United States v. Duran, Frank ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
1
No. 03-2506
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK DURAN,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 CR 757—Ronald A. Guzman, Judge.
____________
ARGUED APRIL 6, 2004—DECIDED MAY 10, 2005
____________
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. In December of 2002, a superseding
indictment charged Frank Duran, and several others, with
violations of various federal narcotics and firearms statutes.
These charges arose out of a drug-distribution conspiracy in
Chicago.
1
This case originally was consolidated for purposes of briefing
and disposition with United States v. David Duran, No. 03-2968.
That consolidation has been vacated.
2 No. 03-2506
Mr. Duran was tried before a jury and was found guilty of
all charges against him, including conspiracy to possess
with the intent to distribute a controlled substance, see
21 U.S.C. §§ 841(a)(1) & 846; possession with the intent to
distribute a controlled substance, see 21 U.S.C. § 841; posses-
sion of a firearm, “namely, a Beretta 9 mm semiautomatic
handgun,” in furtherance of a drug trafficking crime, see
18 U.S.C. § 924(c)(1)(A); and use of a communications
facility to facilitate the commission of a narcotics offense, see
21 U.S.C. § 843(b). Mr. Duran has appealed his conviction
and his sentence. We held this case in abeyance pending the
Supreme Court’s decision in United States v. Booker, 125 S.
Ct. 738 (2005). For the reasons set forth in the following
opinion, we now affirm the judgment of conviction. How-
ever, in light of Booker, 125 S. Ct. 738, and this court’s
decision in United States v. Paladino, 401 F.3d 471, 2005 WL
435430 (7th Cir. Feb. 25, 2005), we order a limited remand of
Mr. Duran’s sentence.
I
BACKGROUND
A. Facts
In January of 2001, the Federal Bureau of Investigation
(“FBI”) began an investigation into a Chicago drug ring af-
ter an informant alerted the FBI that Mr. Duran and others
were distributing narcotics. Through wiretaps, controlled
buys and informants, the Government was able to obtain a
great deal of evidence about the conspiracy.
Mr. Duran decided to go to trial. His brother, David Duran,
however, decided to plead guilty and to testify against his
brother. A number of Mr. Duran’s other cohorts, including
Beatriz Gamez, Mr. Duran’s long-time, live-in girlfriend and
No. 03-2506 3
the mother of his three children, as well as William Bertucci
and Andrew DiPalma, also agreed to testify against Mr.
Duran. At Mr. Duran’s trial, the evidence consisted of
recorded telephone conversations, testimony from law-
enforcement agents, testimony from cooperating witnesses
and physical evidence seized during searches following the
arrests of the co-conspirators in 2001. The evidence was
extensive, and we shall give only the broad outline.
Beginning no later than 1999 and continuing through
2001, David Duran obtained marijuana and cocaine from a
number of drug suppliers, including Danny Galacia. These
purchases from suppliers often were made on credit. David
Duran’s testimony and a recorded telephone conversation
established that, at least on one occasion, Mr. Duran trans-
ported drugs and guns from Galacia’s house in Texas to
Chicago.
David would sell some of these drugs directly to his “own
customers.” David would also sell some to Mr. Duran and
give some to Mr. Duran on credit, who dealt to his “own
customers.” David testified that either two to three times a
week or a month, he would provide Mr. Duran with an
eighth or a quarter kilo of cocaine so that Mr. Duran could
service his customers. Also, “[w]hen it was in season,”
David would front Mr. Duran “on average” between “five
and ten pounds” of marijuana “[m]aybe once or twice a
week.” Tr. at 551. Gamez, Mr. Duran’s girlfriend, helped
Mr. Duran service his customers. For example, once or twice
a week in June and July of 2001, Gamez distributed drugs to
Mr. Duran’s customers. Also, Gamez testified, customers
would come to their house to collect drugs and to make
payments. Gamez testified regarding a journal she kept, in
which she recorded the amounts owed to Mr. Duran by his
customers. Gamez also would record when David took Mr.
Duran’s cocaine to cover a shortage for a customer.
4 No. 03-2506
DiPalma, who was cooperating with the FBI, made two
controlled buys from Mr. Duran.
Evidence established that the brothers also worked in
tandem. DiPalma testified he was able “to call either David
or Mr. Duran for the cocaine” and if one was not available,
he would call the other. Tr. at 25; see also Tr. at 26 (explain-
ing that, “[i]n the last couple of years I would say I did more
business with Frank, but generally, I would call one
[brother], and if he didn’t have the cocaine, I would call the
other brother,” and further explaining that, at times, David
referred him (DiPalma) to Frank and vice versa). In addi-
tion, Mr. Duran also served as a drug delivery person for
David. David testified that, at various times, Mr. Duran was
delivering drugs “two to three times a week” for David for
a fee; recorded telephone conversations regarding Mr. Duran’s
deliveries on behalf of David were introduced at trial. Tr. at
543. Bertucci, one of David’s long-time customers, testified
at trial that Mr. Duran delivered drugs to him on behalf of
David on one occasion.
On June 4, 2001, David was stopped by Chicago Police
Officer Walsh after Officer Walsh became aware that David
was going to make a deal. Crack cocaine was found on the
front seat of David’s car, and David attempted to bribe
Officer Walsh. As part of the investigation, Officer Walsh
played along and ultimately got David to agree to give a
cash bribe; the two met later and David paid the officer.
In recorded telephone conversations between David and
Mr. Duran introduced at trial, David told Mr. Duran about
being stopped. He also told Mr. Duran that he needed to
move drugs, and the two discussed utilizing a car that the
police would not recognize. FBI Special Agent Melton tes-
tified about a different incident on June 19, 2001, when he
stopped a truck that David was driving and found David
with approximately $20,000 in cash. David told Agent
No. 03-2506 5
Melton that he owned the truck but that “the license plate
on the vehicle belonged to his brother, Frank.” Tr. at 778-79.
There was also a significant amount of evidence intro-
duced about the role of the “Bat Cave” or “Eagle’s Nest,” an
apartment located at 3743 South Damen. This location was
utilized to advance the distribution activities. Gamez
testified this was “an apartment that [Frank Duran] and his
brother used to rent . . . to hold the drugs at.” Tr. at 222.
Gamez further testified that Mr. Duran would stay at the
Bat Cave “a couple of time[s] a week or month” and ex-
plained that Mr. Duran told her that the brothers “needed
to pretend that they lived there.” Tr. at 298. Gamez testified
she never went to this apartment and was not sure where it
was. David testified that, among other purposes, this apart-
ment was utilized to hide and store drugs and drug-dealing
paraphernalia and to measure drugs. David specifically
testified that Mr. Duran would leave him money in the
apartment for drugs that David had given him. See Tr. at
554-55. David also testified that Mr. Duran had a key “[a]t
times.” Tr. at 555. When the police searched the Bat Cave,
they uncovered cocaine, scales with white powder residue,
a vitamin used to cut cocaine, a bulletproof vest, a flash
suppressor and three weapons. One of the weapons that is
particularly relevant to this appeal was a 9 mm semiauto-
matic pistol (the “Beretta”) found in the pocket of a bath-
robe hanging on the door in the apartment’s bathroom.
David testified that this weapon was his and that he kept it
“[f]or protection.” Tr. at 562. In addition to searching the Bat
Cave, law enforcement searched Mr. Duran’s house, David’s
house, where he lived with his girlfriend (1710 West
Cermak), and David’s sister’s apartment, where David had
stayed at different times. At these locations, they discovered
drugs, drug-dealing paraphernalia and a number of other
weapons and weapons accessories.
6 No. 03-2506
B. District Court Proceedings
In January of 2003, Mr. Duran went to trial and was found
guilty of all charges against him, including conspiracy to
possess with the intent to distribute a controlled substance
(Count 1), see 21 U.S.C. §§ 841(a)(1) & 846; possession with
the intent to distribute a controlled substance (Counts 6 and
7), see 21 U.S.C. § 841; possession of a firearm, “namely, a
Beretta 9mm semiautomatic handgun,” in furtherance of a
drug trafficking crime (Count 9), see 18 U.S.C. § 924(c)(1)(A);
and use of a communications facility to facilitate the
commission of a narcotics offense (Count 15), see 21 U.S.C.
§ 843(b).
Mr. Duran was sentenced to 262 months for Count 1,
240 months for Counts 6 and 7, and 8 months on Count 15,
with the sentences to run concurrently. He also was sen-
tenced to a consecutive 60-month sentence for Count 9.
II
DISCUSSION
Mr. Duran challenges various aspects of his conviction.
These issues fall into four broad categories. We shall con-
sider each in turn. Then we shall address Mr. Duran’s
challenge to his sentence.
A. Evidentiary Challenges
Mr. Duran’s first challenge is to the district court’s admis-
sion of certain evidence. Our review of evidentiary decisions
is limited. “We afford great deference to the trial court’s
determination of the admissibility of evidence 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
No. 03-2506 7
with the case and ability to gauge the impact of the evidence
in the context of the entire proceeding.” United States v. Van
Dreel, 155 F.3d 902, 905 (7th Cir. 1998). This principle is
reflected in our approach to appellate review of evidentiary
submissions. If a timely objection at trial was made, we
review the district court’s ruling under an abuse of discre-
tion standard. See United States v. Wilson, 237 F.3d 827, 834
(7th Cir. 2001). Even when we conclude that the court erred
in its decision, “the court will grant a new trial only if the
error had a ‘substantial influence over the jury,’ and the
result reached was ‘inconsistent with substantial justice.’ ”
United States v. Walton, 217 F.3d 443, 449 (7th Cir. 2000)
(citation omitted). However, much of the evidence Mr.
Duran now challenges was not the subject of an objection at
trial; in such a situation, our review is limited to searching
for a plain error. See United States v. Wynn, 845 F.2d 1439,
1442 (7th Cir. 1988). To reverse under plain error review, we
must find “(1) an error has occurred, (2) it was ‘plain,’ (3) it
affected a substantial right of the defendant, and (4) it
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.” United States v. Gibson, 356 F.3d
761, 765 (7th Cir. 2004) (internal quotation marks and
citations omitted); see also Fed. R. Crim. P. 52(b).
Mr. Duran identifies “eight categories” of admitted evi-
dence that he claims were irrelevant, misleading or substan-
tially more prejudicial than probative under Federal Rules
of Evidence 402 and 403. Rule 402 instructs that all relevant
evidence is admissible, but “[e]vidence which is not relevant
is not admissible.” Evidence is relevant if it has “some
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence.” United
States v. Liporace, 133 F.3d 541, 544 (7th Cir. 1998) (internal
quotation marks and citation omitted). Rule 403 further
8 No. 03-2506
explains: “Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.” “[M]ost evidence is, by its very nature, prejudi-
cial, and that evidence must be unfairly prejudicial to be
excluded.” United States v. Neeley, 189 F.3d 670, 682 (7th Cir.
1999) (internal quotation marks and citation omitted). The
eight categories of evidence that Mr. Duran claims should
have been excluded are: (1) “evidence of David’s attempt to
bribe his way out of prosecution,” (2) “Special Agent
Melton’s testimony regarding stopping David and finding
him with more than $20,000 in cash,” (3) certain evidence
recovered at David’s house (1710 West Cermak), (4) two
firearms recovered at David’s sister’s residence, (5) evidence
recovered from the Bat Cave, (6) the testimony of William
Bertucci, (7) intercepted calls between David Duran and
David Zuniga, and (8) matters testified to by David that
have nothing to do with Mr. Duran. Appellant’s Br. at 21-28.
Before delving into the details of each particular “cate-
gory” of evidence, Mr. Duran’s challenge is best considered
globally. Mr. Duran’s theme for this section of his argument
is that “Frank did not get his day in court; he got David’s.”
Appellant’s Br. at 19. He framed the question presented to
this court as follows: “Whether evidence of crimes commit-
ted by a co-conspirator outside the scope of the conspiracy
so tainted the proceeding that substantial justice requires a
new trial.” Appellant’s Br. at 2. At bottom, he believes these
eight “categories” of evidence involving David were not
connected to the conspiracy in which Mr. Duran was
involved; it was David’s drug dealing alone. Although
Mr. Duran knew about David’s dealings, he did not intend
to join in all of David’s individual activities. See United States
No. 03-2506 9
v. Townsend, 924 F.2d 1385, 1392 (7th Cir. 1991) (explaining
that mere knowledge of illegality does not equate with
agreement to join illegality). Thus, submits Mr. Duran, evi-
dence of David’s individual dealings—including dealing
with his “own customers,” bribing the police and keeping
guns— were not relevant to any conspiracy in which
Mr. Duran might have participated. In his view, permitting
the jury considering his criminal liability to hear these
accounts was prejudicial and rendered his trial fundamen-
tally unfair.
We think that Mr. Duran’s challenges fail to appreciate the
breadth of conspiracy liability. “To join a conspiracy . . . is
to join an agreement, rather than a group.” Id. at 1390.
“Proving a conspiracy under 21 U.S.C. § 846 requires that
(1) two or more people agreed to commit an unlawful act
and (2) the defendant knowingly and intentionally joined in
that agreement. No overt act is required.” United States v.
Thornton, 197 F.3d 241, 254 (7th Cir. 1999). Once the defen-
dant is established as a co-conspirator, “[t]he scope of [his]
liability is determined by the scope of the agreement”
among the co-conspirators. United States v. Plescia, 48 F.3d
1452, 1461 (7th Cir. 1995). “[W]here there is one agreement,
a defendant who agrees to conspire will be held liable for
those acts of co-conspirators that were in furtherance of the
conspiracy.” United States v. Edwards, 945 F.2d 1387, 1395 (7th
Cir. 1991). This can be true even if the acts in furtherance of
the conspiracy were committed before the defendant/co-
conspirator joined the conspiracy, see id.; even if the
defendant/co-conspirator did not know the person perform-
ing the acts that furthered the conspiracy, see United States v.
Monroe, 73 F.3d 129, 132 (7th Cir. 1995); and, importantly to
this case, even if the defendant/co-conspirator did not
know specifically that the acts were going to be performed,
see United States v. Bullis, 77 F.3d 1553, 1564 (7th Cir. 1996).
10 No. 03-2506
The primary limiting factor to this powerful principle of
shared liability is that the act be “reasonably foreseeable”
from the conspiratorial agreement. Id.Mr. Duran’s evidentiary challenges—and, indeed, much
of his appeal—necessarily rest on the assumption that
Mr. Duran participated in a narrow conspiracy that did not
implicate David’s activities in full. In this vein, Mr. Duran
argues that, although Mr. Duran may have known of David’s
dealings, that is not sufficient to prove Mr. Duran joined a
conspiracy encompassing those activities. See United States
v. Torres-Ramirez, 213 F.3d 978, 982 (7th Cir. 2000) (“Knowing
of a conspiracy differs from joining a conspiracy.”). How-
ever, the evidence of record certainly supported the conclu-
sion that Mr. Duran not only knew of but also had joined a
very broad drug-dealing conspiracy in the Chicago area that
encompassed David’s activities as presented to the jury. The
district court was on solid ground in permitting the jury to
consider this evidence. Indeed, in telling fashion, Mr. Duran
explicitly has disclaimed any challenge to the sufficiency of
the evidence to establish the existence of the conspiracy or its
scope. See Appellant’s Br. at 20 n.1. Moreover, the jury
instructions specifically presented the jury with Mr. Duran’s
theory that “[a] defendant’s association with conspirators is
not by itself sufficient to prove his participation or member-
ship in a conspiracy,” Tr. at 898, yet the jury still convicted.
To be sure, as Mr. Duran notes, David appears to have
been the most active participant in the conspiracy. The fact
that Mr. Duran’s role was lesser than David’s, however,
does not negate or mitigate Mr. Duran’s conspiratorial
liability for David’s acts. See United States v. Almanza, 225
F.3d 845, 846 (7th Cir. 2000) (“Anyone who agrees to join a
criminal undertaking is a conspirator, and he is liable for all
the criminal acts of the conspiracy that are foreseeable to
him, regardless of how large or small his own role is. The
No. 03-2506 11
result is that a minor participant in a major conspiracy is
potentially subject to very severe punishment.” (citations
omitted)). Mr. Duran notes that both he and David each
technically had their “own customers,” but there also was
ample evidence to establish they worked in tandem in ser-
vicing each other’s customers. Furthermore, the Government
presented evidence that the two worked together to keep the
drug-dealing conspiracy operating generally. For instance,
they covered for each other when a brother could not serve
adequately a customer. Mr. Duran also made deliveries for
David. Because David and Mr. Duran were in a conspiracy
to deal drugs in Chicago, any of David’s activities that were
reasonably foreseeable from that broad agreement were, as
a matter of law, Mr. Duran’s activities. Accordingly, they
were directly relevant to Mr. Duran’s case and their admis-
sion was not even error, much less abuse of discretion or
plain error.
With these principles in mind, we turn to Mr. Duran’s
individual challenges. First, he contends that the “evidence
of David’s attempt to bribe his way out of prosecution” is
“outside the scope of the conspiracy” in which Mr. Duran
participated. Appellant’s Br. at 21. The admission of this
evidence was not objected to at trial. Therefore, our review
is for plain error, and we can find none. In any conspiracy,
it is reasonably foreseeable that co-conspirators will attempt
to fend off law enforcement in order to keep the conspiracy
going. See United States v. Thompson, 286 F.3d 950, 964 (7th
Cir. 2002) (“[A] defendant may be held criminally responsi-
ble for any act committed in furtherance of the conspiracy,
including acts taken to prevent apprehension.”). This is what
occurred here; the FBI was aware of the conspiracy, and
David was trying to avoid apprehension. The fact that the
drugs Officer Walsh located in David’s car consisted of
cooked crack cocaine and not powder cocaine also does not
render David’s efforts outside the conspiracy. First, although
12 No. 03-2506
the Government removed references to crack cocaine in the
charges sent to the jury, there was evidence to establish that
Mr. Duran was part of David’s crack business as well. See
2
Transcript 36 (Mr. Duran taking an order for crack cocaine).
Further, it is unrealistic to believe that this bribery was an
attempt by David “to avoid prosecution for a bag of crack
cocaine the officer is holding right there, right then.” Reply
Br. at 8. David’s own words tell the story; he called and told
Mr. Duran the police had pulled him over and “you need to
get away from that . . . right now and get over and talk to
me.” Transcript 15 at 2. After paying the bribe, David called
Mr. Duran and told him that he recognized the officer as an
officer who had been hanging around. See Transcript 17.
Indeed, David noted that Mr. Duran had followed the
officer at some point. See id. at 3 (David: “Remember the one
that you were following the other day?” Frank: “Yeah, Yeah,
Yeah.”). Later that night, David called and told Mr. Duran
that drugs needed to be moved and the two discussed
finding a car that the police could not detect. See Transcript
18. The two met later that night. See Transcript 19. The
district court acted well within its discretion in admitting
the evidence and allowing the jury to decide that Mr. Duran
was working with David to keep law enforcement from
ending the drug-dealing ring. Finally, because David’s effort
to avoid apprehension was a reasonably foreseeable aspect
of the conspiracy, it is irrelevant that “[n]o evidence indi-
cated an agreement between David and Mr. Duran to pay
this, or any, bribe.” Appellant’s Br. at 21. In short, David’s
attempt to avoid apprehension was part of the conspiracy in
which Mr. Duran participated and was reasonably foresee-
2
“Transcript” refers to the transcript of the recorded conversa-
tion entered into evidence at trial. Collectively, these transcripts
are located at R.275.
No. 03-2506 13
able from that conspiracy; there was no error, much less
3
plain error, in the admission of this evidence.
Mr. Duran’s second challenge is to “Special Agent Melton’s
testimony regarding stopping David and finding him with
more than $20,000 in cash.” Appellant’s Br. at 22. Mr. Duran
claims this evidence was irrelevant “as outside the scope of
the conspiracy.” Id. at 23. Because there was no objection to
this evidence at trial, we review for plain error. We cannot
find plain error. We have explained under similar facts that
this type of “cash admitted into evidence [is] relevant”
because it shows co-conspirators “were involved in a large-
scale [drug] conspiracy.” United States v. Davis, 838 F.2d 909,
921 (7th Cir. 1988). Even assuming, as Mr. Duran argues,
that there is a possibility that the cash was attributable to
some activities of David that were outside the conspiracy
with Mr. Duran, we further have explained that the fact that
one or both of the co-conspirators “were involved in other
criminal activity that may have contributed to the amount
of cash goes only to the weight, not the admissibility, of the
evidence.” Id.Mr. Duran’s third challenge is to the admission of the
evidence recovered at David’s house at 1710 West Cermak,
including two firearms and a substantial amount of sub-
stance purported to be marijuana. Mr. Duran’s challenge is
based on relevance and undue prejudice. Mr. Duran ob-
jected to this evidence at trial; accordingly, our review is
governed by the abuse of discretion standard.
3
We note that in one of the transcripts relating to this attempt to
avoid apprehension, Mr. Duran is heard punishing his daughters.
That is certainly irrelevant, but, given its brevity in the transcript
and its minor significance in the scheme of the overall evidence,
the resulting prejudice, if any, does not concern us.
14 No. 03-2506
We cannot say the district court abused its discretion in
determining that the guns were relevant. Nor can we say
that the admission of this evidence caused undue prejudice.
Part of the conspiracy was conducted out of David’s house;
this fact is clear not only from the evidence that law enforce-
ment recovered there but also from evidence that showed
Mr. Duran went to David’s house and picked up a quarter
kilo of cocaine to deliver for David. See Tr. at 544-45; see also
United States v. Nava-Salazar, 30 F.3d 788, 798 (7th Cir. 1994)
(upholding admission of drug-dealing evidence from one
co-conspirator’s house against other co-conspirators because
the evidence was relevant to show the charged conspiracy).
Specifically as to the firearms, we have explained that
firearms “are recognized as tools of the drug trade; thus,
courts have sustained the admission of weapons evidence in
narcotics cases because the possession of a weapon is often
a hallmark of drug trafficking.” United States v. Hubbard, 61
F.3d 1261, 1270 (7th Cir. 1995). Ample testimony established
the role of weapons in this conspiracy. See Tr. at 562 (Da-
vid’s testimony regarding keeping the Beretta for “protec-
tion”); id. at 564-65 (David’s testimony that Danny Galacia
had given guns to Mr. Duran); id. at 299, 304-05 (Gamez’s
testimony regarding Mr. Duran’s gun, ammunition and
silencer kept at their home). We also cannot say the proba-
tive value of this evidence was “substantially outweighed by
the danger of unfair prejudice,” Fed. R. Evid. 403 (emphasis
added); Mr. Duran’s contention “that the government
introduced ‘too much’ relevant evidence” is without merit.
4
United States v. Neeley, 189 F.3d 670, 683 (7th Cir. 1999).
4
Mr. Duran also challenges the fact that the Government showed
the weapons were illegally possessed. However, the jury is en-
(continued...)
No. 03-2506 15
The same analysis applies to Mr. Duran’s overlapping
fourth contention that the two guns recovered at David’s
sister’s apartment should not have been admitted. However,
having reviewed the parts of the record to which the
Government has directed our attention, we find that the
Government presented a dearth of evidence to connect
David’s sister’s apartment and/or the guns found therein to
the conspiracy. It appears that David stayed there at times.
However, Mr. Duran’s brief suggests the Government did
not recover any drugs or drug paraphernalia from this
residence, and the Government offers nothing to rebut that
contention. Therefore, the guns’ relevance is highly strained,
and its probative value, if any, was substantially outweighed
by its prejudice. Regardless, the erroneous admission of the
two guns, when numerous others appropriately were ad-
mitted, could not have had a “substantial influence over the
jury,” and this evidence did not transform Mr. Duran’s trial
into one “inconsistent with substantial justice.” Walton, 217
F.3d at 449 (internal quotation marks and citation omitted).
Mr. Duran’s fifth objection—that all the evidence recov-
ered from the Bat Cave should not have been admitted—
was not made at trial, and, therefore, we review for plain
error. The evidence from the Bat Cave was relevant and
admissible for at least two reasons. First, the evidence
revealed that the Bat Cave was headquarters of the conspir-
4
(...continued)
titled to consider the legality of the possession in order to draw
the inference that illegally possessed guns are more likely used
for illegal purposes. Cf. United States v. Castillo, Nos. 02-3584 &
02-4344, 2005 WL 1023029, at *8 (7th Cir. May 3, 2005) (explain-
ing, consistent with numerous circuits, that the status of the
possession is one factor the jury can consider when deciding
whether a gun was possessed “in furtherance of” a drug traffick-
ing crime under 18 U.S.C. § 924(c)(1)(A)).
16 No. 03-2506
acy in which David and Mr. Duran participated. See, e.g., Tr.
at 555-56 (David’s testimony regarding how the Bat Cave
was used by the brothers to exchange money for drugs).
Thus, evidence regarding the apartment was relevant to
help the jury understand the scope and nature of the con-
spiracy. See United States v. Ramirez, 45 F.3d 1096, 1102 (7th
Cir. 1999). Second, as co-conspirators, Mr. Duran and David
were jointly liable for the illegalities in the Bat Cave.
Mr. Duran’s sixth and seventh challenges are to testimony
of William Bertucci and taped conversations between David
Duran and David Zuniga, respectively. No objections were
made at trial, and, therefore, our review is for plain error.
Basically, Mr. Duran’s contention is that this evidence
involved deals with David, not Mr. Duran. Again, however,
Mr. Duran’s argument misses that a co-conspirator (Mr.
Duran) is liable for foreseeable acts of another co-con-
spirator (David), and it hardly can be argued that drug
5
dealing is not a foreseeable act of a drug-dealing conspiracy.
Mr. Duran’s eighth challenge—that certain parts of
David’s testimony regarding drug-supplier Galacia should
have been excluded—also must be reviewed for plain error
and also is without merit. This evidence was quite relevant
5
Mr. Duran also argues that the parts of the recorded conversa-
tions between David Zuniga and David Duran containing Zuniga’s
voice were hearsay not within Federal Rule of Evidence
801(d)(2)(E), the co-conspirator exception to the hearsay rule. This
court, however, has held that a third-party’s voice (here, David
Zuniga’s) on a taped conversation with a co-conspirator’s (here,
David Duran’s) is necessary and admissible context to the co-
conspirator’s statements. See United States v. Gajo, 290 F.3d 922,
930 (7th Cir. 2002); United States v. Davis, 890 F.2d 1373, 1380 (7th
Cir. 1989).
No. 03-2506 17
to the inner workings of the conspiracy of which Mr. Duran
was a part. See Ramirez, 45 F.3d at 1102.
In sum, we are able to identify only one error of any mag-
nitude in the admission of evidence: the admission of two
guns uncovered at David’s sister’s apartment. Assessed
against the backdrop of the evidence as a whole, the admis-
sion of this evidence could not have had a “substantial
influence over the jury.” Walton, 217 F.3d at 449 (internal
quotation marks and citation omitted). Further, it is clear that
Mr. Duran received a trial consistent with “substantial
justice.” Id. (internal quotation marks and citation omitted).
B. Sufficiency of the Evidence Challenge to Count 9
Mr. Duran challenges the sufficiency of the evidence for
his conviction for possession of a firearm in furtherance of
a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A). In
adjudicating a sufficiency of the evidence challenge, this
court “consider[s] the evidence in the light most favorable
to the Government, defer[s] to the credibility determination
of the jury, and overturn[s] a verdict only when the record
contains no evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a reasonable doubt.”
United States v. Jackson, 177 F.3d 628, 630 (7th Cir. 1999) (in-
ternal quotation marks and citation omitted). Legal questions
presented as part of a sufficiency of the evidence challenge
are reviewed de novo. See United States v. Stott, 245 F.3d 890,
904 (7th Cir. 2001).
Section 924(c)(1)(A) of Title 18 criminalizes the “posses-
sion” of a gun “in furtherance of” a drug-trafficking offense.
In this case, the relevant gun charged in the indictment was
the Beretta found in a robe in the bathroom of the Bat Cave.
The evidence established that the gun was David’s; there-
fore, Mr. Duran’s liability is derivative of David’s under co-
18 No. 03-2506
conspirator liability. See United States v. Frazier, 213 F.3d 409,
416 (7th Cir. 2000) (“[A] coconspirator may be held criminally
liable for the foreseeable overt acts of others in furtherance
of a conspiracy.”). Mr. Duran concedes the “possession” ele-
ment of § 924(c)(1)(A). Instead, he argues that the Beretta was
not used “in furtherance of” the subject drug-trafficking
crime: the drug-trafficking conspiracy.
Until recently, we had not addressed the “in furtherance
of” element of § 924(c)(1)(A). However, in United States v.
Castillo, Nos. 02-3584 & 02-4344, 2005 WL 1023029 (7th Cir.
May 3, 2005), we explored this language in some detail, and
the principles of Castillo control this case. The “in furtherance
of” element requires that the weapon further, advance,
move forward, promote or facilitate the drug-trafficking
crime. See id. As numerous cases explain, the mere fact that
a weapon is present at the scene of a drug crime is not
enough to show a gun furthered a drug crime; there must be
“ ‘a showing of some nexus between the firearm and the
drug selling operation.’ ” United States v. Gaston, 357 F.3d 77,
83 (D.C. Cir. 2004) (quoting United States v. Mackey, 265 F.3d
457, 462 (6th Cir. 2001)). One legal theory that has been
advanced, and unanimously accepted, is that a possessed
gun can forward a drug-trafficking offense by providing the
dealer, his stash or his territory with protection. See, e.g.,
Castillo, 2005 WL 1023029 at *7-11; United States v. Luciano,
329 F.3d 1, 6 (1st Cir. 2003). Of course, this type of
possession-for-protection can be confused easily with
circumstantial or innocent weapon possession; therefore, in
cases such as this one, the evidence must specifically tie the
weapon to the drug-dealing activity to ensure there was not
“innocent possession of a wall-mounted antique or an
unloaded hunting rifle locked in a cupboard.” Mackey, 265
F.3d at 461. Factors that can be, but will not always be, useful
in drawing this distinction include: “the type of drug
No. 03-2506 19
activity that is being conducted, accessibility of the firearm,
the type of the weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether the
gun is loaded, proximity to drugs or drug profits, and the
time and circumstances under which the gun is found.”
United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th
Cir.), modified on denial of rehearing, 226 F.3d 651 (5th Cir.
2000). At bottom, however, this is an arena where common
sense must be our guide.
In this case, there was more than sufficient evidence to tie
the subject weapon—the Beretta—to the drug-trafficking
conspiracy and specifically to the protection of its owner,
David. The Beretta was uncovered in the bathroom of the
Bat Cave, conspiracy headquarters. It was within proximity
of numerous rounds of ammunition. It was possessed illeg-
ally and was not registered. Also found in the apartment was
cocaine, a bulletproof vest, a flash suppressor, two scales
with white powder residue and a vitamin used to cut
cocaine. It was “strategically located so that [it was] quickly
and easily available for use.” Gaston, 357 F.3d at 83 (internal
quotation marks and citation omitted). Perhaps most
importantly, David unequivocally testified that his purpose
for having the Beretta was “[f]or protection.” Tr. at 562. This
case satisfies many of the Ceballos-Torres factors, and, given
David’s admission, it goes even further. Indeed, this case
cannot be distinguished adequately from a number of well-
reasoned holdings. See, e.g., Luciano, 329 F.3d at 6 (“Given
the close proximity of the firearms and loaded magazines to
the significant stockpile of heroin, we have no difficulty
concluding that there was a sufficient nexus between the
drug trafficking crime and the firearms to sustain a convic-
tion under § 924(c).”); United States v. Suarez, 313 F.3d 1287,
1293 (11th Cir. 2002) (“[C]onsidering (1) the fact that
Sicard’s house was the major initial storage point of all the
20 No. 03-2506
cocaine brought in from Mexico; (2) the type, location, and
condition of the weapons at issue; and (3) the amount of
drugs to be stored in his house, the jury could reasonably
have inferred that the guns were to be used to protect the
conspirators’ investment in their shipment.”); Ceballos-
Torres, 218 F.3d at 415 (“The weapon was loaded and easily
accessible in Ceballos’s apartment, and he confessed to
ownership of the firearm. It was possessed illegally. And it
was possessed in the apartment along with a substantial
amount of drugs and money. Together, these factors
reasonably support a finding that Ceballos’s gun protected
his drugs and money against robbery.”).
Mr. Duran’s argument that, as a matter of law, “[w]hen all
that is shown is possession for ‘protection,’ . . . possession in
furtherance of has not been established,” Appellant’s Br. at
35, simply must fail in light of the case law discussed above,
which holds that jurors are entitled to consider that drug
dealers possess guns for protection to further drug-traffick-
ing offenses. See, e.g., Castillo, 2005 WL 1023029 at *7-11. Of
course, jurors certainly are entitled to find there was no
evidence to establish that link between the particular gun at
issue and the protection purpose, and, at times, the court of
appeals must hold the evidence was insufficient to establish
that link as a matter of law. See United States v. Iiland, 254
F.3d 1264, 1274 (10th Cir. 2001) (reversing “in furtherance of ”
finding when “[t]here was no evidence that the gun and
drugs were ever kept in the same place or that Mr. Iiland
ever kept the gun accessible when conducting drug transac-
tions”). However, we again refuse to hold that the protec-
tion theory is legally invalid because that would be inconsis-
tent with § 924(c)(1)(A)’s “in furtherance of” language. A
possessed gun surely can further a drug conspiracy by
providing protection, and to hold otherwise would thwart
No. 03-2506 21
Congress’ purpose of countering the dangerous mix of guns
and drugs. See Muscarello v. United States, 524 U.S. 125, 132
(1998) (explaining § 924(c)(1)(A)’s purpose in these terms).
Mr. Duran also notes that there was no evidence of on-site
sales at the Bat Cave and implicitly asks us to graft onto the
“in furtherance of” element a requirement that sales be
made at the place the gun is possessed. Like other circuits,
however, we consider on-site sales a relevant consideration
but not a prerequisite. See Gaston, 357 F.3d at 83 (finding “in
furtherance of” element despite no mention of on-site sales);
Suarez, 313 F.3d at 1293 (finding sufficient evidence that
guns possessed at a drug “storage” house were possessed
“in furtherance of”). Given the overwhelming nature of the
other evidence in this case, neither this factor, nor the others
to which Mr. Duran has pointed us, compel reversal.
As we did in Castillo, 2005 WL 1023029 at *5, 8, we empha-
size that our role in this context is limited to ensuring that
a valid legal theory supports the conviction and that there
is some evidence from which a rational jury could find in
favor of that legal theory. See id. The jury was entitled to rely
on the protection theory, and, factually, there was over-
whelming evidence, including David’s own words, that
6
protection was the purpose of the Beretta possession.
6
Mr. Duran also argues that David Duran’s gun possession was
not reasonably foreseeable from their conspiratorial agreement,
and, thus, he cannot be liable for David’s actions. See United States
v. Walls, 225 F.3d 858, 865 (7th Cir. 2000). However, given the
broad scope of this drug conspiracy and the ubiquitous presence
of guns to support the conspiracy, the argument that it was not
reasonably foreseeable that David would possess a gun in furth-
erance of the conspiracy is without merit. See United States v.
(continued...)
22 No. 03-2506
Accordingly, we are unable to accept Mr. Duran’s suffi-
ciency of the evidence challenge.
C. Jury Instructions
Mr. Duran submits three distinct challenges to the jury
instructions. We shall consider each below.
1. “A Firearm” Error
Mr. Duran’s first challenge is to the instructions regarding
Count 9, the § 924(c)(1)(A) charge that we have addressed
in the immediately preceding section. Although numerous
weapons were introduced at trial as evidence, the supersed-
ing indictment based Count 9 on one weapon: the Beretta.
Specifically, it alleged that Mr. Duran “possessed a firearm,
namely, a Beretta 9 mm semi-automatic handgun, with re-
moved serial numbers in furtherance of a drug trafficking
crime, namely, conspiracy to distribute and possess with the
intent to distribute cocaine, in violation of Title 21, United
States Code, Section 846, as more fully described in Count
One of this indictment.” Superseding Indictment at 11. The
jury instructions, however, explained that “[t]o sustain the
charge of possessing a firearm in furtherance of a drug
6
(...continued)
Sandoval-Curiel, 50 F.3d 1389, 1393 (7th Cir. 1995). Mr. Duran also
contends that David’s possession “in furtherance of,” if estab-
lished, was outside the scope of any conspiracy in which
Mr. Duran was a member. As we discussed earlier, this was a
broad conspiracy, and the evidence was more than sufficient to
establish that the Bat Cave, where the Beretta was stationed, was
a central feature of the conspiracy including both David and
Mr. Duran.
No. 03-2506 23
crime, as charged in Count 9, the government must
prove . . . that the defendant knowingly possessed a firearm
in furtherance of that crime.” Tr. at 899 (emphasis added).
It further explained that, “[w]hen the word ‘firearm’ is used
in these instructions, it means any weapon that will or is
designed to or may readily be converted to expel a projectile
by the action of an explosive.” Tr. at 900.
Mr. Duran contends, and the Government concedes, that
this invitation in the jury instructions to convict based on any
weapon is a broadening of the weapon-specific indictment.
A broadening of the indictment occurs when “the govern-
ment . . . the court . . . or both, broadens the possible bases
for conviction beyond those presented by the grand jury.”
United States v. Cusimano, 148 F.3d 824, 829 (7th Cir. 1998)
(internal quotation marks and citation omitted). “Permitting
an indictment to be constructively amended . . . violates the
Fifth Amendment, which states in pertinent part that ‘[n]o
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury.’ ” United States v. Folks, 236 F.3d 384, 391 (7th
Cir. 2001) (quoting U.S. Const. amend. V).
We must decide whether this broadening of the indict-
ment requires reversal. Mr. Duran did not object explicitly
to the instructions’ failure to identify specifically the Beretta;
thus, our review is limited to searching for plain error. See
United States v. Trennell, 290 F.3d 881, 886 (7th Cir. 2002)
(“To assign error to any portion of the charge to the jury or
omission therefrom a party must state ‘distinctly the matter
to which that party objects and the grounds of the objection’
before the jury retires to consider its verdict.” (quoting Fed.
R. Crim. P. 30)); see also Fed. R. Crim. P. 52(b).
Mr. Duran first argues that this type of indictment broad-
ening requires reversal per se. He relies on United States v.
24 No. 03-2506
Pedigo, 12 F.3d 618 (7th Cir. 1993), which explained in an
analogous circumstance that broadening an indictment is
“reversible per se. Therefore, if an amendment occurred, the
plain error standard of review will not save the conviction.”
Id. at 631 (citation omitted). However, Pedigo is not the
current law of this circuit. This court has explained that
when, as here, the indictment is broadened based on non-
specific jury instructions and when there was no objection
to those jury instructions at trial, plain error review is ap-
propriate. See United States v. Algee, 309 F.3d 1011, 1016 (7th
Cir. 2002); see also Cusimano, 148 F.3d at 828 n.3 (explaining
that, when plain error review is necessary, reversal per se is
not warranted and collecting cases).
This court’s decision in Algee is controlling. In Algee,
Count 3 of the superseding indictment charged Algee
with knowingly possessing, after having previously
been convicted of a felony, a firearm, “that is a Norinco,
model SKS, 7.62 caliber, semi-automatic rifle, and a
Harrington and Richardson, model ‘Victor,’ .22 caliber
revolver.” At trial, however, evidence of five firearms,
including the two listed in the superseding indictment,
were introduced. Further, the jury was instructed that it
had to conclude only that Algee “knowingly possessed
a firearm” to find him guilty on the count.
309 F.3d at 1015. The court began its review by explaining
that, “[b]ecause Algee forfeited the issue” by failing to ob-
ject, “he had to establish not only that there was error and
that it was plain, but also that the error affected ‘substantial
rights.’ ” Id. at 1016; see also United States v. Harbin, 250 F.3d
532, 543 (7th Cir. 2001) (explaining that an effect on substan-
tial rights generally is equated with prejudice); United States
v. Raney, 342 F.3d 551, 559-60 (7th Cir. 2003) (“We will
reverse a conviction under plain-error review only where it
No. 03-2506 25
is necessary to avoid a miscarriage of justice, and there is no
miscarriage of justice if the defendant’s guilt is so clear that
he would certainly have been convicted even if the error had
never been committed.” (internal quotation marks and
citation omitted)); United States v. Baker, 78 F.3d 1241, 1246
(7th Cir. 1996) (“[T]here is no plain error if a properly
instructed jury nevertheless would have convicted [the
defendant].”). The court in Algee then went on to explain
that Algee had not even attempted to meet his burden of
establishing prejudice, “[a]nd it is unlikely that Algee could
have established prejudice in any case. As the government
points out, there was an abundance of evidence proving that
Algee did knowingly possess the two firearms specifically listed in
the superseding indictment.” Algee, 309 F.3d at 1016 (emphasis
added).
Although Algee involved a different statutory provision,
the felon-in-possession statute, there is no reason why its
principle should not control this case. As our discussion
relating to the sufficiency of the evidence reveals, there also
“was an abundance of evidence proving that” the Beretta was
possessed in furtherance of the drug-trafficking conspiracy.
Id. Accordingly, Mr. Duran has not met his burden of
proving that his substantial rights have been affected, and
7
we must uphold his conviction.
7
Mr. Duran argued in his opening brief that reversal was per se
because the indictment was broadened, and, in the alternative, he
argued that, under plain error review, reversal was warranted
because “but for the error [in the instructions], Mr. Duran
probably would have been acquitted.” Appellant’s Br. at 44. As
explained above, we cannot accept this argument.
At oral argument, however, a different constitutional argument
based on jury unanimity was discussed: whether, because we
cannot be certain the jury decided unanimously that the Beretta
(continued...)
26 No. 03-2506
2. Ceballos-Torres Factors in Instruction
Mr. Duran next argues that the jury instructions on the “in
furtherance of” element of the § 924(c)(1)(A) charge in
Count 9 were erroneous, confusing and warrant reversal.
“Jury instructions are viewed as a whole and ‘[i]f the instruc-
tions are adequately supported by the record and are fair
and accurate summaries of the law, the instructions will not
be disturbed on appeal.’ ” Folks, 236 F.3d at 388-89 (citation
omitted).
The relevant portion of the instructions stated:
Possession of a firearm is in furtherance of a drug-
trafficking crime if the possession assists in furthering,
advancing or helping the drug-trafficking crime.
7
(...continued)
(as opposed to some other weapon) was possessed in furtherance
of the drug-trafficking crime, remand is required. Presumably,
this argument would be based on the Sixth Amendment re-
quirement that a jury find a defendant “guilty,” and the Due
Process Clause’s demand that a jury must find all elements of
an offense beyond a reasonable doubt. We use the term “presum-
ably” because this jury unanimity argument was not raised with
any clarity in Mr. Duran’s opening brief, and, accordingly, it is
waived. See United States v. South, 28 F.3d 619, 629 (7th Cir. 1994)
(“Perfunctory and undeveloped arguments . . . are waived.”). In any
event, we note that the jury unanimity argument is fundamen-
tally at odds with United States v. Algee, 309 F.3d 1011 (7th Cir.
2002), where the conviction was affirmed based on the defen-
dant’s failure to show prejudice (i.e., but for the error, the
defendant would have been acquitted), even though this court
could not be certain the jury unanimously focused on the weap-
ons identified in the indictment in the conviction. See id. at 1016.
It also is at odds with previous constructive amendment cases.
See, e.g., United States v. Remsza, 77 F.3d 1039, 1043-44 (7th Cir.
1996).
No. 03-2506 27
The mere presence of a firearm at a location is not suf-
ficient to find that the firearm was possessed in further-
ance of a drug-trafficking crime but can be considered
along with other factors. Some factors that you may
consider in determining whether a firearm possession
was in furtherance of a drug-trafficking crime include
but are not limited to, [1] the type of firearm, [2]
whether the firearm was stolen, [3] whether the firearm
possession was legitimate or illegal, [4] whether the
firearm was loaded, [5] the accessibility of the firearm,
[6] the proximity of the firearm to drugs, drug profits or
materials used for drug trafficking, [7] the type of drug
activity that is being conducted, and [8] the time and
circumstances under which the firearm was found.
Tr. at 900. The eight factors listed are taken from Ceballos-
Torres, 218 F.3d at 414-15. Mr. Duran argues that “[t]he
Ceballos-Torres factors take the jury in the wrong direction.
The key inquiry should be the relationship between the
firearm and the drug activity. Neither the nature of the drug
activity nor the legality of possession of the firearm alone
are relevant to whether a firearm is used in furtherance.
Thus, factors 1, 2, 3, 4, and 7 are misleading and not proba-
tive to the connection between possession and drug traffick-
ing that the statute demands.” Appellant’s Br. at 45.
A number of circuits, including this one, have adopted the
Ceballos-Torres factors, or a substantially similar list, as help-
ful considerations in the “in furtherance of” calculus. See
Castillo, 2005 WL 1023029, at *8; United States v. Sparrow, 371
F.3d 851, 853-54 (3d Cir. 2004); Gaston, 357 F.3d at 83; Suarez,
313 F.3d at 1293; United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002); United States v. Basham, 268 F.3d 1199, 1208 (10th
Cir. 2001); Mackey, 265 F.3d at 462. However, we have
cautioned, as did the Ninth Circuit recently, that these
factors cannot form a “checklist” because this arena must be
28 No. 03-2506
governed by a common-sense inquiry into whether the gun
and drug-trafficking offense have been tied together such
that a jury could conclude the former was possessed to
advance the latter. See Castillo, 2005 WL 1023029, at *8;
United States v. Krouse, 370 F.3d 965, 968 (9th Cir. 2004).
The Count 9 instructions reflected this approach: They did
not cast the Ceballos-Torres factors as a checklist but as
“[s]ome” factors the jury “may consider” in its “in furth-
erance of” calculus. Moreover, we cannot accept the notion
that these factors are inherently misleading or unhelpful. In
cases such as this one, where the Government’s “in furth-
erance of” theory is one of protection (i.e., the gun was pos-
sessed in furtherance of the conspiracy by protecting the
drug dealer, his stash and/or his territory), the Ceballos-Torres
factors Mr. Duran identifies, and the factors as a whole, can
help the jury to distinguish between a gun possessed for
reasons unrelated to drug-trafficking activity and one
possessed “in furtherance of” that activity. For example,
jurors are not required to ignore the common-sense notion
that a drug dealer who possesses a sawed-off shotgun with
the serial number filed off during the course of a drug-
distribution conspiracy likely was not possessing the weapon
for pheasant hunting or gun-collection shows. See Suarez,
313 F.3d at 1293 (explaining, in rejecting a sufficiency of the
evidence challenge on the “in furtherance of” element, that
“[t]wo of the firearms were illegally shortened” and “[n]one
of the weapons was of a type typically used for legal
purposes, such as hunting”). Moreover, jurors are entitled
to consider that illegally possessed, loaded weapons at the
headquarters of a drug-distribution conspiracy “strategi-
cally located so that [they were] quickly and easily available
for use” are likely to be possessed as part of that conspiracy.
Gaston, 357 F.3d at 83 (internal quotation marks and citation
omitted). But see Krouse, 370 F.3d at 968.
No. 03-2506 29
Of course, in particular cases, the inferences flowing from
the factors will be less forceful, and the defendant can
attempt to rebut such inferences before the jury. Neverthe-
less, assigning proportionate weight, if any, to these factors
is the province of the jury. See Suarez, 313 F.3d at 1293 (ex-
plaining that “[t]he jury rejected” the defendant’s story that
“he had legally purchased guns over several years as a col-
lector” and “it was within its purview to do so”). We need
to hold only that these factors are valid and can be used as
part of the “in furtherance of” instructions, which we do.
Finally, we note that Mr. Duran’s argument that the in-
structions erroneously focused on possession and the
legitimacy of the possession is diminished further by the
fact that, prior to the rendition of the Ceballos-Torres factors
in the instructions, the jury was given a correct definition of
“in furtherance of” and admonished that mere possession
of a firearm at a drug scene is not enough. Given these
factors, we hold the instructions, considered as a whole, were
proper. In so holding, we join the Tenth Circuit, which
approved almost identical instructions and rejected an
almost identical challenge in Basham, 268 F.3d at 1207-08.
3. “Aspects” Instruction
Mr. Duran’s final challenge is to the instructions on the
conspiracy charge in Count 1. These instructions stated in
relevant part:
A conspiracy is an agreement between two or more
persons to accomplish an unlawful purpose. To sustain
the charge of conspiracy as charged in Count 1, the
government must prove the following propositions
beyond a reasonable doubt:
First, that the conspiracy as charged in Count 1 ex-
isted, and, second, that the defendant knowingly be-
30 No. 03-2506
came a member of the conspiracy with an intention to
further the conspiracy.
If you find from your consideration of all the evidence
that each of these propositions has been proved beyond
a reasonable doubt, then you should find the defendant
guilty of Count 1.
If, on the other hand, you find from your consider-
ation of all the evidence that any of these propositions
has not been proved beyond a reasonable doubt, then
you should find the defendant not guilty of Count 1.
A conspiracy may be established even if its purpose
was not accomplished.
Count 1 sets forth different aspects an [sic] of alleged
agreement between the defendant and others. The gov-
ernment need not prove every aspect of the agreement
alleged as part of the conspiracy charged in Count 1.
To be a member of the conspiracy, the defendant need
not join at the beginning or know all members or the
means by which its purpose was to be accomplished.
The government must prove beyond a reasonable
doubt that the defendant was aware of the common
purpose and was a willing participant.
Tr. at 896-97.
Mr. Duran argues that these instructions were “likely to
mislead the jury, implying a reduction in the standard of
proof necessary to convict” and, accordingly, violated his
due process rights. Appellant’s Br. at 45-46 (citing, among
other cases, United States ex rel. Fleming v. Huch, 924 F.2d 679(7th Cir. 1991)). As we noted above, “[j]ury instructions are
viewed as a whole and ‘[i]f the instructions are adequately
supported by the record and are fair and accurate summa-
No. 03-2506 31
ries of the law, the instructions will not be disturbed on
appeal.’ ” Folks, 236 F.3d at 388-89 (citation omitted).
We cannot say that the conspiracy instructions, taken as
a whole, constitute reversible error. The jury unambiguously
was instructed that it had to find the elements of conspiracy
“beyond a reasonable doubt” and that, if any of the ele-
ments were not found “beyond a reasonable doubt,” then
the jury was to acquit. The subsequent admonition that
“Count 1 sets forth different aspects an [sic] of alleged
agreement between the defendant and others,” and “[t]he
government need not prove every aspect of the agreement
alleged as part of the conspiracy charged in Count 1” does
not, in our view, signal to a reasonable jury to ignore the
prior “reasonable doubt” instruction.
Count 1 did state nine of what laypersons would reason-
ably and naturally consider “aspects” of an agreement. For
example, paragraph 2 of Count 1 explained that it was “part
of the conspiracy that defendants DAVID DURAN, FRANK
DURAN, and DANIEL GALICIA, obtained wholesale
quantities of cocaine and marijuana for distribution
to others.” Superseding Indictment at 2. Paragraph 5 ex-
plained that “[it] was further part of the conspiracy” that
Vivian Reyes and Beatriz Gamez, David’s and Mr. Duran’s
girlfriends, respectively, would assist in distributing the
drugs. Id. None of these aspects needed to be proven in order
to convict for conspiracy because “[p]roving a conspiracy
under 21 U.S.C. § 846 requires that (1) two or more people
agreed to commit an unlawful act and (2) the defendant
knowingly and intentionally joined in that agreement. No
overt act is required.” United States v. Thornton, 197 F.3d 241,
254 (7th Cir. 1999). Accordingly, it was appropriate for the
instructions to make this point, and, in the process of so
doing, we do not think the jury would have thought that
this “aspects” instruction, in face of the reasonable doubt
32 No. 03-2506
instructions, meant that it did not have to find the elements
of a conspiracy beyond a reasonable doubt. To take the view
Mr. Duran suggests, we would have to believe that the jury
could have thought that the district court was telling it not
to do what the district court specifically and explicitly told
it to do just sentences earlier.
4. Sentencing
Mr. Duran submits that his sentence violates the
Sixth Amendment, as interpreted by the Supreme Court’s
recent decision in United States v. Booker, 125 S. Ct. 738(2005). He points out that the sentence, imposed under the
then-mandatory federal sentencing guidelines, exceeds the
maximum authorized by the facts found by the jury or
admitted by him. Because Mr. Duran did not raise this type
of argument in the district court, our review is for plain
error. See Booker, 125 S. Ct. at 769; United States v. Paladino,
401 F.3d 471, 2005 WL 435430, at *7 (7th Cir. Feb. 25, 2005).
Under the plain error test, “before an appellate court can
correct an error not raised at trial, there must be (1) ‘error,’
(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ”
United States v. Cotton, 535 U.S. 625, 631 (2002) (quoting
Johnson v. United States, 520 U.S. 461, 466-67 (1997)). “ ‘If all
three conditions are met, an appellate court may then exer-
cise its discretion to notice a forfeited error, but only if (4)
the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’ ” Id. (quoting Johnson,
520 U.S. at 467).
A jury found Mr. Duran guilty of all charges against him:
conspiracy to possess with the intent to distribute a con-
trolled substance, in violation of 21 U.S.C. §§ 841(a)(1) & 846
(Count 1); two counts of possession with the intent to
distribute a controlled substance, in violation of 21 U.S.C.
No. 03-2506 33
§ 841 (Counts 6 and 7); possession of a firearm in further-
ance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count 9); and use of a communications facil-
ity to facilitate the commission of a narcotics offense, in
violation of 21 U.S.C. § 843(b) (Count 15). By special verdict,
the jury found that the amount of drugs involved in the
conspiracy was at least five kilograms of cocaine. R.188 at 3.
Based on the jury’s drug amount finding, Mr. Duran’s base
offense level was 32. See U.S.S.G. § 2D1.1(c)(4). An offense
level of 32 and Mr. Duran’s criminal history category of V
corresponded to a guidelines sentencing range of 188 to 235
months. The district court increased the base offense level
by three levels based on its finding, not the jury’s, that
Mr. Duran had acted as a manager or supervisor in criminal
activity involving five or more participants, U.S.S.G. § 3B1.1(b).
The final adjusted offense level resulted in an applicable
guidelines sentencing range of 262 to 327 months. The dis-
trict court sentenced Mr. Duran to 262 months on Count 1,
to 240 months on Counts 6 and 7, and to 8 months on Count
15, with the sentences to run concurrently. As required by
18 U.S.C. § 924(c)(1)(A), the district court also imposed a
consecutive sentence of 60 months on Count 9.
The Government concedes that, in light of Booker, there was
error and that the error is obvious. However, the Government
maintains that the enhancement of Mr. Duran’s sentence
does not amount to plain error because Mr. Duran cannot
demonstrate that the error affected the outcome of the dis-
trict court proceedings. On this record, the district court,
vested with the broader discretion now afforded by Booker’s
remedial holding, might well have imposed a lighter sen-
tence than required by the guidelines; we simply cannot be
certain. Therefore, to enable us to complete our plain error
analysis, we shall retain jurisdiction of this appeal and
direct a limited remand, in accordance with our circuit’s
34 No. 03-2506
recent decision in Paladino, 401 F.3d 471, 2005 WL 435430, at
*10, to permit the sentencing court to determine whether or
not it would have imposed the same sentence had it known
that the guidelines were merely advisory.
Conclusion
For the foregoing reasons, we affirm the judgment of con-
viction and order a limited remand of the sentence consis-
tent with the procedure outlined in Paladino, 401 F.3d 471,
2005 WL 435430, at *10.
IT IS SO ORDERED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-05