Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 194-Robert W. Gettleman, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge
Before FLAUM, RIPPLE, and SYKES, Circuit Judges.
Saul Tejeda, Juan Alviar, Jose Melero, Rodolfo Madrigal, and Apolinar Delgado-Rios were among a group of individuals indicted in connection with an Aurora, Illinois drug conspiracy. While most of the indicted individuals pleaded guilty, those five defendants went to trial, where a jury convicted each as charged. Tejeda is serving a 360 month prison sentence; Alviar and Melero are serving 262 months; Madrigal is serving 240 months; and Delgado-Rios is serving 121 months. Defendants appeal various aspects of their consolidated trial and their sentences. We affirm on all counts.
In 2003, FBI agents began investigating a suspected drug conspiracy in Aurora. The investigation focused on Tejeda and his associates. The investigation eventually employed cooperating witnesses; pen register information from specific telephones; a court-authorized wiretap; ongoing police surveillance; and several searches.
Based on evidence obtained, a grand jury returned its second superseding indictment on November 17, 2005. The indictment charged seventeen individuals, including Tejeda, Alviar, Melero, Madrigal, and Delgado-Rios, with conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846 (Count One). The indictment charged Tejeda alone with five counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Two through Five, Seven); four counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Counts Six, Eight through Ten); and one count of laundering narcotics proceeds in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Count Eleven). It charged Tejeda and Alviar with two counts of attempting to possess cocaine in violation of 21 U.S.C. § 846 (Counts Twelve and Thir-teen). Tejeda, Melero, and Madrigal were charged with two counts of using a telephone to facilitate a narcotics conspiracy in violation of 21 U.S.C. § 843(b) (Counts Seventeen and Eighteen). The indictment charged Alviar, by himself, with three counts of possession of cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Fourteen through Sixteen). Melero was charged individually with two counts of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Counts Nineteen and Twenty). Delgado-Rios was charged individually with two telephone counts in violation of 21 U.S.C. § 843(b) (Counts Twenty-Three and Twenty-Four).
The indictment stated that between 2000 and March 2005, Tejeda was a wholesale distributor of cocaine in Aurora, and he obtained and resold cocaine in kilogram and ounce quantities. According to the indictment, Tejeda's co-defendants assisted him. Tejeda, Alviar, Melero, and Madrigal first were members of the Latin Homeboys street gang, and then they became members of the Latin Kings, while Delgado-Rios was part of Tejeda's close family circle. Tejeda relied on his fellow gang members and close family to serve as lookouts, to direct him to customers, to store and transport cocaine and money for him, and to help him steal cocaine from others. The indictment further alleged that Tejeda's gang membership provided his operation with protection from rivals; specifically Alviar and Melero specialized in providing protection through their positions as Latin King enforcers.
Tejeda and Melero moved pretrial to exclude gang membership evidence as unduly prejudicial and of minimal probative value. According to Tejeda, "evidence that defendants are members of the Latin Homeboys or Latin Kings is not especially probative of whether they jointly ventured to distribute drugs to further the criminal interest of the Latin Homeboys or Latin Kings," and "the missing link between the 'gang' and the 'criminal activity' distinguishes this case from other cases where gang evidence was found admissible for the purpose of establishing a joint venture or the existence of a conspiracy."
The government in its consolidated response to defendants' pretrial motions responded that: "[G]ang member-ship in this case is part of the glue that held the charged conspiracy together, and is therefore part-and-parcel of the proof necessary to demonstrate that defendants had a criminal intent and agreement to conspire." The government added that it would present witnesses to testify that "the Aurora Latin King's greatest source of revenue was proceeds from cocaine sales, a fact supported by the conspiracy evidence in this case."
On May 3, 2006, the district court denied defendants' motions to exclude evidence of gang membership without placing restrictions on the prosecution's use of gang-related evidence. On May 9, Delgado-Rios filed a motion objecting on Rule 403 grounds to "[a]dmission of gratuitous gang activities." The court denied the motion without prejudice to raising the same objection at trial.
Defendants' consolidated trial commenced on May 16, 2006. It spanned eleven days. In its opening statement, the government described Tejeda's cocaine trafficking organization and its relation to gangs: "One of the key ways defendant Saul Tejeda protected himself and his drug organization is by joining the Latin Kings street gang in Aurora."
The government introduced testimony of law enforcement officers, lay witnesses, and cooperating defendants. The government had wiretapped a telephone used by Tejeda, and it played 189 calls at trial. It also introduced seventeen undercover recordings made by cooperating witnesses, which documented controlled purchases of one ounce of cocaine from Tejeda on February 4 and February 11, 2004; a sale by Tejeda of 2.8 grams of cocaine on October 5, 2004; two sales of cocaine by Tejeda on October 8, 2004; and a one ounce purchase on November 18, 2004. The recordings documented the possession of two ounces of cocaine by Tejeda and Alviar on February 11, and their attempt to purchase ten kilograms of cocaine on February 15, 2005. They captured Alviar's statement that he was a "hood enforcer" for the Latin Kings and that Melero was the "enforcer."
The government introduced evidence that a search of Melero's house upon his arrest revealed a 9 mm pistol and an SKS assault rifle. Searching Alviar's house, agents discovered drug paraphernalia and over 300 grams of cocaine. There was evidence that, after his arrest, Delgado-Rios stated that he was a money courier for a drug dealer, that he purchased cocaine for personal use, and that he had provided leads for drug robberies.
Cooperating defendant Andy Lopez testified that he was a gang member with Alviar, Melero, Madrigal, and Tejeda, as well as Tejeda's roommate. He testified he had known Tejeda was selling cocaine since at least 2000. He witnessed Tejeda storing quarter-kilograms of cocaine in their apartment, along with guns, a scale, and baggies. Later, Tejeda would store cocaine with Lopez for him to sell. Tejeda additionally rented an apartment for Lopez in which to store cocaine and cash. In June 2004, authorities raided and seized about half a kilogram of cocaine.
Lopez testified that Tejeda had admitted robbing another drug dealer to him. He also testified about a drug robbery he committed with Melero, and about other robberies Melero had attempted. He testified that Madrigal purchased cocaine from Tejeda. Lopez witnessed Tejeda discussing the purchase of cocaine from Delgado-Rios and from Melero. He witnessed Alviar sell two ounces of cocaine to Tejeda. Lopez made a series of recordings with some of the defendants. On cross-examination, Lopez stated that he did not know what the Latin Kings had to do with the drug conspiracy on trial.
Another cooperating defendant, Carlos Escalante, testified that he had known Tejeda since 1998 and Alviar since 2004. Escalante had long been a Latin King, and he testified about the gang and the position of enforcer. According to Escalante, the primary source of income for the Aurora Latin Kings was cocaine distribution. He testified about the takeover of the Latin Homeboys by the Latin Kings. Escalante began selling cocaine upon release from prison in 2004, buying from Tejeda once or twice a week until October 2004. Escalante and Tejeda were intercepted negotiating cocaine transactions; Escalante interpreted the recordings for the jury. Escalante also testified to seeing a handgun, cocaine, and a scale at Tejeda's house.
Cruz Samaniego next testified as a cooperating defendant. Tejeda's cousin, Samaniego had been a member of the Latin Homeboys since 1999. He described how Tejeda was a Latin Homeboy in 1996 and 1997 and how Alviar, Melero, and Madrigal were Latin Kings. Samaniego bought cocaine from Tejeda, Alviar, and Melero. Samaniego and Tejeda were intercepted on the wiretap negotiating cocaine transactions.
Heriverto Rios cooperated and testified that he was a former Latin Homeboy and had known defendants for years. He testified about drug robberies that he had been told about involving Tejeda, Melero, Madrigal, and Delgado-Rios. Rios testified that Tejeda supplied Delgado-Rios with cocaine, and that Alviar, Melero, and Madrigal also sold cocaine.
Under immunity, Carlos Olivares testified he was a Latin King from 1989 through 2004. He stated that a Latin Kings enforcer carries out punishments within the gang and ensures gang members have firearms. He testified that in December 2003 he witnessed Alviar, armed, performing security for a Latin Kings meeting. In March 2004, Olivares recorded a conversation in which Alviar stated that he was the "hood enforcer" and Melero was the enforcer. Olivares recorded Melero acting in that capacity.
Defense counsel objected to gang evidence throughout the trial, which included some 600 references to defendants' Latin Kings associations, and some 100 references to defendants' Latin Homeboys affiliations. DelgadoRios' counsel made the following statement, which is indicative of defense attorneys' objections:
I made a motion in limine regarding the gang violence and activities. And I'm aware that there's several paragraphs in Count One that say the structure of the Latin Kings is being utilized in some fashion. And I argued to your Honor that the structure of the gang is not being used. There's no nation days. There's no- money is not going to any treasurer. . . . We don't have spots where people are manning it 24 hours a day, none of that stuff. Now, today-and we had a little bit of an opening statement and then with this agent. We started going back to like the Latin Kings is some national enterprise that everyone in the world should be afraid of. And he starts out big, you know, at the academy we learned about the Latin Kings, their organization and structure. Well, you know, that is so prejudicial to this group that's in a small-we're going to get a Mapquest, and it's going to be about a half a mile square. That's what this case is about, that half mile square. And I feel rivalries between gangs, shootings between gangs, it's all right to say you're carrying a gun to protect money or drugs, but for protection from other gangs as if there's some kind of struggle in Aurora over drug turf is not in this case. It's extremely prejudicial, Judge. . . .
After some additional back-and-forth, Delgado-Rios's counsel moved for a mistrial. The district court denied defense counsel's motion, but it did address the government: "I don't want these people being, you know, dragged into some sort of national gang conspiracy, because that's not what it is. That's not what you've represented it to be. That's not what you've alleged in the indictment, and it's not what will be admitted in this case."
During Lopez's testimony, counsel objected to testimony about "gang stuff and the gang structure," and to testimony about the role of enforcer. The district court overruled the objection, saying "I know there's a line that can be crossed, and I'll keep my ears open for that. But I haven't seen it yet." The court allowed testimony about the role of enforcer, saying, "It was a pretty general question about rank and what that means, what those terms mean, but without any graphic detail, gratuitous or otherwise . . . ."
In response to an additional objection about testimony regarding gangs and "gang violence," the government explained that the evidence would show "the nature of the relationship between defendants Saul Tejeda and Juan Alviar . . . . Alviar had a particular role in this drug conspiracy, and the role was to protect Saul Tejeda . . . ." The district court overruled the objection and stated, "I think the government should be allowed the opportunity to try to put this mosaic together if they can. And if they can't, we'll deal with that in due course."
Later, in responding to objections about gang evidence, the district court stated that it had already ruled that the evidence would be admitted, but admonished the government to lay a better foundation for the testimony. The court continued, "As far as the gang being part of this case, it is part of this case. It's not in the traditional sense . . . that . . . I have dealt with in some other cases. It is part of this case."
Post-trial, the district court again addressed the gang evidence, stating:
I ruled earlier, and I see no reason to change my ruling now, that this evidence was proper as admitted in this case to show the interrelationship among these defendants, especially since this was a conspiracy case, and the theory of the case was that the gang and the changing from the Home Boys to the Latin Kings by some of the defendants, not all of the defendants[,] was integral to understanding the interrelationship between these defendants. The evidence was limited, and it wasn't introduced for the purpose and didn't in my view unduly prejudice these defendants. The evidence clearly established who was and who wasn't a gang member and what gang they were affiliated with and the extent of the gang activity that related to the charged conspiracy. I don't minimize or belittle the defendants' concern about this. I know this is evidence that could be highly prejudicial if it were not otherwise relevant. I just think it was in this case . . . . [I]t was part of the interrelationship between these people.
The jury returned its verdict on June 19, 2006. Alviar, Madrigal, Melero, Delgado-Rios, and Tejeda were convicted as charged in the second superseding indictment. Between August 9 and August 18, 2006, Alviar, Madrigal, Melero, Delgado-Rios, and Tejeda moved for judgment of acquittal and/or a new trial. The district court denied those motions. The court sentenced appellants on May 24, 2007.
Alviar, Madrigal, Melero, Delgado-Rios, and Tejeda filed notices of appeal. We consolidated defendants' appeals and instructed them to file a joint brief covering common issues, and to file individual supplemental briefs if necessary. In their joint brief, defendants argue that the district court abused its discretion in allowing evidence of gang membership. We address that common issue first. Defendants then raise various other challenges to their trial and sentences in their individual supplemental briefs, which we address in turn, providing additional background information when it is needed.
A. Whether the District Court Abused its Discretion in Allowing Evidence of Gang Membership
Defendants claim that the district court abused its discretion when it: (1) allowed the introduction of unduly prejudicial gang evidence; (2) placed no limits on the introduction of gang evidence; and (3) failed to analyze such evidence under Fed. R. Evid. 404(b).They claim that the court at the pretrial stage overlooked Seventh Circuit case law that such evidence is prejudicial. They continue that during the trial, the court never "made the difficult calls that are required by Fed. R. Evid. 404(b)." Defendants cite several Seventh Circuit cases to support their argument. E.g., United States v. Hardin, 209 F.3d 652, 663 (7th Cir. 2000) ("Charging a drug conspiracy that involves gang members . . . does not give the government carte blanche to splash gang references throughout the trial."); United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996); United States v. Rodriguez, 925 F.2d 1049, 1053 (7th Cir. 1991) ("[E]vidence of membership in a street gang is likely to be 'damaging to [a defendant] in the eyes of the jury.' ") (quoting United States v. Lewis, 910 F.2d 1367, 1372 (7th Cir. 1990)).
The government acknowledges that evidence of gang affiliation may be highly prejudicial, but it argues that such evidence is admissible when relevant to demonstrate the existence of a joint venture or conspiracy and a relationship among its members. The government cites United States v. Suggs, 374 F.3d 508, 516 (7th Cir. 2004), to argue that gang evidence is "particularly relevant" in conspiracy cases, where the relationships of the defendants is a central issue. It claims that the district court did place limits on the gang evidence, and the evidence admitted was not unduly prejudicial. The government also contends that defendants forfeited their Rule 404(b) argument and in any event the gang evidence was not 404(b) evidence.
Our review of the district court's gang evidence decisions is for abuse of discretion. Rodriguez, 925 F.2d at 1053. "We give special deference to a trial judge's evidentiary rulings 'because of the trial judge's first-hand exposure to the witnesses and the evidence as a whole, and because of the judge's familiarity with the case and ability to gauge the impact of the evidence in the context of the entire proceeding.'" United States v. ...