Rule of
1 In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Supreme Court
extended the Batson framework to gender-based discrimination.
26 Nos. 20-2167 & 20-2366
Criminal Procedure 29(c), arguing there was insufficient
evidence from which to infer that he foresaw a particular
official proceeding when he instructed Salgado to destroy or
conceal evidence. Rejecting his argument, the district court
denied Elizondo’s motion, which he renews on appeal.
We review the denial of a Rule 29 motion de novo and ask
whether, after viewing the evidence in the light most
favorable to the government, “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
see also United States v. Torres-Chavez, 744 F.3d 988, 993 (7th
Cir. 2014) (quoting Jackson, 443 U.S. at 319). “[D]eference to
the jury’s deliberations prevents us from assessing the quality
of the evidence.” United States v. Godinez, 7 F.4th 628, 638 (7th
Cir. 2021). “We respect the exclusive function of the jury to
determine the credibility of witnesses, resolve evidentiary
conflicts, and draw reasonable inferences.” Id. at 638–39
(citation omitted). Accordingly, when reviewing a
defendant’s appeal of the denial of his Rule 29 motion, we
“draw all reasonable inferences in the light most favorable to
the prosecution.” United States v. Niggemann, 881 F.3d 976, 980
(7th Cir. 2018); see also United States v. Coscia, 866 F.3d 782, 795
(7th Cir. 2017).
A defendant challenging a jury verdict under Rule 29
“faces a nearly insurmountable hurdle” because the court
views the evidence in the light most favorable to the
government and defers to the jury’s credibility
determinations. Torres-Chavez, 744 F.3d at 993 (citing United
States v. Blassingame, 197 F.3d 271, 284 (7th Cir. 1999)). We will
“overturn the jury’s verdict only when the record contains no
evidence, regardless of how it is weighed, from which the
Nos. 20-2167 & 20-2366 27
[factfinder] could find guilt beyond a reasonable doubt.”
United States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018)
(internal quotation marks and citations omitted).
Under the federal obstruction statute, anyone who
“corruptly (1) alters, destroys, mutilates, or conceals a record,
document, or other object, or attempts to do so, with the intent
to impair the object’s integrity or availability for use in an
official proceeding; or (2) otherwise obstructs, influences, or
impedes any official proceeding, or attempts to do so”
obstructs justice. 18 U.S.C. § 1512(c). To be convicted of
obstruction under § 1512(c)(1), a defendant “must believe that
his acts will be likely to affect a pending or foreseeable
proceeding.” United States v. Matthews, 505 F.3d 698, 708 (7th
Cir. 2007) (citing Arthur Andersen LLP v. United States, 544 U.S.
696, 707 (2005)); accord United States v. Kaplan, 490 F.3d 110,
125 (2d Cir. 2007) (same).
Count Four charged Elizondo under 18 U.S.C.
§ 1512(b)(2)(B) with “corruptly persuad[ing]” Salgado with
intent to “cause or induce” him to “alter, destroy, mutilate, or
conceal an object with intent to impair the object’s integrity or
availability for use in an official proceeding.” 18 U.S.C.
§ 1512(b). The same standard for foreseeability that governs
corruption charges under 18 U.S.C. § 1512(c)(1)—a defendant
must believe his acts will be likely to affect a pending or
foreseeable proceeding—applies to Elizondo’s charge
pursuant to 18 U.S.C. § 1512(b)(2)(B). See Matthews, 505 F.3d
at 708. No party contends that a different standard applies.
Audio recordings and trial testimony provided ample
evidence to support the jury’s verdict on the obstruction
charge. Elizondo and Salgado’s conversation immediately
after the rental vehicle was towed strongly suggests an intent
28 Nos. 20-2167 & 20-2366
to destroy or conceal evidence. Salgado told Elizondo that the
CPD’s Internal Affairs Division had towed the car. Without
missing a beat, Elizondo instructed Salgado to “[j]ust relocate
everything.” This evidence shows Elizondo knew an
investigation into his practices was ongoing, and he
attempted to obstruct that investigation.
The question Elizondo raises on appeal is whether—at the
point he instructed Salgado—he knew or foresaw that a
federal grand-jury proceeding was ongoing. Notably, two FBI
special agents testified at trial that they worked with Elizondo
at the FBI, during which time grand juries were empaneled at
the beginning of an investigation. So, the jury heard testimony
that Elizondo would have known, based on his prior
experience, that the FBI’s deployment of a confidential source
indicated a grand-jury proceeding had been opened.
Evidence the government presented at trial provides the
necessary link between testimony about Elizondo’s
knowledge of FBI procedures and his intent when instructing
Salgado to destroy or conceal evidence. Officer Karczewski
testified that Elizondo told him the FBI was involved in the
rental-vehicle incident. This conversation occurred only about
20 minutes after Elizondo gave his last recorded instruction
for Salgado to destroy evidence. Later that night, Elizondo
also told Officer Jose Lopez that Cuba was “[o]bviously …
working with the feds” and that task force officer Moore was
affiliated with the FBI.
As the government argues, nothing in the record suggests
that Elizondo learned anything material between the time he
instructed Salgado to destroy or conceal evidence and the
times he stated his knowledge or belief that the FBI was
involved in the investigation of his activities. Although
Nos. 20-2167 & 20-2366 29
Elizondo disagrees, he has not identified what he could have
learned between instructing Salgado and speaking with
Karczewski and Lopez that would have led to his conclusion
the FBI was investigating him.
Evidence presented at trial supported each step in the
inferential chain, so the jury could conclude that Elizondo
foresaw a federal grand-jury proceeding when he instructed
Salgado to destroy or conceal evidence. It was reasonable for
the jury to infer that Elizondo’s knowledge of the FBI’s
involvement arose from his previous experience as an FBI
task force officer. The jury also could have reasonably inferred
that Elizondo knew the FBI’s use of a confidential source—
and thus a federal grand-jury proceeding—were involved in
the investigation at the time he instructed Salgado to destroy
evidence. Drawing reasonable inferences and weighing
evidence is the jury’s province, so we affirm the denial of
Elizondo’s Rule 29 motion. See Godinez, 7 F.4th at 638–39, 642.
Even if we were to agree with Elizondo that the jury could
not have reasonably inferred that he knew or suspected a
federal grand-jury proceeding was in progress at the time he
instructed Salgado, we would still affirm the denial of his
motion for a judgment of acquittal. The obstruction statute
does not require Elizondo to have had knowledge or a belief
that a federal proceeding was pending when he told Salgado
to destroy or conceal evidence.
Title 18 U.S.C. § 1512(f)(1) states, “[f]or the purposes of
this section--an official proceeding need not be pending or
about to be instituted at the time of the offense.” Accordingly,
the government must prove that a defendant believed his acts
would “be likely to affect a pending or foreseeable
proceeding.” Matthews, 505 F.3d at 708; cf. also United States v.
30 Nos. 20-2167 & 20-2366
Pugh, 945 F.3d 9, 22 (2d Cir. 2019) (§ 1512’s “nexus
requirement” is satisfied—and a federal grand-jury
proceeding is foreseeable—when the defendant is aware he is
the “target of an investigation”). The jury may not have
concluded that Elizondo knew that there was an ongoing
federal grand-jury proceeding when he instructed Salgado to
destroy or conceal evidence. Rather, the jury may have
determined that Elizondo believed a federal grand jury might
be empaneled in the future and acted with the intent to
prevent or impair such a proceeding. Nevertheless, the jury
properly convicted him under the obstruction statute.
We expanded on § 1512’s requirement of a foreseeable
official proceeding in United States v. Johnson, 655 F.3d 594 (7th
Cir. 2011). Scott Johnson was a large-scale cocaine dealer, and
law-enforcement agents obtained search warrants and
attempted to search his residence. Id. at 598–99. Johnson’s
girlfriend, Lisa Lamb, prevented the agents from entering the
residence and disposed of large amounts of cocaine base
before they could enter. Id. at 599. Lamb was charged with
and convicted of obstructing justice under 18 U.S.C.
§ 1512(c)(1). Id. at 602–03. On appeal, she argued there was
insufficient evidence to prove she believed her actions would
affect a foreseeable official proceeding. Id. at 605.
In affirming, this court rejected the argument “that the
government needed to prove that Lamb knew that her conduct
would affect a particular official proceeding.” Id. at 606. Given
the language of 18 U.S.C. § 1512(f)(1), the government
“simply needed to provide enough evidence that Lamb
foresaw that the contraband might be used in an official
proceeding and destroyed it with the intent of preventing that
Nos. 20-2167 & 20-2366 31
use.” Id. Because the evidence adduced at trial met that
standard, the obstruction conviction stood. See id. at 606–07.
As in Johnson, here the government needed to present
enough evidence that Elizondo foresaw that the items he
instructed Salgado to destroy or conceal might be used in an
official proceeding and that Elizondo instructed Salgado with
the intent of preventing such use. The evidence—which
established Elizondo’s knowledge of federal grand-jury
practices and his belief that the FBI was investigating him
about 20 minutes after he last instructed Salgado—was more
than adequate to permit such a conclusion.
Johnson does not require that Elizondo knew or even
believed federal grand-jury proceedings were in progress
when he gave Salgado the instruction. Although Elizondo
argued that he ordered the destruction or concealment of
evidence solely in anticipation of an internal CPD or state-
level investigation, the jury “was not required, however, to
accept [Elizondo’s] version of events.” Id. at 607. We therefore
affirm Elizondo’s conviction for obstruction on Count Four.
D. Loss Calculation
The final issue for our consideration is the calculation of
the intended loss for purposes of sentencing. At Elizondo and
Salgado’s sentencing hearings, the district court determined
that the intended loss under U.S.S.G. § 2B1.1 was at least
$6,500 but less than $15,000, which resulted in a two-level
increase to each defendant’s offense level. Defendants argue
the district court’s calculation was erroneous because it
incorporated a portion of the $15,000 that government agents
placed in the Maplewood apartment, which Elizondo and
Salgado did not physically attempt to misappropriate. They
32 Nos. 20-2167 & 20-2366
contend the intended loss is only complete at the time money
is taken, and they did not take any of the $15,000 despite
having the opportunity to do so.
We review a district court’s calculation of the intended loss
under U.S.S.G. § 2B1.1 for clear error. United States v. Blake,
965 F.3d 554, 558 (7th Cir. 2020). Under this standard of
review, we will reverse “only if we are left with the definite
and firm conviction that a mistake was made.” Id. (quoting
United States v. Brown, 880 F.3d 399, 409 (7th Cir. 2018)). To
successfully appeal a district court’s loss calculation, the
defendant must show “that the district court’s calculation was
not only inaccurate but outside the realm of permissible
computations.” United States v. Riley, 493 F.3d 803, 810 (7th
Cir. 2007) (citations omitted).
Commentary to § 2B1.1 clarifies that “‘[i]ntended loss’ (I)
means the pecuniary harm that the defendant purposely
sought to inflict; and (II) includes intended pecuniary harm
that would have been impossible or unlikely to occur (e.g., as
in a government sting operation, or an insurance fraud in
which the claim exceeded the insured value).” U.S.S.G.
§ 2B1.1 App. Note 3(A)(ii). When a district court calculates the
intended loss attributable to a defendant’s conduct, it asks
how many dollars the culprits’ scheme put at risk. United
States v. Bonanno, 146 F.3d 502, 509–10 (7th Cir. 1998).
“Logically, intended loss must include both the amount the
victim actually lost and any additional amount that the
perpetrator intended the victim to lose.” United States v.
Mickens, 453 F.3d 668, 672–73 (6th Cir. 2006) (quoting United
States v. Carboni, 204 F.3d 39, 47 (2d Cir. 2000)). That is, § 2B1.1
holds a defendant accountable “for the full amount of the loss
Nos. 20-2167 & 20-2366 33
he was prepared to inflict.” United States v. Strozier, 981 F.2d
281, 285 (7th Cir. 1992).
Moreover, this court has rejected the argument that the
amount of money a defendant intended a victim to lose
cannot be included merely because the defendant has not
completed the final step to expropriate funds. In Strozier, for
instance, we refused to accept the defendant’s argument that
the intended loss attributable to his scheme was only the
$36,000 he withdrew from a bank account rather than the full
$405,000 he fraudulently deposited in that account. Id. at 283–
85. We reasoned that the facts in that case supported the
district court’s conclusion that the defendant intended to
spend the full $405,000 he deposited. Id.; accord United States
v. Sykes, 357 F.3d 672, 675 (7th Cir. 2004) (adopting Strozier’s
holding and reasoning); United States v. Torres, 209 F.3d 308,
311–12 (3d Cir. 2000) (same).
In concluding that the $6,500 threshold for the total
intended loss was met, the district court found it was
“overwhelmingly likely” that defendants intended to steal at
least $3,000, or 20 percent, of the cash recovered from the
apartment. The record supports the district court’s finding by
at least a preponderance of the evidence.
Inculpatory evidence was presented of the defendants’
intent as to the cash at the apartment. The jury heard
testimony that Elizondo and Salgado intended to steal funds
from the Maplewood apartment. And the government played
a recording at trial of Elizondo stating he did not take any of
the cash recovered from the apartment solely because security
cameras were located there. The district court saw and
evaluated this evidence and concluded “it was clearly shown
that there was an intention to take some of that money had
34 Nos. 20-2167 & 20-2366
they not discovered the video cameras.” The trial court
reasonably inferred, based on the details of the defendants’
scheme, that they intended to take at least $2,300 of the
$15,000.
At oral argument, Salgado’s counsel disputed this finding,
contending that the defendants did not intend to steal money
recovered from the apartment regardless of whether they
discovered the cameras. This is shown by their decision to
continue working with Cuba after he led them to an
apartment equipped with surveillance cameras. 2 But that
contention ignores the government’s explanation for the
defendants’ decision to inventory the full $15,000, which is
that they believed the cameras belonged to the drug dealers
whose home they were purportedly raiding. Accepting that
explanation—as the district court was entitled to do, and to
which we must defer—it follows that Elizondo and Salgado
would have abandoned their plan to steal money from a
house where they believed drug dealers had recorded them.
Importantly, the defendants have not offered an
alternative theory to explain Elizondo’s statement that it
would have been “a good Christmas for everybody” if the
officers had not discovered the cameras in the apartment.
Even if such a theory had been offered, no evidence of any
benign explanation was presented at either sentencing
hearing. To the contrary, Cuba’s testimony was that he
understood Elizondo’s statement to mean the officers would
have stolen some of the money and distributed a portion of
those proceeds to their informants. We “refuse to overturn the
district court’s sentence on the basis of speculation in the
2 Oral Argument at 15:55, 18:00.
Nos. 20-2167 & 20-2366 35
valley of dreams.” Strozier, 981 F.2d at 285. There was no clear
error in the district court’s factual finding that the
government showed, by at least a preponderance of the
evidence, that defendants intended to steal a portion of the
cash at the Maplewood apartment.
Under the deferential standard of review that applies to a
trial court’s loss calculation, Elizondo and Salgado’s
argument must be rejected. Because the district court’s factual
findings were not clearly erroneous, it was entitled to account
for the value of the funds that Elizondo and Salgado placed at
risk by traveling to the Maplewood apartment and searching
it with the intent to expropriate some of the cash that was
placed there. Elizondo and Salgado’s decision to abandon
their plan once they discovered cameras in the apartment is
not dispositive.
* * *
For these reasons, we AFFIRM Elizondo and Salgado’s
convictions and their sentences.