Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 784-1-Samuel Der-Yeghiayan, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before FLAUM, EVANSand TINDER, Circuit Judges.
A jury convicted Adalberto Santiago of conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2, and of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On each count, the district court sentenced Santiago to the 240-month mandatory minimum for offenses involving 50 grams or more of a mixture containing cocaine base. See 21 U.S.C. § 841(b)(1)(A)(iii). The court ordered that the sentences run concurrently. Santiago appeals his conviction on two grounds: that the district court erroneously admitted gang affiliation evidence under Federal Rule of Evidence 403, and that the government presented insufficient evidence to establish that the substance at issue was "cocaine base" for purposes of § 841(b)(1). For the following reasons, we affirm.
In 2002, the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and the Cook County Sheriff's department were in the midst of a three-year joint investigation into the Spanish Cobra street gang in Chicago. ATF case agent David Gomez coordinated that investigation, which targeted a number of Spanish Cobra members, including Felipe Padilla.
In September of 2002, Agent Gomez directed a confidential informant known as "Suave," a former Spanish Cobra himself, to arrange a drug deal with Padilla. During that transaction, which occurred on September 26, 2002, Agent Gomez posed as a suburban drug dealer named "Loquito." The original plan, as negotiated by Suave and Padilla, was for Agent Gomez and Suave to purchase four and a half ounces of crack cocaine from Padilla at Padilla's home. But, on the day of the deal, Padilla changed the location to a K-Mart parking lot, explaining that "Sabu" had the drugs there.
It is undisputed that Santiago's nickname is Sabu. At Santiago's trial, Agent Gomez testified that, as part of the Spanish Cobra investigation, he had learned the identities of various Spanish Cobras by viewing photos of them and learning their nicknames. Therefore, when Padilla mentioned Sabu, Agent Gomez understood him to be referring to Santiago.
Agent Gomez and Suave drove to the K-Mart in Agent Gomez's vehicle, which was equipped with a camera and microphones. Numerous audio and video recordings from those devices were admitted at Santiago's trial. Padilla met Agent Gomez and Suave in the parking lot in his own vehicle, and told them that Sabu would be driving a green van. About an hour later, Agent Gomez observed a green van drive into the parking lot. He testified that, despite the fact that the van parked several car lengths away, he recognized the driver as Santiago.
Padilla got out of his vehicle and went to the window of the green van to speak with the driver. Padilla then walked over to Agent Gomez's vehicle, and spoke with Agent Gomez and Suave. That conversation was recorded by the microphones in Agent Gomez's vehicle, and a recording of it was played at trial. During the conversation, Padilla told Agent Gomez and Suave that they needed either to accompany Sabu to another location to get the drugs, or to give Sabu the money up front and he would go get the drugs. When Agent Gomez rejected those options, Padilla said "ya know he ain't gonna burn me man, right? That's Cobra folk. How the fuck you gonna burn Cobra folk?" At the trial, Agent Gomez explained that he understood Padilla to be saying that members of the Spanish Cobras would not rip each other off, and therefore they could trust Sabu. Despite that reassurance, Agent Gomez refused. Eventu-ally, the green van left to get the drugs. The van returned about 15 minutes later, and again, according to his testimony, Agent Gomez was able to identify the driver as Santiago.
Padilla went over to the green van and exchanged $2,750 in cash for the drugs. Agent Gomez, Suave, and Sabu remained in their respective vehicles. Therefore, no images or recordings of Sabu were captured by the devices in Agent Gomez's vehicle. When Padilla returned to Agent Gomez's vehicle, he handed a package to Suave and said that the drugs were "cooked, fresh off the lamb." Agent Gomez testified that he understood Padilla to be saying that the substance was crack cocaine.
Agent Gomez and Suave then drove away. At that point, Suave said that the green van was a Chevrolet Express, and Agent Gomez agreed. Suave also said he had observed the van's license plate number. Agents later obtained certified vehicle records indicating that that license plate belonged to a blue 1996 GMC Savana, which was registered to Santiago and his girlfriend, Mayra Hernandez. Agent Gomez testified that the 1996 GMC Savana and the 1996 Chevrolet Express have very similar body types.
About two years later, on September 2, 2004, Santiago was charged in a two-count indictment for his alleged involvement in the September 26, 2002 transaction. Count One charged Santiago with conspiracy to possess with intent to distribute and to distribute 121.3 grams of mixtures containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Count Two charged him with distribution of 121.3 grams of mixtures containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). On October 27, 2004, Santiago was charged in a superseding indictment, which added Padilla to each count.
In May 2006, the government discovered that the drugs from the September 26, 2002 transaction had been destroyed. Santiago filed a motion to dismiss the indictment based on the unavailability of the drug evidence, which the district court denied. On January 8, 2007, Santiago filed a motion in limine to bar the introduction of evidence concerning his gang affiliation, arguing that such evidence was not relevant under Federal ...