United States v. Mauricio Marchan , 935 F.3d 540 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-2758
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICIO MARCHAN,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 CR 00005-2 — Gary Feinerman, Judge.
ARGUED MAY 16, 2019 — DECIDED AUGUST 13, 2019
Before BAUER, HAMILTON, and ST. EVE, Circuit Judges.
BAUER, Circuit Judge. Following a jury trial, Mauricio
Marchan was convicted of one count of possession with intent
to distribute 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and one count of distribution of 500
grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1).
2 No. 18-2758
Marchan appeals his conviction arguing that the trial proceed-
ings were replete with errors and, as a result, he was denied a
fundamentally fair trial. After considering the events at trial,
we believe that the district court judge diligently presided over
the trial, but to the extent any errors were made, they were
harmless. Accordingly, we affirm.
I. BACKGROUND
In the early evening of January 4, 2017, Pedro Chavelas, a
government informant, met with Victor Ramirez, who had
agreed to facilitate Chavelas’s purchase of two kilograms of
cocaine. The two met in a Target parking lot in Chicago’s
Archer Heights neighborhood. After a brief recorded discus-
sion, Ramirez and Chavelas met with Marchan who informed
them the cocaine was with “[t]he guy in the little white car.”
After Chavelas confirmed that the cocaine was present, agents
moved in.
Marchan, Ramirez, and the “guy in the little white car”
(“Moreno”), were arrested. Agents searched the white car and
recovered a kilogram of cocaine. Agents also seized cell phones
from Marchan, Ramirez, and Moreno. An examination of
telephone records showed multiple calls between Ramirez and
Marchan and Marchan and Moreno leading up to their arrest.
On September 14, 2017, a grand jury returned a supersed-
ing indictment charging Marchan with one count of possession
with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of
distribution of 500 grams or more of cocaine, in violation of 21
U.S.C. § 841(a)(1). On March 5, 2018, his jury trial began.
No. 18-2758 3
Before trial the government submitted a Santiago proffer
purporting to show a conspiracy to distribute cocaine. In his
objection Marchan pointed out that, under this circuit’s
precedent, a single narcotics transaction, where only a buyer-
seller relationship exists, is not enough to establish a conspir-
acy. See United States v. Johnson, 592 F.3d 749, 754 (7th Cir.
2010). Thereafter the government withdrew its proffer after
deciding not to call Ramirez, upon whose testimony the proffer
was largely based.
At trial the government produced a multitude of witnesses:
Special Agent Billy Conrad (“SA Conrad”), who testified about
some of the surveillance conducted during the operation;
Dr. Catalina Johnson (the “Translator”), who translated the
Spanish language audio made by Chavelas’s hidden recording
device; Task Force Officer Francisco Gomez (“TFO Gomez”),
who discussed the pending transaction with Chavelas and
monitored the transaction as it occurred; and the Investigations
Case Agent Owen Putman (“Agent Putman”), who testified
about how Chavelas came to be a government informant and
the cooperation agreement.
When Chavelas was called to testify he spoke about his
cooperation agreement with the government, the government’s
promise to recommend a sentence reduction, his status as an
illegal alien, and the government’s protection against deporta-
tion. When Chavelas testified about the transaction, he de-
scribed his participation in the arrest of Ramirez, Marchan, and
Moreno. He also walked the court through the surveillance
video and the recorded conversations. On cross-examination,
Chavelas admitted that he had only heard the audio recording
4 No. 18-2758
three times and not until over a year after they were made. He
also stated that he heard phrases that were not transcribed.
Next, the government called Special Agent Adam Stachecki
(“SA Stachecki”), who was one of the arresting officers, to
identify Marchan. SA Stachecki also testified that he personally
recovered the cocaine from the white car. Next, Group Super-
visor Colin Dickey (“Supervisor Dickey”), testified that he
observed the surveillance operation and on cross-examination
discussed the importance of searching an informant before any
coordinated transaction. Finally, Intelligence Analyst Gabriella
Perez (“Analyst Perez”), introduced various charts and records
pertaining to Marchan and Ramirez’s telephone calls. The
defense introduced a stipulation that no fingerprint analysis
was performed.
Following the close of evidence but before deliberations, the
parties agreed that the Spanish language recording would not
be given to the jury; only the translated transcript would be
provided. However, the jury later requested the audio record-
ing, which the court sent back over Marchan’s objection.
Ultimately, the jury returned a guilty verdict on both
counts of the indictment. On July 26, 2018, Marchan was
sentenced to 60 months in the custody of the Bureau of Prisons.
II. ANALYSIS
Marchan argues that his trial was tainted with numerous
errors that deprived him of a fair trial. He first asserts that the
trial court abused its discretion when it denied his motion for
a mistrial following the government’s solicitation of inadmissi-
ble co-conspirator statements. He argues the court erred when
No. 18-2758 5
it limited his cross-examination of Chavelas regarding his bias.
He next argues the court erred when it permitted the jury to
consider the Spanish language audio recording of the transac-
tion in addition to the transcript. And finally, he argues that a
new trial is required because of the cumulative effect of the
above errors. For the reasons below, we disagree and affirm
the decision of the district court.
A. Marchan’s Motion for Mistrial
Marchan argues that testimony elicited by the government
during the direct examinations of TFO Gomez, Agent Putman,
and Chavelas, was an attempt to show that Chavelas and
Ramirez arranged the transaction—all of which was inadmissi-
ble hearsay. He argues that because the government improp-
erly introduced hearsay statements from Ramirez, the court
should have granted a mistrial.
“A mistrial is appropriate when an event during trial has a
real likelihood of preventing a jury from evaluating the
evidence fairly and accurately, so that the defendant has not
been deprived of a fair trial.” United States v. Hilliard, 851 F.3d
768, 778 (7th Cir. 2017) (internal quotations and citation
omitted). Improperly admitted statements may be grounds for
a mistrial. See United States v. Cardena, 842 F.3d 959, 993 (7th
Cir. 2016) (discussing co-conspirator statements in the context
of United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978)). The
district court’s denial of Marchan’s motion for a mistrial is
reviewed for abuse of discretion. Hilliard, 851 F.3d at 778
(citations omitted).
Marchan suggests that over multiple days and from
multiple witnesses, the government elicited hearsay testimony
6 No. 18-2758
which showed Chavelas coordinated with Ramirez to purchase
cocaine from him. Absent this evidence, he argues, there was
no other evidence to establish his participation in the transac-
tion. However, the contested statements were not admitted to
prove the truth of the matter asserted and when inadmissible
testimony was given, the court instructed the jury to ignore the
statements.
TFO Gomez testified about his meeting with Chavelas and
stated he believed he was meeting with him to discuss a
forthcoming narcotics transition. He then spoke about the
actions he took on December 28 and 30, 2016, leading up to the
narcotics transaction. He did not testify about what was said at
these meetings. TFO Gomez’s testimony was not given to
prove the truth of the matter asserted, Fed. R. Evid. 801(c)
(defining hearsay), instead, the statements were made to show
the course of the investigation. United States v. Cruse, 805 F.3d
795, 810 (7th Cir. 2015) (“statements offered to establish the
course of the investigation, rather than to prove the truth of the
matter asserted, are nonhearsay and therefore admissible.”)
(quoting United States v. Taylor, 569 F.3d 742, 749 (7th Cir.2009)).
While we are reluctant to permit “course of the investigation”
rationale for fear of its abuse or misuse, Carter v. Douma, 796
F.3d 726, 736 (7th Cir. 2015); see United States v. Haldar, 751 F.3d
450, 454 fn.1 (7th Cir. 2014), here the district court carefully
limited any controversial testimony.
Agent Putman’s testimony was similar to TFO Gomez. He
testified about his coordination with Chavelas and the course
of the investigation leading up to and including the transaction
on the evening of January 4, 2017. Like with TFO Gomez, the
defense did not object to the majority of these questions. When
No. 18-2758 7
the defense did object, the court sustained the objection and
instructed the jury to disregard the question and answer.
Because the contested statements are course of investigation
statements not hearsay, the court was correct to permit the
testimony. Cruse, 805 F.3d at 810.
The defense also takes issue with much of Chavelas’s
testimony. He argues that the identifications of Marchan were
inappropriate, but no objection was made at trial and the
identifications are not inadmissible under the hearsay rule. The
defense next argues that the exchange where Chavelas dis-
cussed the purpose of the meeting with Ramirez was inappro-
priate. Typically, a co-conspirator’s statements are excluded
from the definition of hearsay, Fed. R. Evid. 801(d)(2)(E), but
here the government withdrew the Santiago proffer so the
district court never decided if there was a conspiracy as a
matter of law. However, even if Chavelas’s statements were
hearsay, any error is harmless because TFO Gomez and Agent
Putman already testified to the issues challenged, corroborat-
ing his testimony. Because Chavelas’s testimony was cumula-
tive and corroborated, we find any error was harmless. See
United States v. Castelan, 219 F.3d 690, 696 (7th Cir. 2000)
(articulating the test for harmless error). Moreover, the few
objections that were made at trial were largely sustained
and the court instructed the jury to disregard the questions
and answers. “Absent a showing to the contrary, this Court
presumes that the jury limited its consideration of testimony in
accordance with the trial court's instruction.” United States v.
Bermea-Boone, 563 F.3d 621, 625 (7th Cir. 2009).
8 No. 18-2758
B. The Scope of Chavelas’s Cross-Examination
Before Chavelas testified, Marchan moved in limine to
explore his cooperation agreement with the government and
any mandatory minimum sentence he may or may not have
avoided. The government opposed the motion arguing that:
any cross-examination exploring Chavelas’s mandatory
minimum would likely confuse the jury and obfuscate the issue
at bar; and a mandatory minimum would be the result of the
government’s charging decisions not Chavelas’s cooperation
at present. The court prohibited any cross-examination of
Chavelas regarding any mandatory minimum he might face.
Now, Marchan argues that the court’s curtail of his cross-
examination violated the Sixth Amendment’s confrontation
clause because he was unable to explore the witness’s bias
against him.
The Sixth Amendment guarantees criminal defendants the
right to confront witnesses against them. U.S. Const. amend VI.
When the district court’s limitations on cross-examination
directly implicates the core values of the Confrontation Clause
our review is de novo, otherwise we review for abuse of
discretion. United States v. Trent, 863 F.3d 699, 704 (7th Cir.
2017) (citations omitted).
Here, the district court permitted Marchan to cross-examine
Chavelas about his underlying bias. Chavelas testified that he
believed his cooperation would result in a recommendation for
a reduced sentence and that his Guidelines sentence was
between 46 to 57 months. On cross-examination, Chavelas
testified that he faced a maximum penalty of 20 years incarcer-
ation and was hoping the government would recommend a
No. 18-2758 9
downward departure of 23 months. Because Marchan was able
to address Chavelas’s bias against him, the appropriate
standard of review is for abuse of discretion.
The gravamen of Marchan’s argument is that the govern-
ment chose to levy a lesser charge against Chavelas. He
suggests that, had the government wanted to, the U.S. Attor-
ney’s office would have been able to “find” an additional .2
grams of heroine to subject Chavelas to a harsher charge with
a mandatory minimum sentence of ten years. This is the kind
of reasonable limitation that the district court is expected to put
on cross-examination. At best, this argument would have
confused the jury and, at worst, it suggests impropriety by the
government without supporting evidence. United States v.
Cavender, 228 F.3d 792, 798 (7th Cir. 2000) (“The district court
retains wide latitude to impose reasonable limits on the scope
and extent of cross-examination based on concerns about
things like harassment, prejudice, confusion of the issues, or
interrogation that is repetitive or only marginally relevant.”).
Chavelas’s testimony at trial was sufficient to expose his
bias against Marchan and illustrate the benefits he might
receive in connection with his testimony. Confrontation Clause
concerns are ameliorated by exposing a witness’s motivation
to lie and biases towards the defendant. It is of secondary
concern “how much opportunity defense counsel gets to
hammer that point home to the jury.” United States v. Williams,
892 F.3d 242, 248 (7th Cir. 2018), cert. denied, 139 S. Ct. 467
(2018). The district court did not abuse its discretion by limiting
Marchan’s cross-examination of Chavelas.
10 No. 18-2758
Additionally, Marchan argues he should be permitted to
cross-examine Chavelas concerning his subjective under-
standing of the charges he was facing before his agreement to
cooperate with the government. He argues that the restriction
of his ability to inquire about the length of sentence Chavelas
hoped to avoid is reversible error. We disagree.
While anything that motivates a witness to testify is
properly within the confrontation clause, Trent, 863 F.3d at 705,
here the exclusion of this line of questioning is not fatal to the
government’s case. As noted above, Chavelas’s testimony and
cross-examination was extensive. He was questioned about his
motivation for cooperating with the government and testifying
at trial. He also testified about his maximum sentence, a
potentially reduced sentence, and his hopes that the govern-
ment would recommend a sentence of 23 months.
As noted above, Chavelas’s testimony was sufficient to
expose his bias and interest. Accordingly, we need not address
whether the district court abused its discretion when it
prohibited cross-examination concerning an avoided manda-
tory minimum sentence.
C. The Jury’s Consideration of the Audio Recording
During Deliberations
Following trial, but before deliberations commenced, the
parties agreed the jury would not be given the audio recording.
Instead, they would only be furnished with a transcript
prepared by the Translator. After deliberations began, the jury
sent out a note requesting the audio recording of the trans-
action. The government agreed and, over objection, the court
permitted the recording to be considered by the jury, noting
No. 18-2758 11
that it was properly admitted into evidence even though it was
not published at trial. Marchan argues that the district court
erred when it permitted the jury to consider the Spanish
language audio of the transaction.
The district court has broad discretion when considering
what evidence to permit in the deliberation room when
exhibits are properly admitted at trial. United States v. Biggs,
491 F.3d 616, 623 (7th Cir. 2007). “We review the district court's
handling of the exhibits for a clear abuse of discretion.” Id.
Marchan’s principal argument in the presence of Spanish
speaking jurors means their Spanish language skills will
necessarily come into play when they listen to the audio.
Accordingly, they will wield undue influence in the jury room.
But, when the jurors were provided with the audio recording,
they were recalled into the courtroom and instructed that they
were to determine the accuracy of the translation given the
Translator’s qualification and the circumstances surrounding
its production. They were admonished not to rely on their own
Spanish language skills.
There is a rebuttable presumption that juries follow the
instructions given by the court. United States v. Flournoy, 842
F.3d 524, 528 (7th Cir. 2016). Here, Marchan has done nothing
to persuade us that the jury ignored the court’s instructions.
Our analysis in United States v. Magana, is informative. 118 F.3d
1173 (7th Cir. 1997). In Magana, the district court prohibited the
government from giving transcripts and audio recordings to
the jury that were not previously published at trial, despite
being properly admitted into evidence. But, through a mis-
understanding, many transcripts were provided which were
12 No. 18-2758
not accompanied by a tape that had been published at trial.
Ultimately, the transcripts provided were removed from
deliberations and the jury was instructed to disregard any
transcript which did not have a corresponding audio record-
ing. Magana, 118 F.3d at 1180–1184.
Here, the recording was properly admitted into evidence,
provided additional information not present in the transcript
(e.g., tone and clarity), and the district judge gave proper
limiting instruction. Therefore, we find that it was not an error
to give the recording to the jury during deliberations. More-
over, considering our precedent in Magana, even if there might
have been an error, it would have been harmless beyond a
reasonable doubt.
D. The Cumulative Error at Trial was Harmless
“Cumulative errors, while individually harmless, when
taken together can prejudice a defendant as much as a single
reversible error and violate a defendant's right to due process
of law.” United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001).
To establish cumulative error a defendant must show that
“(1) at least two errors were committed in the course of the
trial; (2) considered together along with the entire record, the
multiple errors so infected the jury’s deliberation that they
denied the petitioner a fundamentally fair trial.” Id. at 847
(quoting Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000)).
Here, Marchan points to perceived errors but, as noted
above, few errors occurred at trial. Any inadmissible hearsay
testimony elicited by the government during their case-in-chief
was stricken by the court and any error that resulted from
providing the jury with the audio recording during delibera-
No. 18-2758 13
tions was de minimis. When considered together, these errors
fail to show the defendant was deprived of a fair trial.
III. CONCLUSION
Because no one error, nor the sum of all the perceived
errors, was so egregious as to deprive Marchan a fair trial, we
affirm the conviction.