United States v. Pablo Hidalgo-Sanchez ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 20-2673 & 21-1158
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PABLO HIDALGO-SANCHEZ and LUIS F. GOMEZ
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 17-CR-113 — Pamela Pepper, Chief Judge.
____________________
ARGUED JANUARY 5, 2022 — DECIDED MARCH 31, 2022
____________________
Before KANNE, WOOD, and BRENNAN, Circuit Judges.
KANNE, Circuit Judge. Pablo Hidalgo-Sanchez and Luis F.
Gomez, among others, were indicted for their roles in a drug-
distribution conspiracy operating in Milwaukee, Wisconsin.
Each was convicted by a jury and now appeals.
Hidalgo-Sanchez challenges the sufficiency of the evi-
dence against him, the propriety of venue in the Eastern Dis-
trict of Wisconsin, and the failure of the trial judge to give a
2 Nos. 20-2673 & 21-1158
limiting instruction to the jury, but we find no reversible error
among these issues.
Gomez challenges the government’s use of bolstering tes-
timony. We agree that the government’s use of such testimony
constituted error, but ultimately conclude that the error does
not warrant reversal.
Therefore, we affirm both convictions.
I. BACKGROUND
A. Factual Background
In June 2017, twenty-one people were indicted for their al-
leged roles in a drug-trafficking conspiracy that sought to dis-
tribute methamphetamine, cocaine, and heroin in Milwaukee,
Wisconsin. Among the indicted were defendants Pablo Hi-
dalgo-Sanchez (also known by the name “PeeWee”) and Luis
F. Gomez (also known as “Paco”), the appellants in this case.
The indictment was the result of a long-term investigation
by the DEA and the High Intensity Drug Trafficking Area
(“HIDTA”) task force. DEA agents first identified a money
courier operating in Chicago and Milwaukee, and the investi-
gation expanded from there. Eventually, investigators ob-
tained authorization to monitor phones used by members of
the organization. The information investigators learned from
these wiretaps enabled them to further surveil the organiza-
tion using pole cameras and in-person observation.
Gomez is the purported leader of the organization. He was
in communication with suppliers in Mexico and he oversaw
the importation of controlled substances to the Milwaukee
area. The organization moved drugs to the Midwest by hiding
them in secret compartments in vehicles that were then
Nos. 20-2673 & 21-1158 3
loaded onto commercial car carriers. When the drugs reached
their destination, they were replaced with proceeds and the
cars were sent back to their source.
Over the course of the investigation, agents seized four
such vehicles. The basic details of each of these seizures are
outlined below:
• On March 5, 2017, law enforcement officers seized a sil-
ver Chrysler 300 near Albuquerque, New Mexico, con-
taining eleven kilograms of cocaine.
• On April 18, 2017, law enforcement officers seized a sil-
ver Volkswagen Jetta in West Chicago, Illinois, contain-
ing $145,380.
• On May 14, 2017, law enforcement officers seized a
Mercury Marquis in Seward, Nebraska, containing
$99,920 and one kilogram of cocaine.
• On July 25, 2017, law enforcement officers seized a
Mercedes SUV in Livingston County, Michigan, con-
taining about five kilograms of methamphetamine.
While Gomez arranged the first three of these intercepted
shipments, Hidalgo-Sanchez was responsible for the last. Af-
ter they were arrested, Gomez and Hidalgo-Sanchez were
charged in Count One of the indictment, together with fifteen
others, with conspiring to distribute one kilogram or more of
heroin, five kilograms or more of cocaine, and fifty grams or
more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846, and also with aiding and
abetting the conspiracy in violation of 18 U.S.C. § 2.
4 Nos. 20-2673 & 21-1158
B. Evidence
The evidence in this case consists of physical evidence, tes-
timony based on in-person surveillance and other law en-
forcement activities, pole-camera videos, and the fruits of a
wiretap investigation. In addition to call recordings and tran-
scripts of those calls, the wiretap investigators also collected
GPS location information for all of the phones used in inter-
cepted calls. Depending on the carrier, the location infor-
mation would indicate a broad area around a cell tower or a
smaller subsection of that area, or it might even pinpoint a
phone within thirty meters. Investigators would often send
officers to conduct in-person surveillance at the location
where a call was made so that they could collect more infor-
mation or identify new coconspirators.
Evelyn Lazo, a Milwaukee police officer and HIDTA task
force member, participated in all aspects of the investigation.
She is also a native Spanish speaker, so she was able to verify
that the English translations of the intercepted calls were ac-
curate. Because she was intimately acquainted with the voices
of everyone recorded on the calls, she was able to identify the
speakers on all calls. She also testified that Hidalgo-Sanchez
identified his own voice on two of the calls when he was ar-
rested.
Detective Matthew Cooper explained how investigators
associated phone numbers with specific people. They began
with information that linked coconspirators Jonathan Mar-
tinez-Acosta and Juan Avina to certain phone numbers. Then
they began to intercept calls on those numbers. Officer Lazo
explained that when they intercepted calls or text messages,
they received toll data. Toll data includes the phone numbers
of the calling and receiving phones, the date and time of the
Nos. 20-2673 & 21-1158 5
call, how long the call lasted, and sometimes location infor-
mation. Detective Cooper testified that they started identify-
ing other people intercepted on the calls. If someone was not
known to the investigation, then they might use in-person
surveillance to figure out their identity. Using these methods,
they were able to associate all of the intercepted phone num-
bers with specific people and, when appropriate, expand the
wiretap to include those numbers.
1. Bryan Banks
One man, Bryan Banks, gave key testimony during the
trial. Banks testified that he worked with Gomez, among oth-
ers. He explained how much he paid for kilograms of cocaine.
He also told the jury that he and his coconspirators referred
to drugs and money using coded language. He ordered kilo-
grams using just a bare number (e.g., “one” or “two”). Heroin
was “dog,” “puppy,” “boy,” or “China rice.” He also ex-
plained that “hard and solid” cocaine was preferable to “pow-
dery” cocaine because the latter might have been adulterated.
Banks identified Gomez as the man he would get drugs from.
He also identified Gomez’s voice on several intercepted calls.
On July 12, 2017, a call between Banks and Gomez was in-
tercepted. In that call, Banks requested “two.” Then he and
Gomez met up at the location where Banks stored his product.
Milwaukee police officer and HIDTA task force member Mi-
guel Correa, Jr. testified about another such meeting: On Sep-
tember 15, 2017, Banks texted Gomez, indicating that he
wanted “one.” Officer Correa immediately went to Banks’s
residence, where he witnessed Gomez arrive and meet Banks
out of sight.
6 Nos. 20-2673 & 21-1158
2. Chrysler 300
Detective Cooper testified that he directed agents to sur-
veil a Wal-Mart parking lot on January 25, 2017, in anticipa-
tion of a heroin shipment arriving. The agents collected video
and photographic evidence that showed coconspirators Mar-
tinez-Acosta and Mario Esquivel-Sotelo receive a gray Chrys-
ler 300 from a commercial car carrier. Detective Cooper en-
tered the car’s license plate number into a national automated
license plate reader program that would alert him if one of the
program’s cameras identified the plate number.
Later that day, several calls between Gomez and Martinez-
Acosta were intercepted. Gomez confirmed that they got the
right vehicle and told Martinez-Acosta that he would tell him
“how to open that shit up so that [he] can get out those things
and then put it in the garage.” Gomez also warned Martinez-
Acosta that the car has “a listening device and it shows where
the car is,” so he shouldn’t say anything.
Detective Cooper received an alert from the license plate
reader program on March 5, 2017, that the Chrysler 300 was
in New Mexico. He notified the New Mexico State Police, who
intercepted it. Those officers found eleven kilograms of co-
caine, a GPS tracker, and an audio recorder.
3. Jetta
Detective Cooper testified that on February 28, 2017, a pole
camera captured video of Gomez backing out of his garage in
a silver Volkswagen Jetta. A few days later, Gomez and sev-
eral others were seen with the Jetta in an alley behind
Gomez’s apartment. Shortly thereafter, security cameras cov-
ering a Wal-Mart parking lot showed the Jetta being loaded
onto a commercial car carrier. Officer Correa noted that a
Nos. 20-2673 & 21-1158 7
white SUV he had surveilled previously was monitoring the
loading and left upon completion.
Homeland Security Investigations Special Agent and
HIDTA task force member Russell Andrew Dykema testified
that he shot video of the silver Jetta being loaded onto another
car carrier on April 18, 2017. The jury also saw this video. Af-
ter the Jetta was loaded onto the carrier, Special Agent
Dykema followed it for “hours” into Illinois. A number of
other officers arrived, stopped the car carrier, inspected the
Jetta, and found $145,380 and a GPS tracking device with an
audio recorder.
About a month later, a phone conversation that Gomez
had with two men in Mexico only identified as Peñasco and
Tomas—characterized by the government as the sources of
supply—was intercepted. They discussed the seizure of the
Jetta and the cash in it. They thought it was very “strange.”
4. Grand Marquis
Detective Cooper testified that a March 22, 2017, pole-cam-
era video showed a commercial car carrier depositing a white
Mercury Grand Marquis in an alley. Esquivel-Sotelo and Os-
car Garnica-Manriquez were there to receive the vehicle. Es-
quivel-Sotelo was seen using a phone, and at the same time a
call between him and Gomez was intercepted. Esquivel-
Sotelo asked Gomez how much money he needed to pay the
driver of the car carrier, and Gomez told him how to proceed.
Gomez also instructed Esquivel-Sotelo to “put that away” and
“send me the picture.”
Almost two months later, a call between Gomez and Es-
quivel-Sotelo was intercepted. In that call, Esquivel-Sotelo
confirmed that he was “at the glass place” getting “glass” and
8 Nos. 20-2673 & 21-1158
had arranged for the Marquis to be picked up. Shortly there-
after, Gomez called Garnica-Manriquez and told him to “pick
up the money and head over to my house and start wrapping,
dude.” DEA Special Agent Kellen Williams then observed
Garnica-Manriquez remove a windshield from the back of a
Hummer and carry it into the garage.
Based on information Detective Cooper provided to Dep-
uty Dave Frye of the Seward County Sheriff’s Department, the
Grand Marquis was seized in Nebraska on May 13, 2017. Dep-
uty Frye testified that he removed the windshield because he
knew that the Grand Marquis had a void space that can be
accessed that way. He found three packages and a GPS
tracker. Two of the packages contained cash—$99,920 in to-
tal—and the third contained about a kilogram of cocaine.
On May 15, 2017, Gomez called Tomas to tell him that the
Grand Marquis had been stopped, and then he called Pe-
ñasco, who asked him how many “hamburgers” were in the
vehicle. Gomez responded that there were three—“two (2) of
them were paper (money) and … the bad one.”
5. Mercedes SUV
On July 19, 2017, investigators intercepted two calls be-
tween Hidalgo-Sanchez and someone named Aaron at a car
hauling company called Mueve Tu Carro in Stockton, Califor-
nia. Hidalgo-Sanchez identified himself as “Roberto Mar-
tinez” and arranged for a Mercedes SUV to be transported
from California to Michigan. Detective Cooper used this call
to obtain authority to monitor the location of the car carrier.
When the car carrier was in Michigan, Detective Cooper
alerted the Michigan State Police. Michigan State Police Of-
ficer Daryl Myers testified that he assisted in stopping the car
Nos. 20-2673 & 21-1158 9
carrier. He looked at the bill of lading for the Mercedes SUV
and saw a phone number with a 608 area code, which did not
match the destination—Sturgis, Michigan. This, among other
inconsistencies, raised his suspicion. After a canine alerted of-
ficers to drugs in the vehicle, they searched and found about
five kilograms of methamphetamine.
6. Other Acts
In one of the earliest recorded conversations, Hidalgo-
Sanchez spoke with Avina, on December 5, 2016, about drug
quantities and customer needs. At trial, Detective Cooper tes-
tified that he set up surveillance at Avina’s apartment shortly
after the call. While there, he saw Hidalgo-Sanchez and Avina,
among others, leave the apartment building in rapid succes-
sion. This was just one of “many occasions” that Detective
Cooper conducted surveillance on Hidalgo-Sanchez.
In a January 5, 2017 call with Gomez, Hidalgo-Sanchez re-
quested half a kilogram of drugs. When Gomez told him that
he did not have any, Hidalgo-Sanchez inquired about when
the next shipment would be delivered, and Gomez told him
it would be there in three days. A little less than two weeks
later, they spoke again. This time, Gomez told Hidalgo-
Sanchez that a car containing only heroin had arrived, but that
other drugs would follow in a separate shipment the next day.
On February 15, 2017, Hidalgo-Sanchez spoke over the
phone with Esquivel-Sotelo, who told Hidalgo-Sanchez that
there was a fake fifty-dollar bill among the $600 Hidalgo-
Sanchez gave him, and that Tita, Gomez’s sister, had discov-
ered it. Hidalgo-Sanchez, surprised, asked for the fake bill “so
that [he could] return it to that dude.”
10 Nos. 20-2673 & 21-1158
The next day, Gomez and Hidalgo-Sanchez spoke again.
This time it was Hidalgo-Sanchez who offered two types of
drugs to Gomez, who agreed to send a courier to buy them.
Hidalgo-Sanchez said that thirty-five kilograms were availa-
ble, but Gomez only asked for “one of each.” Gomez told Hi-
dalgo-Sanchez to explain to the courier which package con-
tained which drug.
In a March 6, 2017 call, Hidalgo-Sanchez complained to
Gomez about the quality of a substance that had been deliv-
ered. The color was “bad ass,” but the product was damp and
falling apart. Twenty-five minutes later, the two spoke again.
Hidalgo-Sanchez had a “receipt”—likely money or drugs—
for Gomez and wondered whether he should deliver it then
or “put it all together” and deliver later. They agreed to meet
at Gomez’s residence.
A couple days later, there was a similar quality-assurance
call. Hidalgo-Sanchez complained about drugs that were
“like dirt” and “falling apart.” He had taken some to a “guy”
who had “bought [a] quarter” kilogram from him, but “he
didn’t want it.” Hidalgo-Sanchez requested that Gomez ex-
change it for product that was “more solid,” and Gomez
agreed. Gomez assured Hidalgo-Sanchez that the replace-
ment was “harder,” and that Hidalgo-Sanchez could “give
[him the] powdery one,” and he would “see what [he could]
do with that.”
On March 10, 2017, Gomez answered a call from Hidalgo-
Sanchez, referring to himself as the “number one from Mil-
waukee.” Hidalgo-Sanchez asked if Gomez wanted any of the
two kinds of drugs he had from California. Gomez first told
him to bring it over to where he was, but then asked for a pic-
ture instead.
Nos. 20-2673 & 21-1158 11
Eleven days later, on March 21, 2017, another call between
the two was intercepted. Hidalgo-Sanchez was at a private
party at a restaurant in Milwaukee. He tried to get Gomez to
bring some drugs because he had a customer who was ready
and willing to buy a “quarter.” Gomez said he only had the
“lo[o]se” kind that Hidalgo-Sanchez had returned to him. Hi-
dalgo-Sanchez then asked when he could expect more, and
Gomez said “supposedly in a little bit.” Finally, he inquired
about whether Gomez could help him purchase product from
a different supplier. The supplier would only sell if they took
“everything at once” and paid cash at the time of sale.
On June 22, 2017, Gomez and Hidalgo-Sanchez discussed
prices for kilograms of cocaine. Gomez offered to “len[d]”
several kilograms to Hidalgo-Sanchez for a few days for him
to sell. Hidalgo-Sanchez was interested but noncommittal.
The next month, on July 10, 2017, the two discussed drug
proceeds, and Hidalgo-Sanchez agreed to temporarily pro-
vide cocaine to Gomez, despite Gomez typically supplying
Hidalgo-Sanchez. Gomez asked him to “set 4 aside,” and Hi-
dalgo-Sanchez agreed.
In an August 16, 2017 call, Gomez and Esquivel-Sotelo dis-
cussed the distribution of drug proceeds. Esquivel-Sotelo ex-
plained that he gave $2,000 to Hidalgo-Sanchez and the re-
mainder to Gomez’s sister.
Finally, on September 1, 2017, Gomez and Hidalgo-
Sanchez spoke again by phone. Hidalgo-Sanchez asked if
Gomez still had some of “that fucked up dog”—low-quality
heroin. He wanted to give a customer a sample. Gomez ex-
plained that he had “already delivered it all” but that another
shipment would be arriving a few days later. They also
12 Nos. 20-2673 & 21-1158
discussed the price of cocaine available through Gomez’s Chi-
cago supplier.
C. District Court Proceedings
1. Bill of Lading
Above, we mentioned that Michigan State Police Officer
Daryl Myers became suspicious when he saw several incon-
sistencies on the bill of lading associated with the transport of
a Mercedes SUV. One of the inconsistencies was that the num-
ber listed for the recipient of the vehicle had a Madison, Wis-
consin area code instead of an area code for somewhere near
the destination in Sturgis, Michigan.
When the government moved to admit the bill of lading,
counsel for Hidalgo-Sanchez objected, asserting that it consti-
tuted hearsay if offered for the truth of any of the matters as-
serted therein. The government explained that it was only of-
fering the bill of lading to show why officers investigated fur-
ther (because of the inconsistencies), and not for the truth of
what was asserted on it. Counsel for Hidalgo-Sanchez fol-
lowed up by asking the court to give a limiting instruction to
the jury explaining what it was being admitted for. The court
explained that it would give “legal instructions” at the end of
the case, and it admitted the bill of lading for the stated pur-
pose over the objection.
Toward the end of the trial, Hidalgo-Sanchez submitted a
proposed limiting instruction. It read:
The court received into evidence government Ex-
hibit 369, which is the bill of lading seized from the
car-hauler during the stop and search in Michigan
on July 25, 2017. The bill of lading has certain infor-
mation written on it. The government represented to
Nos. 20-2673 & 21-1158 13
the court that the exhibit was offered not for the
truth of any writing contained on the exhibit; but,
rather, only [to] demonstrate the effect it had on the
officer conducting the stop and the search of the
cars, and to explain the next steps he took. You may
consider the bill of lading for that purpose only. You
may not consider it for the truth of any matter writ-
ten on the bill of lading.
He supported this instruction by citing Federal Rule of Evi-
dence 105, which states, “If the court admits evidence that is
admissible … for a purpose—but not … for another pur-
pose—the court, on timely request, must restrict the evidence
to its proper scope and instruct the jury accordingly.” Fed. R.
Evid. 105.
The government responded that “bills of lading should be
admissible … as substantive evidence, not for a limited pur-
pose.” Then, he acknowledged that “it was initially admitted
only for the purpose of the effect on the listener,” but then
moved for the bill of lading to be admitted into evidence with-
out limitation.
The court explained that it did not think the bill of lading
was being admitted for the truth of the matter asserted and
that it did not see any reason to give an instruction. The court
added, “It’s not being admitted to show that this is where this
shipment was going and this is who ordered the shipment to
go there and the jury knows that.” Thus, it seems that the
court denied Hidalgo-Sanchez’s proposed instruction and the
government’s motion to admit the bill of lading without lim-
itation.
Later in the trial, when the government discussed the
Michigan seizure of the Mercedes SUV, it explained how the
14 Nos. 20-2673 & 21-1158
shipment was coordinated but never explicitly mentioned the
bill of lading. The only mentions of the phone number used
to arrange the shipment are:
• “[I]t’s ultimately up to the jury to decide whether or
not Mr. Hidalgo-Sanchez is, in fact, the one that coor-
dinated the shipment of drugs from Stockton, Califor-
nia to Sturgis, Michigan, but there is certainly a call
that details that, and that call is connected to Mr. Hi-
dalgo-Sanchez by one of the phone numbers on the
wire.”
• “Both the calls, Government [exhibits] 366 and 367, are
intercepted on target number (608) 404-4032, telephone
with a Madison phone number that was being utilized
by Pablo Hidalgo-Sanchez.”
Notably, the government did not mention the information on
the bill of lading in its closing.
2. Rule 29 Motions
At the close of the government’s case, both Gomez and Hi-
dalgo-Sanchez moved for dismissal pursuant to Federal Rule
of Criminal Procedure 29(a). Gomez simply moved to dis-
miss, while Hidalgo-Sanchez made a more detailed argu-
ment. Hidalgo-Sanchez argued that the government’s evi-
dence was insufficient to establish that he was a party to a
conspiracy to distribute controlled substances in the Eastern
District of Wisconsin.
The court denied both motions because it found that the
evidence the government presented, when viewed in the light
most favorable to the government, was certainly sufficient to
demonstrate that Gomez and Hidalgo-Sanchez had engaged
Nos. 20-2673 & 21-1158 15
in a conspiracy with others to distribute controlled sub-
stances.
3. Bolstering Testimony
During his initial examination of Detective Cooper, the
prosecutor elicited a significant amount of testimony about
the process for obtaining and maintaining a wiretap. The per-
tinent exchanges are included with the analysis below.
II. ANALYSIS
In this appeal from the convictions of two separate de-
fendants, we will first address Hidalgo-Sanchez’s arguments
then proceed to Gomez’s arguments.
A. Hidalgo-Sanchez
Hidalgo-Sanchez raises three issues on appeal. First, he ar-
gues that the evidence presented at trial was insufficient as a
matter of law to support his conviction for conspiracy to dis-
tribute controlled substances in the Eastern District of Wis-
consin. Second, he asserts that venue is improper in that dis-
trict. Third, he contends that the district court reversibly erred
when it failed to give a certain limiting instruction to the jury.
1. Sufficiency of the Evidence
Because Hidalgo-Sanchez preserved his sufficiency-of-
the-evidence argument by moving for judgment of acquittal
under Federal Rule of Criminal Procedure 29 at the close of
evidence, we review his claim de novo. United States v.
Claybrooks, 729 F.3d 699, 704 (7th Cir. 2013). That does not
mean, however, that he has an easy road ahead. In fact, he
faces a “nearly insurmountable” burden. United States v. An-
derson, 988 F.3d 420, 424 (7th Cir. 2021) (quoting United States
v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018)).
16 Nos. 20-2673 & 21-1158
In sufficiency challenges to jury verdicts, “we review the
evidence presented at trial in the light most favorable to the
government and draw all reasonable inferences in its favor.”
Id. (citing United States v. Grayson Enters., Inc., 950 F.3d 386,
405 (7th Cir. 2020)). “We do not make credibility determina-
tions or reweigh the evidence … .” United States v. Brown, 865
F.3d 566, 570 (7th Cir. 2017). Ultimately, we “will overturn a
conviction only if, after reviewing the record in this light, we
determine that no rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.”
Anderson, 988 F.3d at 424 (citing Grayson Enters., Inc., 950 F.3d
at 405). In other words, “[i]f there is a reasonable basis in the
record for the verdict, it must stand.” United States v. Moshiri,
858 F.3d 1077, 1082 (7th Cir. 2017) (citing United States v.
Galati, 230 F.3d 254, 258 (7th Cir. 2000)).
To secure a conviction in a conspiracy prosecution, “the
government must prove that (1) two or more people agreed
to commit an unlawful act, and (2) the defendant knowingly
and intentionally joined in the agreement.” United States v.
Hopper, 934 F.3d 740, 754 (7th Cir. 2019) (quoting United States
v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010)). With respect to
drug-distribution conspiracies, “[t]he government must
prove beyond a reasonable doubt that the defendant know-
ingly agreed, perhaps implicitly, with someone else to distrib-
ute drugs.” United States v. Vizcarra-Millan, 15 F.4th 473, 506
(7th Cir. 2021).
Evidence showing only that two people are in a buyer-
seller relationship is insufficient to prove a drug-distribution
conspiracy. Hopper, 934 F.3d at 754. The same is true if the ev-
idence is “in equipoise”—that is, it suggests that either possi-
bility is equally likely. Johnson, 592 F.3d at 755.
Nos. 20-2673 & 21-1158 17
There are two principles that are helpful to this analysis.
First, “[t]o be liable for conspiracy, a defendant must have ‘a
stake in the venture’ and therefore exhibit[] ‘informed and in-
terested cooperation.’” Vizcarra-Millan, 15 F.4th at 507 (altera-
tion in original) (quoting United States v. Brown, 726 F.3d 993,
998 (7th Cir. 2013)). Second, we require “[e]vidence of an
agreement to advance further distribution—beyond the initial
transaction.” Hopper, 934 F.3d at 754 (alteration in original)
(citing United States v. Pulgar, 789 F.3d 807, 812 (7th Cir. 2015)).
We have also acknowledged and employed a “nonexhaus-
tive list of characteristics that strongly distinguish a conspir-
acy from a buyer-seller relationship.” Id. at 755 (quoting
United States v. Pereira, 783 F.3d 700, 704 (7th Cir. 2015)). Those
characteristics include:
sales on credit or consignment, an agreement to look
for other customers, a payment of commission on
sales, an indication that one party advised the other
on the conduct of the other’s business, or an agree-
ment to warn of future threats to each other’s busi-
ness stemming from competitors or law enforce-
ment authorities.
Id. (quoting Pereira, 783 F.3d at 704). Moreover, “if a person
buys drugs in large quantities (too great for personal con-
sumption), on a frequent basis, on credit, then an inference of
conspiracy legitimately follows.” Brown, 726 F.3d at 1002.
Despite the utility of these “rules of thumb,” Vizcarra-Mil-
lan, 15 F.4th at 507, our ultimate charge is to “take into account
all the evidence surrounding the alleged conspiracy and make
a holistic assessment of whether the jury reached a reasonable
verdict,” Brown, 726 F.3d at 1002. Otherwise stated, we must
18 Nos. 20-2673 & 21-1158
“consider the totality of the circumstances” to determine
whether a conspiracy existed. Id.
Hidalgo-Sanchez first suggests that he was in a mere
buyer-seller relationship with Gomez, not a conspiracy. To
begin, we address the government’s contention that Hidalgo-
Sanchez waived or forfeited this argument because his trial
counsel confirmed to the district court during the jury instruc-
tion conference that the evidence did not require a buyer-
seller instruction. The government’s contention is beside the
point. The thrust of Hidalgo-Sanchez’s appeal is that the evi-
dence was insufficient to show that he was involved in the al-
leged conspiracy. One way for him to do that is to concede
that the evidence is sufficient to prove something short of con-
spiracy—a buyer-seller relationship—but nothing more. Put
a different way, he could have advanced this sufficiency argu-
ment without mentioning “buyer-seller” at all. He could
simply have explained what was not proven and refrained
from also conceding what was proven. He preserved his suf-
ficiency challenge by moving for a judgment of acquittal un-
der Rule 29. Claybrooks, 729 F.3d at 704. His earlier failure to
insist on a buyer-seller jury instruction did not make that
preservation impossible.
Now we turn to the evidence. As will be shown below, the
evidence makes it clear that Gomez was in charge of a fairly
large conspiracy to distribute heroin, cocaine, and metham-
phetamine in Milwaukee. He worked with coconspirators to
transport these controlled substances to Milwaukee by hiding
them in void spaces in cars that were then shipped via com-
mercial car carriers. They would then hide money or drugs in
the cars and send them elsewhere. Testimonial evidence, rec-
orded calls, pole-camera footage, and in-person surveillance
Nos. 20-2673 & 21-1158 19
confirm Gomez’s role in at least three of these shipments. In-
tercepted phone calls also demonstrate that Gomez was in
contact with two people in Mexico that the government as-
serts were sources of supply. Finally, in many phone calls,
Gomez negotiated further drug sales to local distributors. One
such distributor was Bryan Banks, who testified as to the
coded language used in the recorded conversations and made
clear that he was exchanging large sums of money for kilo-
gram quantities of controlled substances.
The key question, though, is whether the evidence ties Hi-
dalgo-Sanchez to this conspiracy. We conclude that it does—
or, at least, there is a reasonable basis in the record for the
jury’s verdict that it does. To be clear, the evidence does not
need to show that Hidalgo-Sanchez was involved in every act
of the conspiracy. United States v. Brasher, 962 F.3d 254, 261–
62 (7th Cir. 2020). It is also not necessary that Hidalgo-
Sanchez knew every member of the conspiracy. Id. at 261. In-
stead, the evidence must only show that he was “aware of the
aim of the conspiracy and made a knowing decision to join
it.” Id. at 262 (citing United States v. Thompson, 286 F.3d 950,
964 (7th Cir. 2002)).
Here, there is evidence that Hidalgo-Sanchez would buy
drugs from Gomez on credit and consignment. A few calls il-
lustrate this point. First, in a June 22, 2017 call, Gomez asked
Hidalgo-Sanchez if he “want[s] some for thirty-one (31), lent
to [him] for about three (3) days.” Later in the call, Gomez ex-
plains that he “can tell them a week,” but “then if they start
asking and I don’t have all the money, they’re going to start
pressuring me.” By the end of the call, it’s not clear whether a
deal was made, but an inference can be reasonably drawn
about the way Gomez and Hidalgo-Sanchez worked together.
20 Nos. 20-2673 & 21-1158
In a February 15, 2017 call, Esquivel-Sotelo tells Hidalgo-
Sanchez that there was a fake fifty-dollar bill that was part of
a $600 payment that made its way from Hidalgo-Sanchez to
Gomez’s sister, Tita. A jury could easily infer from the call that
Esquivel-Sotelo was asking Hidalgo-Sanchez to replace it
with real money and that Hidalgo-Sanchez was intent on
complying.
These two calls, together with Banks’s testimony about the
coded language the conspirators used when making deals,
could lead a jury to conclude that there was a course of con-
duct between Gomez and Hidalgo-Sanchez that involved the
extension of drugs on credit.
With respect to consignment, the key call occurred on
March 8, 2017. In that call, Hidalgo-Sanchez complained that
the “one” he got from Gomez was “falling apart” and “like
dirt.” He explained that one of his customers, a guy who
“bought the quarter from [him],” did not want it. They agreed
that Hidalgo-Sanchez could return the “powdery” kilogram
for a “harder” one, in hopes that the customer would not re-
ject it. The ability to return unsold drugs is the hallmark of a
consignment. See Pulgar, 789 F.3d at 811 (“[W]hen a ‘seller
permits the buyer to return unsold drugs,’ he stands on the
precipice of a consignment sale. And consignment sales are
‘quintessential evidence’ of a drug-distribution conspiracy.”
(citation omitted) (quoting Brown, 726 F.3d at 999)). This call
illustrates that the two had a shared stake in the further sale
of the heroin and were working out a solution together.
Other than these two examples, from which it would be
reasonable for a jury to infer that the two were dealing with
kilogram quantities, below are examples from other calls that
Nos. 20-2673 & 21-1158 21
suggest that Hidalgo-Sanchez acquired “large quantities”
from Gomez:
• January 5, 2017: Hidalgo-Sanchez asked for a “half,”
but Gomez did not have any and didn’t expect any for
three more days.
• March 6, 2017: Hidalgo-Sanchez complained about
product that was “all damp.” They discussed “the
other one,” which fell apart “terribly.”
• March 8, 2017: Hidalgo-Sanchez asked if Gomez
wanted to see the “ones from Califas.” He said he had
“two,” “one and one.”
• March 21, 2017: Hidalgo-Sanchez called Gomez from a
private party at a restaurant and requested a “quarter,”
explaining that there was a buyer waiting with “cash
on hand.” Gomez explained that he only had the
“lo[o]se kind.” Hidalgo-Sanchez changed course and
asked Gomez if he could help him get “twenty five.”
They discussed the difficulty of obtaining that much at
one time. Gomez said that he would “see how many
arrive … and let [him] know how many [he] can han-
dle.” He also ventured that they could “leave five (5)
down there, dude.”
It would be reasonable for a jury to infer from these inter-
actions that Hidalgo-Sanchez and Gomez dealt frequently
with one another and exchanged large quantities of drugs and
money. Moreover, they shared the objective of acquiring
more drugs and ensuring that Hidalgo-Sanchez’s customers
were satisfied. They had a joint stake in the operation.
The jury could also have reasonably inferred from the ev-
idence that Hidalgo-Sanchez arranged the transport of the
22 Nos. 20-2673 & 21-1158
Mercedes SUV containing five kilograms of methampheta-
mine that was intercepted in Michigan. The extreme similar-
ity between this transport and the three other intercepted
transports could reasonably lead a jury to infer that they were
part of the same criminal objective. This is especially so con-
sidering that it happened in the middle of their course of deal-
ing and followed the other three transports.
Admittedly, this evidence does not necessarily entitle the
government to the “legitimate[]” inference of conspiracy that
follows from frequent transactions of large quantities of drugs
on credit. See Brown, 726 F.3d at 1000. Although the evidence
indicates that each of those features is present in one or more
of Gomez’s and Hidalgo-Sanchez’s interactions, it is not clear
that there was a consistent pattern of transactions that in-
cluded all three. We are still convinced that the jury’s verdict
should not be disturbed, though, for two reasons. First, it is
possible that a jury could still reach the opposite conclusion,
and our review is very deferential to that possibility. And sec-
ond, the evidence otherwise establishes that Gomez and Hi-
dalgo-Sanchez are guilty of the charged offense.
In any event, the totality of the circumstances suggests a
relationship between the two that was much deeper and more
entwined than a mere buyer-seller relationship. First and
foremost, there is evidence that shows Gomez sold Hidalgo-
Sanchez drugs on credit and consignment. Second, there is
evidence that Gomez had an interest in the sales that Hidalgo-
Sanchez made. He allowed Hidalgo-Sanchez to replace infe-
rior product to ensure that his customers would be satisfied.
Their relationship also showed a level of trust indicative
of conspiracies. Vizcarra-Millan, 15 F.4th at 507 (“We have
sometimes described [the conspiracy] factors as supporting
Nos. 20-2673 & 21-1158 23
an inference of heightened trust, but evidence of mutual trust
alone is insufficient.” (citing Pulgar, 789 F.3d at 815–16)). They
openly discussed the contents and expected arrival dates of
shipments of controlled substances and very likely shared tac-
tics for trafficking them. And the jury could infer from the
similarity of the four vehicle seizures that the two were carry-
ing out the same operation, or that one “advised the other on
the conduct of the other’s business.” Johnson, 592 F.3d at 755–
56. This is more than enough evidence to support the jury’s
verdict.
2. Venue
Hidalgo-Sanchez also argues that the evidence was insuf-
ficient to show that venue was proper in the Eastern District
of Wisconsin. We disagree. “[I]t is not at all unusual for con-
spiracies to cross state and judicial district lines; hence, the
law recognizes that such crimes may be prosecuted in any dis-
trict where one’s co-conspirators have acted in furtherance of
the conspiracy.” Brasher, 962 F.3d at 263 (citations omitted).
This proposition is backed by 18 U.S.C. § 3237(a), which states
that “any offense … begun in one district and completed in
another, or committed in more than one district, may be …
prosecuted in any district in which such offense was begun,
continued, or completed.”
Here, the evidence shows that Hidalgo-Sanchez himself
committed overt acts in the Eastern District of Wisconsin, not
to mention his coconspirators, including Gomez. Three exam-
ples make the point.
First, on December 5, 2016, Hidalgo-Sanchez and Avina
were intercepted speaking on the phone about drugs. Hi-
dalgo-Sanchez asked, “Isn’t there a little bit from that one?
24 Nos. 20-2673 & 21-1158
Because this guy wants some of that one.” Avina replied,
“Well, … there’s hardly any left … . I don’t know how much
you can get from that one, all that’s left is dust.” Hidalgo-
Sanchez said, “Let me see; are you there?” Avina answered,
“Yes. I’m here at my house.” Detective Cooper testified that,
after the call, he saw Avina and Hidalgo-Sanchez at Avina’s
apartment in Milwaukee. Viewed in the light most favorable
to the government, this exchange shows that the two con-
spired to advance further drug sales in the Eastern District of
Wisconsin.
The second example is the call that Hidalgo-Sanchez made
from the Milwaukee restaurant to Gomez on March 21, 2017.
He called Gomez to try to secure drugs for a customer who
had “cash on hand.” Moreover, they discussed how to obtain
a huge amount of additional drugs from a supplier.
Third, on April 18, 2017, Gomez, with whom the evidence
shows Hidalgo-Sanchez was conspiring, and several others
prepared and loaded the silver Jetta onto a car carrier in the
parking lot of a Milwaukee Wal-Mart. The Jetta was stopped
in Illinois and officers found $145,380, a GPS tracker, and an
audio recorder. Later, an intercepted call featured Gomez dis-
cussing the seizure of the Jetta with his sources of supply in
Mexico. These were clear overt acts, occurring in the Eastern
District of Wisconsin, that were central to the drug-distribu-
tion conspiracy that Hidalgo-Sanchez was a part of.
Because Hidalgo-Sanchez and his coconspirators commit-
ted acts furthering their drug-distribution conspiracy in the
Eastern District of Wisconsin, venue was proper there.
Nos. 20-2673 & 21-1158 25
3. Limiting Instruction
Hidalgo-Sanchez next argues that the district court erred
when it twice refused to give an instruction to the jury to limit
its consideration of the Michigan bill of lading to the purpose
proffered by the government: that there were inconsistencies
on it that prompted Officer Myers to investigate further the
Mercedes SUV. When he did investigate, he found about five
kilograms of methamphetamine.
We review for an abuse of discretion a district court’s de-
cision to give or refuse to give a jury instruction. United States
v. Campos, 541 F.3d 735, 744 (7th Cir. 2008). We conclude that
there was an abuse of discretion in this case when the district
court refused to give a limiting instruction along the lines of
what Hidalgo-Sanchez requested. That is because Federal
Rule of Evidence 105 provides that “[i]f the court admits evi-
dence that is admissible … for a purpose—but not … for an-
other purpose—the court, on timely request, must restrict the
evidence to its proper scope and instruct the jury accord-
ingly.” Fed. R. Evid. 105; United States v. Gomez, 763 F.3d 845,
860 (7th Cir. 2014) (“A limiting instruction must be given upon
request.”).
Here, the district court overruled Hidalgo-Sanchez’s im-
mediate hearsay objection after the government explained
that it was only offering the bill of lading to show why it
“raise[d] this officer’s suspicions.” Then, at the jury instruc-
tion conference near the close of evidence, Hidalgo-Sanchez
proposed a limiting instruction. In response, the government
requested that the bill of lading be admitted without limita-
tion. The district court explained that it did not see “any need
to give the jury an instruction” because the bill of lading was
“not being admitted to show that this is where this shipment
26 Nos. 20-2673 & 21-1158
was going and this is who ordered the shipment to go there
and the jury knows that.” Then, it moved on, leaving undis-
turbed its decisions to admit the bill of lading for a limited
purpose and to not give an instruction.
While we are somewhat persuaded by the reasoning of the
district court that an instruction was not really necessary as a
conceptual matter, that does not negate the fact that Hidalgo-
Sanchez was entitled to one upon timely request. See Fed. R.
Civ. P. 105. Therefore, we believe an abuse of discretion oc-
curred.
Having concluded that refusing to give a limiting instruc-
tion to the jury was error, we must now decide whether it was
harmless. See Fed. R. Crim. P. 52(a). The error was harmless if
it did not affect Hidalgo-Sanchez’s substantial rights. See
United States v. Robinson, 724 F.3d 878, 888 (7th Cir. 2013).
“Generally speaking, a finding of harmlessness is appropriate
only if an appellate court can say ‘with fair assurance’ that the
judgment was not ‘substantially swayed by the error.’” Id.(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). It
is the government’s burden to demonstrate this. Id. (citations
omitted).
Hidalgo-Sanchez contends that the bill of lading was a
critical piece of evidence because it listed a number associated
with him as the recipient’s phone number. The recipient’s
name is listed only as “Jackson.” The jury should have been
instructed not to consider the truth of the matter asserted, Hi-
dalgo-Sanchez insists. But the truth of the matter asserted is
seemingly that a person named Jackson in Sturgis, Michigan,
with this phone number really is the recipient of the Mercedes
SUV. Just as the district court concluded, this does not ad-
vance the government’s case against Hidalgo-Sanchez at all.
Nos. 20-2673 & 21-1158 27
It is possible that the jury knew this number was associ-
ated with Hidalgo-Sanchez, and therefore that he was in-
volved in this shipment, but the government already associ-
ated him with the shipment. It offered two intercepted calls
purportedly from “Roberto Martinez” to the car carrier com-
pany, Mueve Tu Carro. The calls were made from Hidalgo-
Sanchez’s number and Detective Lazo identified his voice on
the calls. Hidalgo-Sanchez tries to deal with this fact by sug-
gesting that even if he were the caller, the bill of lading shows
that he was the recipient, too, and that fact is somehow a
linchpin in the case. But in reality, that additional inference
would not materially change anything, if the jury inferred it
at all.
Although the bill of lading was supposedly critical to the
government’s case, after it was admitted, the government
never mentioned it again at trial or in closing. Additionally,
while Hidalgo-Sanchez was entitled to the instruction and
wanted it, the instruction would have drawn the jury’s atten-
tion back to the bill of lading, when it had been all but aban-
doned. The linchpin argument is also undermined by the
mountain of other evidence connecting Hidalgo-Sanchez to
Gomez and the drug-distribution conspiracy.
As the government points out, there are cases where in-
struction-related errors are so prejudicial that they warrant a
new trial, see Robinson, 724 F.3d at 891, but this case is not one
of them. Here, we “can say ‘with fair assurance’ that the judg-
ment was not ‘substantially swayed by the error.’” Id. at 888
(quoting Kotteakos, 328 U.S. at 765). Therefore, we conclude
that the district court’s failure to give a limiting instruction
was harmless.
28 Nos. 20-2673 & 21-1158
B. Gomez
Gomez raises only one issue in his appellate brief. He ar-
gues that the government’s impermissible use of bolstering
testimony so tainted his trial that a new one is warranted. The
relevant testimony was elicited from Detective Cooper, and
appears below:
Q. Okay. And so you make the determination
that you’re going to get—you’d like to get a wiretap.
How does that process begin?
A. So the wiretap’s kind of a last resort because
it’s a lot of work, so the process begins through the
controlled buys that we’ve talked about through
surveillance, through a lot of analysis of phone rec-
ords and viewing who people are calling and—and
trying to identify who they’re talking to. Eventually
we take all of that information and compile an affi-
davit which lays out our investigation to that point
and the—the reasons we believe that a wiretap’s
necessary.
Q. Okay. And is that a small affidavit, big affida-
vit? About roughly what’s the average size?
A. I believe the goal is approximately 50 pages,
but generally they’re a little longer than that.
Q. Okay. And so you began to, I take it, you be-
gan drafting an affidavit?
A. Yes.
Q. And you did that in consultation with the
prosecutor’s office?
A. Yes.
Nos. 20-2673 & 21-1158 29
Q. Okay. And is that the D.A.’s Office or the U.S.
Attorney’s Office?
A. The U.S. Attorney’s Office.
….
Q. Okay. And so you indicated that a lot of the
information goes into the affidavit including an
analysis of phone records and other documents. Do
you know what a pen register is?
A. Yes.
….
Q. Okay. Once you draft your affidavit for a
wiretap, do you submit it to the U.S. Attorney’s Of-
fice?
A. Yes.
Q. And then the U.S. Attorney’s Office has an in-
ternal approval process?
A. Right.
Q. And then that affidavit gets sent off to an-
other—to be reviewed again?
A. Yes, it does.
Q. And ultimately that affidavit has to be ap-
proved from an official in main justice?
A. Yes.
Q. After that is done, the affidavit that you
drafted, does that get submitted to a judge?
A. It does, yes.
Q. Okay. And that’s a federal judge?
A. Yes.
30 Nos. 20-2673 & 21-1158
Q. And that affidavit is submitted for review
along with an order to allow you to wiretap?
A. Correct.
….
Q. And that was submitted to a federal judge?
A. It was.
Q. And a federal judge signed off for court ap-
proval for a wiretap in that case?
A. Yes.
….
Q. And as part of your commitment to getting
the wiretap—Let me back you up.
When you get a wiretap authorized, that gets
signed by a federal judge?
A. Yes, it does.
Q. And in authorizing the wiretap the federal
judge makes some requirements of the agents, cor-
rect?
A. Yes.
Q. And one of the requirements is an ongoing re-
quirement to—to, for the sake of a better word, up-
date the court?
A. Yes.
Q. So approximately how many—During the
course of a wiretap, you’re required to give updates
to the court?
A. Yes, every 10 days.
Nos. 20-2673 & 21-1158 31
Q. Okay. So every 10 days do you generate a re-
port?
A. Yes.
Q. And that report documents whether—Well,
what’s in that report generally?
A. It documents kind of the status of the investi-
gation, that says what—when did the wiretap go up
on that phone, if it’s still up. It documents the num-
ber of calls that have come in and then the number
of—those that are pertinent or non-pertinent, the
number that have been minimized or were privi-
leged. It discusses whether there were errors of the
monitoring system which might’ve caused us to not
hear—or for calls not to come into our system.
Q. So part of the review process is you got to ba-
sically every 10 days let the Court know that the ma-
chines are working right, right?
A. Right.
Because Gomez did not object to this testimony, our re-
view is for plain error only. See United States v. McMahan, 495
F.3d 410, 418 (7th Cir. 2007), vacated in part on other grounds sub
nom. United States v. Smith, 552 U.S. 1091 (2008). To prevail un-
der this standard, Gomez “must show (1) error, (2) that is
plain, (3) that ‘affects substantial rights,’ and (4) that ‘seri-
ously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Id. (alteration in original) (quoting
United States v. Gray, 410 F.3d 338, 345 (7th Cir. 2005)).
Here, the government concedes that there was error and
that it was plain. Still, we pause for a moment to discuss why
that is. We explained in United States v. Cunningham that testi-
mony regarding the many layers of approval by officials at
32 Nos. 20-2673 & 21-1158
various levels of government required to obtain a wiretap is
“wholly unrelated to the defendants’ guilt or innocence—and
not necessary to be established to prove the case against the
defendants.” 462 F.3d 708, 712 (7th Cir. 2006) (citing Fed. R.
Evid. 401 (definition of relevance); and then Fed. R. Evid. 402
(irrelevant evidence inadmissible)). We summarized our de-
cision in Cunningham in the following way:
Over the defendants’ objection at trial, the govern-
ment recounted a litany of procedures [that] the lo-
cal U.S. Attorney’s office, the Office of the Attorney
General, and the Drug Enforcement Administration
… utilized in seeking court authorization for two tel-
ephone wiretaps. In doing so, the government wit-
ness’s testimony suggested to the jury that a panel
of senior government lawyers in the Office of the At-
torney General in Washington, D.C. and others in
law enforcement were of the opinion that there was
probable cause to believe the defendants were in-
deed engaging in criminal activity. The admission of
this irrelevant evidence had the effect of improperly
bolstering the credibility of the government’s case in
the eyes of the jury, and the error was not harmless.
Id. at 709–10.
The following year, we passed on the same issue again but
reached a different, but consistent result. In United States v.
McMahan, the government impermissibly used bolstering tes-
timony at trial, but defense counsel did not object. Therefore,
we reviewed for plain error. 495 F.3d at 418. We found that
there was error and it was plain, but that it had not affected
McMahan’s substantial rights or seriously affected the fair-
ness, integrity or public reputation of judicial proceedings be-
cause “evidence of the defendants’ criminal activity was
Nos. 20-2673 & 21-1158 33
substantial”; “none of the evidence came from the affidavits
filed in support of the wiretap applications”; and “[t]here was
no further reference to [the bolstering] testimony.” Id.Regarding Gomez’s substantial rights, we reach the same
conclusion—they were not affected by the error, primarily be-
cause the evidence against Gomez was truly overwhelming.
That is, we “can say ‘with fair assurance’ that the judgment
was not ‘substantially swayed by the error.’” Robinson, 724
F.3d at 888 (quoting Kotteakos, 328 U.S. at 765); see also Greer v.
United States, 141 S. Ct. 2090, 2096 (2021) (“[T]here must be ‘a
reasonable probability that, but for the error, the outcome of
the proceeding would have been different.’” (quoting Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018))).
The evidence at trial convincingly demonstrated that
Gomez was central to the drug-distribution conspiracy. He
was recorded on numerous phone calls discussing when ship-
ments would arrive and what drugs they would contain. He
was recorded answering questions and giving instructions to
coconspirators. He was captured on pole-camera footage and
by in-person surveillance preparing cars for transport and
overseeing the loading of the cars onto carriers. He was rec-
orded speaking with two people in Mexico about the seizures
of vehicles across the country containing cash and drugs. And
he was often responsible for ensuring that customers were
satisfied by the drugs that he provided to middlemen, like Hi-
dalgo-Sanchez. When they were not, he would work with the
middlemen to replace them with higher quality drugs. Fi-
nally, Banks testified about specific interactions with Gomez,
deal terms, and the coded language that they would use. In
fact, the evidence is so substantial in this case that we do not
even account for all of it in this opinion.
34 Nos. 20-2673 & 21-1158
Though Gomez failed to meet his burden on the third
prong of the plain error test, dooming his appeal, we also note
that he fails on the fourth prong. Despite his assertion that us-
ing the bolstering evidence “was an intentional effort to ‘back
door’ the jury and infect ‘the fairness and integrity,’ not only
of [his] trial, but of justice itself,” there is no evidence of ne-
farious intent here. (Appellant’s Br. at 19.) Considering the
strength of the case and the absence of evidence on intent, we
cannot say that a “miscarriage of justice” occurred. United
States v. Maez, 960 F.3d 949, 962 (7th Cir. 2020) (explaining that
a “miscarriage of justice” is akin to “a substantial risk of con-
victing an innocent person” (quoting United States v. Paladino,
401 F.3d 471, 481 (7th Cir. 2005))).
Although we find here, as in McMahan, that there was no
plain error, we are disturbed that the government continues
to use bolstering evidence in criminal trials. Fifteen years have
now passed since Cunningham and McMahan, yet it still hap-
pens.
Although Gomez had no proof that the government delib-
erately skirted our rule in this case, we certainly see the po-
tential for prosecutors to evaluate the risk and reward of bol-
stering their weak cases with this type of impermissible testi-
mony. If defense counsel objects, then the government might
have to try the case again if the trial or appeals court deter-
mines the error was not harmless. But if the defense does not
object, then perhaps the government could secure a convic-
tion by prejudicing the jury, and then evade any consequence
because of the deferential plain error standard on appeal.
During oral argument, our concern led us to order the gov-
ernment to submit a supplemental response addressing cases
from other circuits regarding the continued introduction of
Nos. 20-2673 & 21-1158 35
bolstering testimony like the kind at issue here. We asked the
government to include any case in which the appellate court
declined to apply the plain-error standard as a remedial tactic.
The government was able to find only a few cases, and none
declining to apply the plain-error standard. And in the end,
we determined that we were bound to continue to employ
that standard here.
In closing, we want to be very clear: the use of bolstering
testimony of the nature used in this case is impermissible and
it has the potential to damage our criminal courts whenever it
is used. The responsibility for avoiding this falls squarely on
the government. At the very least, the government should en-
sure that its training materials reflect the seriousness of avoid-
ing this type of conduct. It must also do whatever else is nec-
essary to ensure this does not happen again.
Finally, we impart upon the defense bar the importance of
objecting immediately to the use of this type of testimony.
While it was not the only difference between Cunningham and
McMahan, it was a critical difference. As all criminal law at-
torneys are surely aware, plain error review is, by design, a
much harder path to reversal than review for harmless error.
III. CONCLUSION
For the reasons stated above, we AFFIRM the convictions
of both Gomez and Hidalgo-Sanchez.