F.2d at 181 ("We are unable to evaluate what weight the jury attached to
[the unadmitted exhibits]. Therefore a new trial must be had."). Review
for harmless error, however, assumes that the jury did see the evidence
and asks what impact, if any, the exposure had on the verdict. See
Sababu, 891 F.2d at 1333; Dallaqo v. United States, 427 F.2d 546, 557
(D.C. Cir. 1969).
Where a jury is exposed to material that was not properly in evidence,
a new trial is required "only where there is a reasonable probability
that the documents affected the jury verdict." Sababu, 891 F.2d at 1333.
The "reasonable probability" standard is the same as the "harmless error
beyond a reasonable doubt" standard used for other constitutional
violations. See United States v. Bruscino, 687 F.2d 938, 940 (7th Cir.
1982). The defendants argue that the presence of the business card in the
jury room destroyed the credibility of Mr. Chavez and Mr. Gonzalez, both
of whom testified, and undercut the defense that Mr. Chavez did not know
Mr. Gonzalez and Mr. Rodriguez.
To prove that the defendants were part of a conspiracy, the government
need not prove that the defendants knew one another. See United States
v. Shorter, 54 F.3d 1248, 1255 (7th Cir. 1995); Jury Instruction No. 26.
However, it is not enough for the government to show that the evidence
was not necessary to convict; it must prove "beyond reasonable doubt that
the defendant would have been convicted absent the [presence of
unconstitutional evidence]." United States ex rel. Burke v. Greer,
756 F.2d 1295, 1302 (7th Cir. 1985). "The case against the defendant[s]
must be overwhelming in order to apply the harmless error rule." Id. I
must look at the evidence against each defendant individually. See United
States v. Carraway, 108 F.3d 745, 756 (7th Cir. 1997).
Mr. Gonzalez is a recent illegal immigrant in his early twenties, and
he testified that he had no legitimate employment in the United States
prior to his arrest. He admitted that he called Mr. Perez to set up the
meeting at the Comfort Inn. Mr. Perez did not know to whom he was
supposed to deliver the drugs, and he was supposed to receive a page to
set up the delivery; that page came from the cell phone that was found in
Mr. Gonzalez's car when he was arrested. The government found a receipt
in Mr. Gonzalez's wallet with notations (the numbers 276 and 55) that
roughly matched the transcript of one of his telephone calls with Mr.
Perez about the location of the Comfort Inn (exit 267 off Interstate
55), which suggests that he was writing down the location of the Comfort
Inn as he was talking to Mr. Perez. On the same piece of paper there was
a list of numbers adding up to 127 with the notation "one for the
driver"; the government recovered 139 bricks of cocaine from the truck. A
jury might reasonably infer that he meant to meet with Mr. Perez to
arrange the delivery of the drugs, that he expected a certain quantity of
drugs that was close to the actual quantity recovered, and that the
driver's payment was to be one package of cocaine. Mr. Gonzalez denied
that he had written the notes and his attorney challenged the chain of
custody, but Mr. Perez identified him as being present at the meetings at
the Comfort Inn and the oasis, and Mr. Gonzalez admits that he was at
both meetings and that he intended to go to the warehouse. He claimed
that he thought the truck was broken down, and that he had no knowledge
that there were drugs involved. But in the tape recordings of ten
separate telephone calls with Mr. Perez, there was no mention that the
truck was broken or in need of any repair. Mr. Gonzalez went to buy hex
wrenches and screwdrivers with Ramon, and had them in
the car when he was
on the way to the warehouse. It might be inferred that such tools would
be used for opening a sealed compartment, and there was no evidence of
any other tools in the car that might have been necessary to repair a
tractor trailer truck. Mr. Gonzalez received two telephone calls from
Mr. Rodriguez on his way to the warehouse at approximately the same time
that Mr. Perez said he overheard Mr. Rodriguez call someone and say he
was worried he had been followed by the police. Mr. Gonzalez was arrested
after he pulled up the driveway apron of the warehouse (where DEA agents
were standing with Mr. Rodriguez and Mr. Chavez in custody), turned his
car around, and took off at high speed. The agent who chased him
testified that he was driving 60 or 70 m.p.h. in pursuit of Mr.
Gonzalez. Evidence of flight is admissible to show both guilt and
consciousness of guilt. United States v. Zabic, 745 F.2d 464, 471 (7th
Cir. 1984). Even without the business card, the evidence against Mr.
Gonzalez is overwhelming.
So is the evidence against Mr. Rodriguez. He was a childhood friend of
Mr. Gonzalez, and, like Mr. Gonzalez, a recent illegal immigrant. He went
with Mr. Gonzalez to the Comfort Inn to meet Mr. Perez at 2:30 a.m., and
he followed Mr. Gonzalez to the meeting at the oasis, although Mr.
Gonzalez said that he was not present for the discussion with Mr. Perez
and Ramon. He received telephone calls from and made telephone calls to
the same cell phone that was used to page Mr. Perez to set up the meeting
at the Comfort Inn. Although Mr. Gonzalez said that Mr. Rodriguez did not
participate in the oasis meeting, Mr. Rodriguez led Mr. Perez to the
warehouse, and so must have received directions at the meeting, or at
least from someone who did participate. On arrival at the warehouse, Mr.
Rodriguez called someone to express concern that he had been followed by
the police; cell phone records show that he made two calls to the phone
in Mr. Gonzalez's car while Mr. Gonzalez was en route to the warehouse.
Mr. Rodriguez was at the warehouse when the police arrived, and he yelled
"run, run" in Spanish, and attempted to flee. From his warning and
flight, the jury could infer his guilt, as well as his consciousness that
he was at the warehouse for some illegal purpose. See Zabic, 745 P.2d at
471. The government's evidence was overwhelming.
With respect to Mr. Chavez, the most damaging evidence was his role in
arranging for a warehouse, on an illicit if not illegal basis, to be
available after hours for the delivery of the cocaine. He took the stand
and told an elaborate, implausible story that the reason he arranged for
the warehouse was to rig a tractor trailer truck with nitrous oxide to
cheat at a tractor pull. He testified that he was personally very
interested in tractor pulls, and that he sometimes watched such
competitions on television. He said that his brother Ramon called him and
asked him to find a warehouse to "soup up" a truck for a tractor pull
competition. But he never said that his brother had any interest in
tractor pulls. And he said that he and his brother never discussed
"souping up" the truck in the forty minutes they were together in the car
on the way from the city to the oasis. He told Acme warehouse employees
that he needed the warehouse to unload merchandise after hours. On the
stand, he denied that he said "hot" merchandise, but that was the
testimony of one of the warehouse employees. He offered the warehouse
employees $500 each, apparently to be paid by Ramon, for their assistance
in making the warehouse available. He claimed that the reason he didn't
tell them that he wanted the warehouse for reasons relating to a tractor
because he knew that rigging the truck with nitrous oxide was
No criminal defendant has the burden of proof, and the Fifth Amendment
guarantees a defendant's right not to testify, see United States v.
Talbott, 78 F.3d 1183, 1185 (7th Cir. 1996), but once a defendant takes
the stand, the jury is free to assess his credibility and accept or
reject his alibi. See Phelps v. Duckworth, 772 F.2d 1410, 1414 (7th Cir.
1985) (holding that harmless error is not precluded simply because
defendant offers alibi, particularly where the alibi is implausible).
Mr. Chavez's credibility was severely damaged by his own implausible
Moreover, Mr. Chavez was present at the oasis and at the warehouse, and
when Mr. Rodriguez yelled "run, run," he ran out the back door of the
warehouse as the police came in the front door. He testified that he ran
because he thought that, while he was in the restroom, people had started
working on the truck and the nitrous oxide was going to explode.
However, his brother, who was ostensibly the one who wanted to rig the
truck, never showed up at the warehouse. Moreover, the truck was, by all
appearances, a road truck, which would not be on a truck used for tractor
pulling, and not one equipped for a tractor pull — the videos that
Mr. Chavez showed of trucks used in actual tractor pulls only highlighted
the difference. The jury could reasonably infer that Mr. Chavez ran out
of fear of getting caught, not out of fear that something related to the
truck was going to explode. There is no reasonable doubt as to Mr.
Chavez's participation in the conspiracy.
Although it is not necessary to show that the defendants knew each
other, see Shorter, 54 F.3d at 1255, there is ample evidence without the
business card that the defendants at least knew of each others
existence. Mr. Gonzalez and Mr. Rodriguez arranged a meeting at the
oasis, which was about a mile from the warehouse for which Mr. Chavez
made arrangements. All three defendants were present at the meeting at
the oasis; they need not have spoken to each other to have understood
their respective roles. Finally, all three were at or near the warehouse
when they were arrested, Mr. Rodriguez alerted both Mr. Gonzalez and Mr.
Chavez to the presence of the police, and all three attempted flight. In
light of this evidence, the business card was merely cumulative evidence
of the connection between the defendants, and there is overwhelming
evidence to support each conviction, so any error was harmless. See
United States v. Bruscino, 687 F.2d 938, 942 (7th Cir. 1982). The motions
for a mistrial and a new trial are DENIED.