Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 786-John W. Darrah, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before KANNE and SYKES, Circuit Judges, and VAN BOKKELEN, District Judge.*fn1
Saul Sanchez was convicted of conspiracy and attempted kidnapping in violation of 18 U.S.C. § 1201(a)(1), (c), and (d), and conspiracy to retaliate against a witness in violation of18 U.S.C. § 1513(e) and (f). The convictions arose out of a plot to kidnap Ignacio Vega and Maria Jimenez, who were witnesses in a trial against a Chicago-based drug kingpin. On appeal Sanchez argues that the district court erroneously admitted substantial evidence about the underlying uncharged drug conspiracy. He also contends that the evidence was insufficient to sustain any of his three convictions. Finally, Sanchez challenges his sentence.
We affirm in part and reverse in part. The district court did not abuse its discretion in admitting evidence regarding the underlying uncharged drug-trafficking conspiracy; this evidence was highly probative of Sanchez's motive for orchestrating the kidnapping. We also conclude that the evidence is sufficient to sustain Sanchez's convictions for conspiracy to kidnap and attempted kidnapping. But the same cannot be said of his conviction for conspiracy to retaliate against a witness. The government presented no evidence, circumstantial or otherwise, that Sanchez knew the two targets of the kidnapping plot had given testimony against the drug trafficker for whom Sanchez was purportedly working; the evidence suggested instead that Sanchez thought the targets owed the drug kingpin money. Accordingly, we vacate Sanchez's conviction on the retaliation count and remand for resentencing. As an independent ground for resentencing, the district judge erroneously withheld a three-level reduction under U.S.S.G. § 2X1.1(b)(1) because he mistakenly concluded that Sanchez was "about to complete" the kidnapping.
Luis Vasquez was the ringleader of a Chicago-based drug-trafficking cell and in 2004 became the subject of a law-enforcement investigation when federal agents learned that Jose Jimenez had ordered several kilograms of cocaine from Vasquez on credit.*fn2 Agents seized the cocaine from a stash house Jimenez used and made it appear as though Jimenez had been the victim of the burglary. When Vasquez demanded payment for the lost cocaine, Jose Jimenez approached his cousin Maria Jimenez and her husband Ignacio Vega for help. The couple owned two Chicago restaurants named "Yolanda's," and they agreed to transfer one of the restaurants to Vasquez as partial payment for Jose's debt. The transfer never occurred. Vasquez was arrested, and both Vega and Maria Jimenez testified against Vasquez at his November 2005 trial for drug trafficking, money laundering, and other related offenses.
Almost a year later, on October 10, 2006, Saul Sanchez and a coconspirator approached a confidential informant named Francisco Jimenez and asked for assistance in kidnapping two individuals and taking them to Mexico. Sanchez identified the kidnapping targets as "Jimenez" and someone named "Yolanda" who owned a restaurant at 31st Street and Lawndale Avenue in Chi- cago. Sanchez was actually referring to Ignacio Vega and Maria Jimenez, who owned the Yolanda's restaurants, one of which was located just blocks from the intersection Sanchez had identified. Sanchez explained to Francisco that he was kidnapping the two individuals on Vasquez's behalf because he believed that they owed Vasquez money. Sanchez asked Francisco for $25,000 to finance the kidnapping. When Francisco said he did not have that much money, Sanchez dialed back his request and asked for help in securing a minivan and a safehouse to use in the kidnapping.
Francisco Jimenez agreed to help Sanchez but instead contacted federal agents and offered to assist them in interrupting the kidnapping plot. The agents secured wiretap authority and recorded many of Sanchez's conversations, including several in which he discussed his progress in bringing the kidnapping plot to fruition. The wiretap authorization also permitted the FBI to track the cellular towers on which Sanchez's phone calls were hitting. During the ensuing several weeks, Sanchez's call history revealed that his phone was hitting on cell towers located in Laredo, Texas-on the Mexican border-and cell towers elsewhere in Texas, Oklahoma, and southern Illinois. Based on these phone calls, federal agents decided the time had come to arrest Sanchez. They arranged for a minivan to be placed in a garage at an undercover house in Burbank, Illinois, outside of Chicago. Francisco Jimenez called Sanchez to tell him he had secured a van fitting his specifications.
Sanchez and his coconspirator made arrangements to inspect the van. They met Francisco Jimenez at a prearranged location in Chicago and proceeded from there to the Burbank garage where the FBI had placed the van. Surveillance continued, and Sanchez inspected the van and confirmed that it met his needs. He then discussed various details of the kidnapping plot. He told Francisco that he had located a horse ranch in Joliet, Illinois, where he planned to take the kidnapping victims before continuing on to the Mexican border, at which point he would turn them over to members of a drug cartel who would take them to Sinaloa, Mexico. But Sanchez said he could not take the van with him that day because it did not have any license plates. He said he would need about a week to secure usable plates. As Sanchez and the coconspirator left the garage, the FBI moved in and made the arrest.
Sanchez was indicted on three counts: (1) conspiracy to kidnap, 18 U.S.C. § 1201(a)(1), (c); (2) attempted kidnapping, 18 U.S.C. § 1201(a), (d); and (3) conspiracy to retaliate against a witness in violation of 18 U.S.C. § 1513(e) and (f). Sanchez was convicted by a jury on all three counts, and the district court sentenced him to concurrent terms of 218 months in prison on the first and second counts and 120 months on the third count.
Sanchez raises multiple challenges to his convictions and sentence, which we can group into three categories. First, he maintains that the district court should not have allowed the government to introduce evidence of Vasquez's drug activities or at least should have limited the quantity of this evidence under Rule 403 of the Federal Rules of Evidence. Second, Sanchez challenges the sufficiency of the evidence to support each of his three convictions. ...