United States v. Saul Tejeda

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JUAN A LVIAR, R ODOLFO M ADRIGAL, JOSE M ELERO ,

A POLINAR D ELGADO-R IOS, and S AUL T EJEDA,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 194—Robert W. Gettleman, Judge.

A RGUED A PRIL 15, 2009—D ECIDED JULY 23, 2009

Before F LAUM, R IPPLE, and S YKES, Circuit Judges.

F LAUM, Circuit Judge. Saul Tejeda, Juan Alviar, Jose

Melero, Rodolfo Madrigal, and Apolinar Delgado-Rios

were among a group of individuals indicted in connec-

tion 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;

2 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

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.

I. Background

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 laun-

dering 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

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 3

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 viola-

tion 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 in-

dictment, 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 look-

outs, 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 pro-

tection from rivals; specifically Alviar and Melero special-

ized 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 mini-

mal probative value. According to Tejeda, “evidence that

4 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

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 estab-

lishing a joint venture or the existence of a conspiracy.”

The government in its consolidated response to defen-

dants’ 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 gov-

ernment 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 with-

out 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

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 5

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 enforce-

ment 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 Novem-

ber 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 kilo-

grams 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

6 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

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 wit-

nessed 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

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 7

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 defen-

dant. 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 defen-

8 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

dants’ Latin Kings associations, and some 100 references

to defendants’ Latin Homeboys affiliations. Delgado-

Rios’ 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

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 9

defense counsel’s motion, but it did address the govern-

ment: “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 testi-

mony about the role of enforcer. The district court over-

ruled 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 oppor-

tunity 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 gov-

10 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

ernment 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 con-

spiracy 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 con-

victed as charged in the second superseding indictment.

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 11

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.

II. Analysis

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 neces-

sary. 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

12 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

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 demon-

strate 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 defen-

dants 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 eviden-

tiary rulings ‘because of the trial judge’s first-hand expo-

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 13

sure 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. Hernandez, 330

F.3d 964, 969 (7th Cir. 2003) (quoting United States v.

Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998)).

We have recognized there is “substantial risk of unfair

prejudice attached to gang affiliation evidence,” but

“under appropriate circumstances, gang evidence has

probative value warranting its admission over claims of

prejudice.” Irvin, 87 F.3d at 864. In the Seventh Circuit,

“[e]vidence of gang affiliation is admissible in cases in

which it is relevant to demonstrate the existence of a

joint venture or conspiracy and a relationship among its

members” and each defendant’s knowledge of and partici-

pation in the drug conspiracy. United States v. Westbrook,

125 F.3d 996, 1007 (7th Cir. 1997). “Gang affiliation is

particularly relevant, and has been held admissible, in

cases where the interrelationship between people is a

central issue” such as in a conspiracy case. United States

v. Thomas, 86 F.3d 647, 652 (7th Cir. 1996) (affirming

ruling allowing gang evidence because that evidence

“helped demonstrate the existence of the conspiracy

and the connections between members of the conspiracy”);

see also United States v. Sargent, 98 F.3d 325, 328 (7th Cir.

1996) (“[G]ang membership can be key to establishing

criminal intent or agreement to conspire.”).

In this case, the evidence that the government sub-

mitted was relevant to proving the conspiracy allegations

set forth in the indictment. The evidence established

14 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

that Tejeda was a drug dealer who employed a network of

associates to obtain and to distribute the drugs, and that

the majority of individuals that made up the network

were in the Latin Homeboys and/or the Latin Kings

with Tejeda. For example, the evidence established that

Alviar and Melero had been Latin Homeboys with Tejeda,

and later became Latin Kings with Madrigal and him. The

fact that these four individuals were bound together by

their gang membership made it more likely that they

participated in a conspiracy. Testimony also established

a link between gang membership and protection. While

Tejeda once had expressed concerns about being robbed,

after he became a Latin King, he did not express the

same concerns. The evidence supported the argument

that he no longer was concerned because Alviar and

Melero, as Latin King enforcers, provided protection.

Madrigal cites United States v. Avila, 465 F.3d 796, 798 (7th

Cir. 2006), to argue that the government and the district

court confused evidence of membership in the gang

with evidence of membership in the conspiracy. In that

case, there was “negligible evidence” that the defendant

belonged to a gang, but even if the defendant was a gang

member, there was “no evidence” that he was a part of

the conspiracy; the trial court erred in assessing his rele-

vant conduct based on gang membership alone. Here, by

contrast, the government elicited testimony to show that

Tejeda’s drug trafficking operation used gang members

in certain defined roles. The government did not

simply equate any membership in the gang with being a

co-conspirator. The government’s use of gang evidence

was not improper in the instant case.

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 15

Defendants argue that, even if it was proper for the

district court to admit some gang evidence, the court

should have placed additional limits on the gang

evidence that the government sought to introduce. They

claim that the court permitted the government to do

much more than simply “complete the story” of how the

defendants came to know each other. For example, defen-

dants argue that the court should have limited the evi-

dence so that the government did not mention specific

gang names or launch into a litany of violent acts both

by and against the defendants.

As a preliminary matter, we note that the district court

in fact did place certain limits on the gang evidence. In

some instances, the court kept out gang evidence that

was either irrelevant or unduly prejudicial. For example,

when the government sought to admit a table bearing

gang graffiti recovered from Melero’s basement, the

court barred its admission. When the government elicited

testimony from an FBI case agent that of the hundreds of

witnesses he had interviewed “virtually all” had tied the

gang’s activities to drug dealing, the court sustained an

objection and instructed the jury to disregard the an-

swer. When the government elicited testimony from

Escalante about Latin Kings’ drug dealing, the court

allowed Escalante to testify to the gang’s activities when

he was involved, while sustaining objections to testimony

about gang activities while he was incarcerated. The

court admonished the government to elicit a specific

foundation for testimony about gang activities: “They’re

holding you to your proof. You know, they haven’t held

you to . . . the letter of the rules of evidence for every-

16 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

thing in this case, but this time they are. This is a very

sensitive subject, and I think you have to lay the founda-

tion properly when you ask him or anybody else in this

case for this type of testimony.”

The evidence that the district court admitted was proba-

tive of defendants’ roles in the Tejeda drug organization.

Even the evidence of Latin King handshakes, symbols,

colors, and tattoos tended to establish gang membership

or affiliation, and it was proper for the government to

prove gang membership as part of the conspiracy. Thus,

we do not conclude that the court abused its discretion

when it did not further limit the government’s evidence.

Finally, defendants’ argument that the district court

failed to analyze the gang evidence under Rule 404(b) was

forfeited, as it was never raised below, and we review it

for plain error. United States v. LeShore, 543 F.3d 935, 939

(7th Cir. 2008). The contested evidence proved specific

portions of the indictment. It did not concern “other

crimes, wrongs or acts,” but it concerned the charged

crime. When evidence is embraced by the conspiracy in

the indictment, the court need not resort to Rule 404(b)

analysis. “Rule 404(b) is inapplicable where the ‘bad acts’

alleged are really direct evidence of an essential part of

the crime charged.” United States v. Lane, 323 F.3d 568, 579

(7th Cir. 2003). The gang evidence was not actually Rule

404(b) evidence, and the court did not commit plain

error when it did not analyze the evidence under

Rule 404(b).

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 17

B. Whether the district court properly refused to

sever defendant Madrigal, who was indicted as a

co-conspirator.

On August 18, 2005, Madrigal filed a motion for sever-

ance and a separate trial under Fed. R. Crim. P. 14, arguing

that he would be prejudiced by undergoing a trial where

there was “a gross disparity in both the amount and type

of evidence against Madrigal vis-a-vis his co-defendants.”

A joint trial, Madrigal claimed, would be “fundamentally

unfair.” The government filed its response on the sever-

ance issue on February 10, 2006. On May 10, in its

Pretrial Hearing Order, the district court denied

Madrigal’s motion for severance.

Madrigal appeals denial of his severance motion. He

argues that the district court should have severed him

because of: (1) “spillover” of the government’s evidence;

(2) prejudicial effect of inflammatory evidence of racial

slurs by defendants; (3) prejudicial gang membership

and violence evidence; and (4) “other crimes” and

weapons evidence only relevant to other defendants.

Madrigal never renewed his motion at the close of the

evidence. According to our case law, unless a motion to

sever is renewed at the close of the evidence, it generally

is waived. See United States v. Rollins, 301 F.3d 511, 518

(7th Cir. 2002). A waiver of this nature would preclude

appellate review of any kind. See United States v. Olano, 507

U.S. 725, 733 (1993). However, the failure to renew a

motion to sever may be excused if the defendants can

“demonstrate that refiling [the motion to sever] would

have been . . . futile.” United States v. Caudill, 915 F.2d 294,

18 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

298 (7th Cir. 1990). Madrigal does not explicitly argue that

renewing the motion to sever would have been futile, but

he does state: “[C]ontrary to the government’s claim

that the issue was not preserved by a renewed motion at

the close of the evidence, the district court had been

apprised of the issue for so long, both before and during

the trial, the district court had to be fully aware that

severance was still a viable, pending issue for Madrigal

which could still be remedied by spinning his separate

trial off to another occasion.” In this case, the defense

constantly challenged the admission of gang-related

evidence—before, during, and after trial—on the grounds

that it was prejudicial. One more motion may have

been futile, but we need not decide whether Madrigal’s

motion to sever was waived, as our answer to that

question is not outcome determinative.

Even if Madrigal’s entire motion to sever was not

waived, his second, third, and fourth arguments on appeal

are forfeited. Madrigal never argued below that the district

court should have severed him because of (2) the prejudi-

cial effect of other defendants’ use of racial slurs on the

wiretap recordings; (3) the prejudicial nature of the gang

evidence introduced at trial; and (4) the prejudicial effect

of certain evidence against Alviar, Melero, and Renteria.

We review arguments (2), (3), and (4) for plain error.

We review argument (1), that the district court should

have severed him because of the spillover effect from

evidence against co-defendants, for abuse of discretion.

See United States v. McClurge, 311 F.3d 866, 871-72 (7th

Cir. 2002).

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 19

In all but the “most unusual circumstances,” the risk of

prejudice arising from a joint trial is “outweighed by the

economies of a single trial in which all facets of the

crime can be explored once and for all.” United States v.

Velasquez, 772 F.2d 1348, 1352 (7th Cir. 1985). There is a

strong preference that co-conspirators be jointly tried,

particularly when they were indicted together. See United

States v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003). Joint

trials “promote efficiency and ‘serve the interests of

justice by avoiding the scandal and inequity of incon-

sistent verdicts.’” Zafiro v. United States, 506 U.S. 534, 537

(1992) (quoting Richardson v. Marsh, 481 U.S. 200, 209-10,

(1987)). A district court has discretion to sever counts or

defendants for trial. Fed. R. Crim. P. 14(a). We will over-

turn a denial of a motion to sever only if actual prejudice

resulted. Souffront, 338 F.3d at 831.

Madrigal’s first argument relates to the spillover effect

of the evidence against his co-defendants. He claims that

the district court overlooked the “massive amount” of

evidence, witness testimony, and intercepted telephone

call trial evidence targeted at proving the guilt of his

co-defendants to his prejudice. But the fact that the gov-

ernment has greater evidence against one co-defendant

does not automatically give the other defendant grounds

for severance. United States v. Studley, 892 F.2d 518, 524

(7th Cir. 1989). Given that Madrigal was charged in a

conspiracy with his co-defendants, most evidence

offered at trial would have been admissible in a trial

against him alone. The jury was instructed to consider

each defendant separately. It did so and convicted Madri-

gal of a lesser drug quantity than his co-defendants. There

20 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

was no actual prejudice to Madrigal on account of

“spillover” evidence because the jury distinguished

between him and his co-defendants. United States v.

Thompson, 286 F.3d 950, 968 (7th Cir. 2002).

One of Madrigal’s forfeited arguments is that he

should have been severed because the tape recordings

showed that defendants used variations of the “N” word

when speaking. Madrigal argues that the remarks were

“racially offensive,” and that his co-defendants used the

terms more than he did. But, as the district court stated, the

use of the terms “occurred during the conversations, and

it was the manner in which they spoke to each other

during the pertinent conversations.” The court found

that the terms were not meant to be racially offensive.

The court also concluded it would not have been feasible

to redact offensive words from hundreds of recordings. It

was not plain error for the court not to sever Madrigal

based on defendants’ use of those words in recorded

conversations. He did not suffer actual prejudice, as

there was ample evidence against Madrigal and the

jury was properly instructed to distinguish between

co-defendants. Similarly, Madrigal’s additional arguments

do not demonstrate that the district court plainly erred

when it denied Madrigal’s motion to sever.

C. Whether the district court properly accepted the

government’s Santiago proffer.

Delgado-Rios raises a claim related to the government’s

Santiago proffer. Under Fed. R. Evid. 801(d)(2)(E), a

“statement is not hearsay if . . . [t]he statement is offered

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 21

against a party and is . . . a statement by a coconspirator of

a party during the course and in furtherance of the con-

spiracy.” In United States v. Santiago, 582 F.2d 1128, 1130-31

(7th Cir. 1978), we decided that when a statement of a

co-conspirator which otherwise would be regarded as

hearsay is proffered by the government, Fed. R. Evid.

104(a) requires that the district court make a preliminary

determination regarding the admissibility of the declara-

tion. We made clear that as a condition for admission of

such statements, the government must convince the

court, by a preponderance of the evidence, that (1) a

conspiracy existed, (2) the defendant and the declarant

were members of the conspiracy, and (3) the statement(s)

sought to be admitted were made during and in further-

ance of the conspiracy. Id. at 1133-34; see also United States

v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). The government

may submit evidence of these elements in a pre-trial

proffer, and the district court may admit the statement(s)

subject to its later determination during trial that the

government has established by a preponderance of the

evidence the three foundational elements. Santiago, 582

F.2d at 1131. These evidentiary submissions are known

as “Santiago proffers.”

Delgado-Rios argues that the district court erred by

accepting a “woefully inadequate” Santiago proffer. He

claims the proffer was “in the most general terms” and

“perfunctory.” Findings under Fed. R. Evid. 801(d)(2)(E)

based on a Santiago proffer are reviewed for clear error.

United States v. Rodriguez, 975 F.2d 404, 411 (7th Cir. 1992).

The government’s written proffer contained a preview of

the evidence as to all defendants, including Delgado-Rios.

22 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

The proffer summarized cooperator Lopez’s anticipated

testimony, stating Lopez “knew co-defendant Apolinar

Delgado-Rios to buy cocaine from Tejeda and resell it.

Lopez also knew Tejeda to front cocaine to Delgado-Rios.

Lopez also knew Delgado-Rios to pass along information

to Tejeda about who was storing cocaine and where it

was being stored so that Tejeda and others could commit

drug robberies, in exchange for a portion of the robbery

proceeds.” The proffer summarized Rios’s testimony that

“Tejeda distributed a minimum of two ounces of cocaine

to co-defendant Apolinar Delgado-Rios . . . at least three

times a month. Rios also saw Delgado-Rios resell the

cocaine he bought from Tejeda to other persons.” The

proffer included summaries of calls that recorded

Delgado-Rios and Tejeda carrying out their drug busi-

ness. Based on the information in the proffer, the district

court did not commit clear error in concluding that the

government had met by a preponderance of the evidence

the preconditions for admission of co-conspirator state-

ments.

D. Whether the district court committed plain error in

allowing Agent Camacho to testify about the

prior consistent statement of a witness who was

alleged to have fabricated testimony about

Delgado-Rios.

Delgado-Rios next raises his first evidentiary error claim.

Cooperating witness Rios had testified that Delgado-Rios

had complained about being unsatisfied with his take

from a drug robbery that Delgado-Rios had tipped Tejeda

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 23

and others about. Rather than cross-examining Rios on

that point, Delgado-Rios attempted to impeach Rios by

calling Agent Larissa Camacho, one of the case agents, to

testify about an interview that she conducted with Rios.

Camacho’s report reflected that Rios had said that his

brother, Miguel Rios, expressed dissatisfaction with his

take from the robbery, and not that Rios mentioned

Delgado-Rios was unsatisfied.

On cross-examination of Camacho, the prosecution

elicited the fact that Rios had mentioned Delgado-Rios

to Camacho in addition to Miguel Rios, although

Camacho’s report did not reflect that fact. Delgado-Rios

objected that this fact was “already testified to by the

witness, Rios.”

Delgado-Rios now argues on appeal that Camacho’s

testimony about the interview of Rios was improper

hearsay, that it erroneously allowed her to “impeach

her own report,” and that it introduced inadmissible

opinion evidence about the veracity of Rios. These objec-

tions were not raised below, so we review for plain

error. Rollins, 544 F.3d at 834.

Prior consistent statements that are offered to rebut a

charge of recent fabrication or improper influence or

motive are not hearsay. Fed. R. Evid. 801(d)(1)(B); Tome v.

United States, 513 U.S. 150, 157-58 (1995). Such state-

ments are admissible if they satisfy a four-part test: (1)

the declarant testifies at trial and is subject to cross-

examination; (2) his prior statement is indeed consistent

with his trial testimony; (3) the statement is offered to

rebut an explicit or implicit accusation of recent fabrica-

24 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

tion; and (4) the statement was made before the declarant

had a motive to fabricate. United States v. Ruiz, 249

F.3d 643, 647 (7th Cir. 2001).

Rios’s prior statement to Camacho satisfies the test. His

statement was consistent with his trial testimony and

was used to rebut Delgado-Rios’s implied charge that

Rios had fabricated his testimony. There is no indication

that Delgado-Rios was prevented from recalling Rios

for cross-examination about the assertions attributed to

Rios by Camacho, and because those assertions meet the

other requirements for admission under Rule 801(d)(1)(B),

the district court did not commit plain error in allowing

Camacho’s statement.

E. Whether the district court erred in allowing

Delgado-Rios’s mother-in-law to testify that he

possessed cocaine.

Delgado-Rios next argues that the district court erred

when it allowed prejudicial testimony from his

mother-in-law, Metsi Thomas. Thomas testified to two

incidents. Following Delgado-Rios’s arrest, she found

cocaine “in the battery compartment of an object.” And

Delgado-Rios once handed her a cellphone concealing

cocaine. Both incidents occurred during the charged

conspiracy. The court did exclude testimony that the

“object” in the first incident was a child’s toy, but the

court permitted Thomas to testify that Delgado-Rios did

not have a regular job and that he tricked agents who failed

to locate cocaine hidden in the battery compartments of the

cellphone and the object. Delgado-Rios objected to testi-

mony related to the first incident, but not to the second, so

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 25

we review admission of testimony on the first incident for

abuse of discretion, and admission of testimony on the

second for plain error.

Thomas’s testimony, which focused only on incidents

that occurred during the conspiracy, was relevant to prove

Delgado-Rios’s participation in the conspiracy. The

testimony helped prove that Delgado-Rios had access to

cocaine. There was separate evidence that Delgado-Rios

was in contact with Tejeda to supply him with cocaine.

Having addressed the possible prejudice from the fact that

drugs were concealed in a toy on one occasion, the district

court did not abuse its discretion or commit plain error by

allowing testimony directly relevant to the conspiracy.

F. Whether the prosecutor improperly vouched for

witnesses or improperly referenced facts not pre-

sented to the jury.

Delgado-Rios next argues that the government improp-

erly vouched for its witnesses and improperly referenced

facts not presented to the jury.

First, he argues that it was improper for the prosecutor

to elicit testimony from cooperating witnesses about their

“need to give truthful testimony in order to maintain the

benefits of the witness’ plea bargain.” We have concluded

that the “prosecution is entitled to get into evidence the

fact that [plea] deals are conditioned upon truthful testi-

mony.” United States v. Thornton, 197 F.3d 241, 251-52 (7th

Cir. 1999). Two types of “vouching” are forbidden: a

prosecutor may not express her personal belief in the

truthfulness of a witness, and a prosecutor may not

26 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

imply that facts not before the jury lend a witness credi-

bility. United States v. Renteria, 106 F.3d 765, 767 (7th Cir.

1997). Neither type was committed here. We did caution

in Thornton that “for more than a decade we have been

warning prosecutors to ‘avoid unnecessarily repetitive

references to truthfulness if it wishes to introduce the

agreements into evidence. . . .’ [P]rosecutors should

consider refraining from introducing the documents

into evidence and rely instead on testimony sum-

marizing the agreement.” Thornton, 197 F.3d at 253 (quot-

ing United States v. Lewis, 110 F.3d 417, 421 (7th Cir. 1997)).

In this case, the government did not even introduce

the plea agreements themselves. It merely elicited testi-

mony, which does not constitute error.

Delgado-Rios argues that the government improperly

vouched for its cooperating witnesses when it referenced

the plea deal conditions in its closing argument to the

jury. The prosecutor stated:

More important, these witnesses told you that if they

lied, they jeopardized the deal that they had with

the government. And where they did lie, where they

have told inconsistent statements, they have ad-

mitted it to you. So you have all of these tools avail-

able to you to evaluate their testimony, the fact

that they’re corroborated, the fact that they have no

motivation to lie, and the fact that they have been

honest as they came into this courtroom. They did

their best, and they tried to tell the truth.

The comments made here focus on the incentives pro-

vided by defendant’s plea agreement for him to tell the

truth. They resemble a similar argument about a plea

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 27

agreement that we accepted in Renteria. There, we con-

cluded that “the prosecutor was free to invite the jury to

draw a particular inference from [the plea agreement].

Defense counsel was free to urge a competing inference,

as he did on numerous occasions. By arguing as they

did, both sides respected the jury’s ability to evaluate

credibility based on the facts in evidence.” Renteria, 106

F.3d at 766-67 (internal citations omitted). The prosecutor

here did not express a “personal belief,” and we con-

clude that the prosecutor’s statement was not improper

vouching.

Delgado-Rios also argues that the prosecutor implied

that facts not before the jury lent a witness credibility.

First, he cites the prosecution’s argument that Delgado-

Rios was guilty of the conspiracy based on wiretapped

calls: “You also know that he was in the conspiracy first

from the phone calls, 20 phone calls from the wiretap, 916,

930, 932, 938, and so on. . . . These are only some of the

calls among the calls that were recorded in which Saul

Tejeda and Apolinar Delgado-Rios discuss cocaine traf-

ficking.” The prosecution later clarified that it was refer-

ring the jury to consider only “the phone calls that

were played in court.” The government argues that its

references to additional phone calls did not include an

improper reference to evidence outside the record; it

was an inartful way of saying that calls 916, 930, 932,

and 938 were “only some of the calls among the calls that

were recorded.” We “must not lightly assume that ‘a

prosecutor intends an ambiguous remark to have its

most damaging meaning or that a jury, sitting through

a lengthy exhortation, will draw that meaning from the

plethora of less damaging interpretations.’ ” United States

28 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

v. Rose, 12 F.3d 1414, 1424 (7th Cir. 1994) (quoting Boyde

v. California, 494 U.S. 370, 385 (1990)). We cannot con-

clude that this statement about phone calls constituted

improper vouching.

Finally, Delgado-Rios argues that another remark made

by the government in closing was improper vouching:

“You heard then from only four customers of this con-

spiracy. As with the phone calls, we didn’t present you

with 100 percent of the evidence, because we would still

be listening to testimony from cooperating witnesses.”

The government concedes that this statement was im-

proper because it refers to evidence not presented to the

jury as supporting conviction. With this concession, we

examine the record as a whole to decide whether

Delgado-Rios was prejudiced by the prosecutor’s inap-

propriate remark so that his trial was fundamentally

unfair. Our inquiry into the prejudice is informed by

several factors, including: “(1) the nature and serious-

ness of the prosecutorial misconduct, (2) whether the

prosecutor’s statements were invited by impermissible

conduct by defense counsel, (3) whether the trial court

instructed the jury to disregard the statements, (4) whether

the defense was able to counter the improper arguments

through rebuttal, and (5) the weight of the evidence

against the defendant.” United States v. Pirovolos, 844

F.2d 415, 426 (7th Cir. 1988) (reciting the factors outlined

in Darden v. Wainwright, 477 U.S. 168, 181-83 (1986)).

The improper remark made by the government was

serious and the district court did not issue instructions to

the jury to disregard the statement. However, defense

counsel had an opportunity to refute the prosecution’s

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 29

comment in its own closing argument and the prosecu-

tion did not reference that statement again in its rebut-

tal. More importantly, the overwhelming evidence

of Delgado-Rios’s guilt “eliminates any lingering doubt

that the prosecutor’s remarks unfairly prejudiced the

jury’s deliberations or exploited the Government’s

prestige in the eyes of the jury.” United States v. White,

222 F.3d 363, 371 (7th Cir. 2000) (quoting United States

v. Young, 470 U.S. 1, 19 (1985)). We conclude that the

government’s improper remark did not render Delgado-

Rios’s trial fundamentally unfair.

G. Whether the district court properly allowed testi-

mony that Tejeda was a felon.

Tejeda argues that the district court erred in allowing

evidence that he was a convicted felon. His attorney

objected, and we review for abuse of discretion.

Sergeant Johnson testified that on October 12, 2004,

he participated in a search of a house Tejeda shared

with his girlfriend, Adrianne Potochney. Tejeda was not

home. Authorities recovered a box of ammunition. On

cross-examination, defense counsel asked:

Q: It’s not illegal to keep ammunition in the house, is

it?

A: It is in certain circumstances, yes.

Q: Is there a law in Aurora that it’s illegal to keep

ammunition in a house?

A: There is a state law that forbids possession of

firearms and ammunition by felons.

30 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

Q: Is Adrianne Potochney, is she a felon?

A: Not that I’m aware of.

On redirect, the government asked:

Q: You were asked if Adrianne Potochney was a

convicted felon?

A: Yes, I was.

Q: Is there anyone else who lived in the residence at

1000 Superior Street who was a convicted felon?

DEFENSE COUNSEL MR. NEELY: Objection, Your

Honor.

A.U.S.A.: Judge, I do believe that Mr. Neely opened

the door.

Mr. NEELY: I don’t think that I did.

THE COURT: Overruled.

A: I believe Saul Tejeda was a felon.

The government argues on appeal that defense counsel

did open the door, justifying the district court’s decision

to admit the testimony at issue. The defense argues

the decision was improper.

In United States v. Draiman, we wrote that “opening the

door” is a risk that a defense counsel assumes “when a

calculated effort is made to tiptoe over thin ice to gain

some evidentiary advantage. It also can be a delicate

situation for the trial court’s exercise of discretion so as

not to permit undue prejudice to the defendant merely

to correct some possible jury impression that may be

of no lasting consequence.” We continued: “The govern-

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 31

ment . . . does not have to turn the other cheek when

it has the explanation to defense-created misim-

pressions. The trial court needs to use its seasoned trial

experience in a common sense, realistic consideration of

the problem.” 784 F.2d 248, 255 (7th Cir. 1986).

Here, Tejeda argues that the cross-examination high-

lighted “the fact that Tejeda’s girlfriend was in pos-

session of the premises at the time of the search” and that

the search did not result in her arrest. According to

Tejeda, he was “not attempting to place some inno-

cent gloss on Tejeda’s possession of ammunition.” If he

wanted to focus on the girlfriend, however, Tejeda

would not have asked about the legality of possession of

ammunition. By doing so, Tejeda opened the door some-

what, and the government sought to clear up the de-

fense-created misimpression. The district court exer-

cised its discretion and admitted the testimony. The

government did not dwell on the answer, either by at-

tempting to go into details about Tejeda’s prior convic-

tion or by arguing the conviction in its closing argu-

ment. We cannot conclude that the trial judge abused his

discretion.

H. Whether the district court properly refused to

bifurcate the trial into guilt and drug quantity

phases.

On the penultimate day of trial, Melero moved to

bifurcate the guilt and drug quantity phases, arguing that

otherwise he would have to simultaneously argue that

he was not a member of a drug conspiracy as charged but,

that if he was, “he was not involved in the quantities of

32 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

drugs charged by the Government.” The district court

denied the motion, stating, “I don’t see the prejudice

frankly.” Melero argues on appeal that the court violated

his Fifth and Sixth Amendment rights and otherwise

abused its discretion by failing to bifurcate the issues of

guilt and drug quantity. A trial court has discretion to

decide whether to bifurcate a trial, and we evaluate

denial of a motion to bifurcate for abuse of discretion.

See Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir.

2000).

As the district court recognized here, it’s not clear

that Melero’s arguments were even inconsistent: to argue

that he was not a member of the conspiracy did not

amount to conceding drug quantity, nor did arguing the

drug quantity require an admission of guilt on the con-

spiracy. The court did not abuse its discretion in

denying Melero’s motion.

I. Whether the district court properly admitted a

co-conspirator statement by Alviar that he and

Melero were enforcers in the Latin Kings.

Cooperating witness Olivares testified that he had been

a Latin King in Aurora who was imprisoned until

August 2003. On being released from prison, Olivares

began cooperating with the FBI. On March 25, 2004,

Olivares recorded a conversation with Alviar in which

Alviar stated: “Me and Pep Dog [Melero] got those

spots. He’s the enforcer, I’m hood enforcer.” Olivares

described those enforcer positions as high positions.

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 33

The defense objected to the recording on the ground

that Alviar’s statements to Olivares were not made in

furtherance of the conspiracy and were admissible only

against Alviar. The district court admitted the record-

ing. Melero appeals. He argues that the court abused

its discretion by permitting conversations with a con-

fidential informant for the government into evidence

under 28 U.S.C. § 801(d)(2)(E).

In conspiracy cases statements that are “part of the

information flow between conspirators intended to help

each perform his role” satisfy the “in furtherance” require-

ment of Rule 801(d)(2)(e). Garlington v. O’Leary, 879

F.2d 277, 283 (7th Cir. 1989) (quoting United States v. Van

Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988)). Such state-

ments include those made to alert members to the

progress of the conspiracy and their roles in it. See

United States v. Hunt, 272 F.3d 488, 495-96 (7th Cir. 2001).

The district court had ample grounds to conclude that

Alviar’s statement to Olivares furthered the conspiracy.

J. Whether the district court clearly erred in attribut-

ing more than 150 kilograms of cocaine to Tejeda

for sentencing purposes and in assessing him an

enhancement for being a leader or organizer of

extensive criminal activity.

Tejeda was sentenced at a base offense level of 38 based

on a finding that the cocaine involved in the conspiracy

and chargeable to Tejeda totaled 171.6 kilograms. Among

other enhancements, the district court enhanced Tejeda’s

offense level by four points pursuant to U.S.S.G. § 3B1.1(b)

34 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

based on a finding that he was an organizer or leader

of criminal activity involving five or more participants.

Tejeda argues on appeal that he is entitled to resen-

tencing because the court erred in its drug quantity

calculations and in enhancing his offense level based on

its finding that he was an organizer or leader. We review

a court’s factual findings at sentencing for clear error.

United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005).

In terms of drug quantity, the government relied on

testimony of cooperating witness Lopez to make its

calculations. Lopez testified that from approximately

January to September 2000, Tejeda dealt between

one-quarter and one-half ounce of cocaine per week. The

mid-point of this range is 10.5 grams, and 10.5 grams

times 39 weeks amounts to 409.5 grams. From approxi-

mately October 2000 to December 2001, Lopez testified,

Tejeda dealt approximately 1/8 kilo per week, and

126 grams times 65 weeks amounts to 8,190 grams. From

approximately January to June 2002, Tejeda dealt ap-

proximately 1/4 kilo per week, and 250 grams times 22

weeks amounts to 5,500 grams. And from approximately

July 2002 to March 2005, Tejeda dealt one to two kilo-

grams per week, and one kilogram times 142 weeks

amounts to 142,000 grams. Tejeda, Madrigal, Melero, and

Delgado- Rios also stole some 4 kilograms, and defendants

Tejeda, Alviar, and Heriverto Rios attempted to purchase

10 kilograms of cocaine as part of the conspiracy.

The district court stated:

[T]hese were not kilogram transactions. They were

small, relatively small transactions. . . . But it’s still

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 35

enough to max out on the threshold of the 38 offense

level under the guidelines. . . . [T]hey were small

quantity transactions, but they occurred over an

awfully long period of time, and that’s how it adds

up, just so the record is clear about that.

We analyze the district court’s finding for clear error.

The court was “entitled to estimate drug quantity using

testimony about the frequency of dealing and the amount

dealt over a specified period of time.” United States v.

Hernandez, 544 F.3d 743, 746 (7th Cir. 2008) (quoting

United States v. Noble, 246 F.3d 946, 952 (7th Cir. 2001)).

While a defendant must be sentenced on the basis of

reliable information, United States v. Bautista, 532 F.3d

667, 672 (7th Cir. 2008), and a court may not base its

calculation on pure speculation, United States v. Jarrett,

133 F.3d 519, 530 (7th Cir. 1998), the court may use a

reasonable estimate of the drug quantities. United States

v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008). The court’s

finding that Tejeda was responsible for more than 150

kilograms of cocaine was supported by the evidence,

and there was no clear error.

Tejeda also advances an argument based on the leader-

ship enhancement. In arguing for a leader or organizer

role adjustment, the government pointed to Lopez’s

asserted role as subservient to Tejeda (packaging and

transporting cocaine for Tejeda, transporting Tejeda for

drug deals, storing cash, cocaine, and guns for Tejeda);

Tejeda’s recruitment of Samaniego to purchase a motor-

cycle in order to launder drug proceeds; Tejeda’s claimed

recruitment of Alviar and Rios in the attempt to pur-

36 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

chase 10 kilograms of cocaine; and Tejeda’s calls to

Melero and Madrigal when his home was fired upon. The

defense argued that the conspiracy was a disorganized

conspiracy without leadership.

The district court found that “the enhancement itself is

based on relative culpability. And relatively speaking,

I heard more than enough evidence to convince me that

he was a leader of the people that he was dealing with,

at least some of them, and that there were five or

more people in the conspiracy.” The court enhanced the

offense level four points based on § 3B1.1(b), which

provides, “If a defendant was an organizer or leader of

a criminal activity that involved five or more par-

ticipants or was otherwise extensive, increase by 4 levels.”

On appeal, Tejeda does not dispute that there were

five or more participants, but he points out that § 3B1.1(b)

includes three categories: organizer or leader of criminal

activity involving five or more participants (4 points);

manager or supervisor of criminal activity involving five

or more participants (3 points); or organizer, leader,

manager, or supervisor of lesser criminal activity

(2 points). He continues that for the four point enhance-

ment, the government had to show the defendant had

real and direct influence over other participants. He

argues that the government did not demonstrate real

influence.

Note 4 to § 3B1.1(b) lists factors to be considered in

assessing the aggravating role adjustment, including “the

exercise of decision making authority, the nature

of participation in the commission of the offense, the

Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385 37

recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the degree of participa-

tion in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control

and authority exercised over others.” No factor listed in

the application note is essential to finding the enhance-

ment, nor must we give equal weight to each factor.

United States v. Wasz, 450 F.3d 720, 729 (7th Cir. 2006).

“[A]lthough the nature and purposes of the enhance-

ment certainly require the defendant to have played a

leading role in the offense, he need not literally have

been the boss of his cohorts in order to qualify for the

enhancement, for a leader can influence others through

indirect as well as direct means.” Id. at 729-30.

In this case, there was evidence showing that Lopez

worked for Tejeda and that Tejeda oversaw Lopez in

selling cocaine. There was evidence that Tejeda recruited

Manny Samaniego (Cruz Samaniego’s brother) to launder

drug proceeds and purchase a motorcycle. Tejeda also

recruited Alviar and Rios to join him in the attempted

robbery of 10 kilograms. Tejeda used Melero as a lookout.

Based on this evidence, there was no clear error in the

district court’s decision to enhance the offense level four

points based on leadership.

K. Whether the district court improperly sentenced

Madrigal.

Finally, Madrigal contends that the district court improp-

erly sentenced him based on drug quantities in excess

of those reflected in the jury’s verdict.

38 Nos. 07-2333, 07-2336, 07-2338, 07-2366 & 07-2385

The jury verdict found Madrigal responsible for more

than 500 grams but less than five kilograms of cocaine.

At sentencing, the district court, while recognizing its

authority to sentence based on amounts in excess of the

jury’s verdict, refused to find Madrigal responsible for

any amount beyond the five kilograms found by the jury

(“In this case . . . I feel constrained to honor the jury’s

finding”). The court found Madrigal responsible for

between three-and-a-half and five kilograms of cocaine,

which together with a firearms enhancement, brought

Madrigal to level 32, category VI. The guideline range

was 210 to 262 months. Madrigal received 240 months.

The court sentenced based on quantities within the

range found by the jury, which was proper.

III. Conclusion

We A FFIRM the district court on all counts.

7-23-09