United States v. Gallardo, David ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2037, 06-1035 & 06-1143
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID GALLARDO, RICARDO GALLARDO
and JORGE LUNA,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 CR 50013—Philip G. Reinhard, Judge.
____________
ARGUED MAY 4, 2007—DECIDED AUGUST 15, 2007
____________
Before POSNER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. David Gallardo, his brother
Ricardo Gallardo, and Jorge Luna were convicted of
various offenses related to a cocaine and heroin distribu-
tion conspiracy. Together, and individually, they appeal
numerous procedural, evidentiary, and sentencing is-
sues. Finding no error in any of the Appellants’ convic-
tions or sentences, we affirm.
I. BACKGROUND
Michael Fricks was a Rockford, Illinois resident who
law enforcement officers had identified as a drug dealer.
2 Nos. 05-2037, 06-1035 & 06-1143
From November 2003 until February 13, 2004, the Drug
Enforcement Agency (DEA) had court authorization to
intercept phone calls to and from Fricks’s cell phone. From
evidence gained through those interceptions, agents
obtained an interception order for Ricardo’s phone from
February 2 until February 12, 2004. The DEA’s investiga-
tion resulted in the arrest of Ricardo, David, Luna, Fricks,
Jose Espinoza, and Jerry Wilson. Fricks, Espinoza, and
Wilson cooperated with the government and testified at
the Appellants’ trial.
As part of the drug conspiracy, Espinoza and Ricardo
purchased a number of vehicles from James Orsinger
with drug trafficking proceeds. While Ricardo purchased
the vehicles, Orsinger let him use nominees for the
names actually appearing on the titles. Luna agreed to
let Ricardo use his name for the title to a 2004 Volkswagen
Touareg so that Espinoza and Ricardo could conceal their
ownership. Espinoza and Ricardo provided the money
for the loan payments on the car and as payment for
the use of his name, they paid for a vacation for Luna to
Las Vegas.
Espinoza and Ricardo bought the Touareg in order to
transport drugs from Mexico to Rockford. They made
arrangements with their associates in California to
install a secret compartment in the car and asked Luna
to drive the car to California for them. Luna agreed; he
drove the Touareg to California and flew back to Illinois.
At trial, Espinoza testified that he and Ricardo began
selling small quantities of cocaine together in 2000.
Initially, they sold as little as one ounce of cocaine at a
time, but they quickly ramped up their sales to quarter-
kilogram increments. After a short stint in prison,
Espinoza returned to Rockford in April 2003, and he and
Ricardo began obtaining their cocaine from an organiza-
tion run by Larry Mendoza. Espinoza and Ricardo used
Nos. 05-2037, 06-1035 & 06-1143 3
a truck with a hidden compartment to transport the
cocaine. Mendoza, or his associate Tobias Wamsley, would
drive the truck to Rockford and deliver the cocaine to
either Espinoza or Ricardo. Espinoza or Ricardo would
then drive the truck to the home of Connie Gesswein, a
woman who agreed to let Espinoza and Ricardo store
their drugs in her house if they paid her rent. After sell-
ing the cocaine, Espinoza or Ricardo would then use the
truck to bring Mendoza his money. Mendoza’s organization
fronted Espinoza and Ricardo between ten and thirty
kilograms of cocaine on between ten and twelve occasions
from April 2002 to February 12, 2004.
Rather than selling the cocaine directly to consumers,
Espinoza and Ricardo moved the drugs down the dis-
tribution chain by fronting them to Fricks, Wilson, and
several other individuals. Once these individuals sold the
cocaine, they would make payment to either Espinoza,
Ricardo, or Ricardo’s brother David. Fricks testified at
trial that he began obtaining cocaine from Ricardo in early
2002. Between February 2002 and February 13, 2004,
Fricks obtained approximately 150 kilograms of cocaine
from Ricardo, Espinoza, and David.
Wilson testified that he obtained cocaine from Ricardo
between October 2000 and the end of 2001 or the begin-
ning of 2002. He began with quarter-kilogram transac-
tions, but incrementally moved up to full kilogram transac-
tions. Starting in late 2001 Wilson purchased his cocaine
from Fricks but began obtaining it directly from Ricardo
again in November 2003. Between November 2003 and his
arrest on February 12, 2004, Wilson received approxi-
mately forty-five to fifty kilograms of cocaine from Ricardo,
Espinoza, and David.
On February 12, 2004, Wilson told Ricardo that he had
money for him. David went to Wilson’s home and retrieved
the $15,000 payment. Wilson then talked to Ricardo and
4 Nos. 05-2037, 06-1035 & 06-1143
told him that he needed two kilograms of cocaine. Ricardo
called David and instructed him to get two of the big
bags from Gesswein’s and take them to Wilson. Officers
watched David retrieve the drugs and drive them to
Wilson’s apartment in a vehicle registered to Luna.
Later that day, Espinoza and David were together in
Espinoza’s car when they received a call from Ricardo.
Ricardo told them that he was about to be arrested and
that they should go to Gesswein’s house. Espinoza and
David drove to Gesswein’s house and picked up six kilo-
grams of cocaine, one kilogram of heroin, and $59,594
in cash. They began to drive to Chicago but were quickly
stopped by police and arrested. At the time of their
arrest, Espinoza and David were in possession of the
garage door opener to Gesswein’s house, the garage door
opener to Ricardo’s house, and a box containing exactly
$15,000. At the time that Ricardo was arrested, he was
in possession of a cell phone which had been broken in
two pieces. That same cell phone had called Espinoza’s
phone three times between 5:10 p.m. and 6:51 p.m. that
day.
Ricardo was charged in Count One with conspiring to
possess with the intent to distribute and conspiring to
distribute five or more kilograms of cocaine and one
kilogram or more of heroin between October 2000 and
February 12, 2004 in violation of 21 U.S.C. § 846, in Count
Two with distributing over 500 grams of cocaine on
February 12, 2004 in violation of 21 U.S.C. § 841(a)(1), in
Count Three with possessing with the intent to distribute
more than five kilograms of cocaine and more than 100
grams of heroin on February 12, 2004 in violation of
§ 841(a)(1), and in Counts Five through Twelve with
money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)
and 1957.
The jury returned guilty verdicts against Ricardo on
Counts One, Two, Three, Nine, Ten, Eleven, and Twelve.
Nos. 05-2037, 06-1035 & 06-1143 5
The district court sentenced Ricardo to 360 months’
imprisonment, five years’ supervised release, and a
$500 fine.
Luna was charged in Count One with aiding and abet-
ting the conspiracy, and in Counts Eleven and Twelve
with money laundering. The jury returned guilty verdicts
against Luna on Counts Eleven and Twelve. The district
court sentenced Luna to thirty-three months’ imprison-
ment, three years’ supervised release, and a $250 fine.
David was charged in Count One with conspiring to
possess with the intent to distribute and conspiring to
distribute five or more kilograms of cocaine and one
kilogram or more of heroin between October 2000 and
February 12, 2004, in Count Two with distributing over
500 grams of cocaine on February 12, 2004, and in Count
Three with possessing with the intent to distribute more
than five kilograms of cocaine and more than 100 grams
of heroin on February 12, 2004.
David pled guilty to Counts One, Two, and Three
without a written plea agreement. The district court
sentenced him to eighty-seven months’ imprisonment,
three years’ supervised release, a $150 fine, and a $300
special assessment.
II. ANALYSIS
Ricardo and Luna, together, raise the following issues:
(1) whether the district court erred by barring question-
ing and evidence regarding the prior drug use of witnesses
and the effect drug use could have on their memory; and
(2) whether the district court erred by denying the defen-
dant’s request to inspect extraneous papers in a juror’s
possession. Luna raises the issue of whether sufficient
evidence was presented to support his convictions. Ricardo
raises the following issues: (1) whether the district court
6 Nos. 05-2037, 06-1035 & 06-1143
improperly allowed evidence of prior bad acts under FED.
R. EVID. 404(b); (2) whether the district court improperly
allowed an in-court identification of Ricardo by Wamsley;
and (3) whether the district court erred in either its
calculation of the appropriate Sentencing Guideline
range or in arriving at a reasonable sentence. David raises
the issue of whether the district court erred by failing to
grant him a downward sentencing adjustment for playing
only a minor role in the offense pursuant to U.S.S.G.
§ 3B1.2(b).
A. Evidence of Witnesses’ Prior Drug Use
At trial, Ricardo sought to offer expert testimony that
the past use of cocaine, marijuana and ecstasy by govern-
ment witnesses would have an adverse effect on their
ability to remember the events to which they testified. The
government filed a motion in limine to bar Ricardo’s
expert. The district court explained that defense counsel
could only ask the government witnesses whether they
were presently addicted to drugs and whether they were
addicted to drugs any time between 2000 and 2004. The
court reasoned that it was “within its discretion to
refuse cross examination on the issue where memory or
mental capacity is not legitimately at issue and the
evidence is offered solely as a general character attack.”
Tr. p. 383. The district court relied on this court’s opinion
in United States v. Mojica to find that defense counsel had
offered no basis for finding that the witnesses’ memory
was legitimately at issue. 185 F.3d 780, 788 (7th Cir.
1999). Thus, more extensive cross examination on the
subject was prohibited.
The district court also informed defense counsel that
they could present extrinsic evidence of the witnesses’ drug
use during the relevant time periods in their case in chief.
Defendants did not present any evidence that any of the
Nos. 05-2037, 06-1035 & 06-1143 7
government witnesses were under the influence of drugs
during the events to which they testified. As to the defen-
dants’ proffered expert, the district court accepted him as
a recognized expert, but found that his testimony would
not assist the jury in making its decision, particularly
because there was no evidence of the witnesses’ past drug
use or addiction. Additionally, because no evidence of drug
addiction was presented to the jury, the district court
declined to use the defendants’ proposed jury instruc-
tion on the effects of addiction.
We review the district court’s evidentiary rulings,
including limits placed on cross examination, for an abuse
of discretion. United States v. Evans, 486 F.3d 315, 325
(7th Cir. 2007) (citing United States v. Seals, 419 F.3d 600,
606 (7th Cir. 2005)); Mojica, 185 F.3d at 788. The district
court is empowered to “exercise reasonable control over
the mode and order of interrogating witnesses and pre-
senting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.”
FED. R. EVID. 611(a).
“Evidence of a witness’ prior drug use may be admitted
insofar as it relates to his possible inability to recollect and
relate.” Mojica, 185 F.3d at 788 (citing United States v.
Robinson, 956 F.2d 1388, 1397 (7th Cir. 1992)). There is,
however, “considerable danger that evidence that a wit-
ness has used illegal drugs may so prejudice the jury that
it will excessively discount the witness’ testimony.” Id. at
788-89 (quoting United States v. Cameron, 814 F.2d 403,
405 (7th Cir. 1987)). Thus, as the district court noted, cross
examination on the issue of drug use may be refused
“where memory or mental capacity is not legitimately at
issue and the evidence is offered solely as a general
character attack.” Id. (citing United States v. Berry, 60
F.3d 288, 294 (7th Cir. 1995); Cameron, 814 F.2d at 405).
8 Nos. 05-2037, 06-1035 & 06-1143
We find no error in the limits that the district court
placed on cross examination. Defense counsel was allowed
to ask the government’s witnesses whether they were
currently addicts, and whether they were addicts during
the time period about which they testified. The defendants
proffered no evidence that the witnesses were under the
influence of drugs during the relevant events or that
their prior drug use had affected their ability to recall
particular events. Furthermore, the defendants did not
request that the court voir dire the government’s wit-
nesses regarding prior drug use. The district court found
that the government witnesses had been specific and
consistent in their testimony on direct examination and
concluded that the witnesses’ memory as it relates to drug
use was not legitimately at issue. The district court
weighed the probative value of the evidence, faithfully
applied our decision in Mojica, and acted within its
discretion to limit cross examination of the witnesses.
We turn next to Ricardo’s and Luna’s expert testimony
argument. The admissibility of expert testimony is gov-
erned by FED. R. EVID. 702 and Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589-92 (1993). Rule 702 allows
testimony by a qualified expert if such testimony “will
assist the trier of fact to understand the evidence or to
determine a fact in issue.” FED. R. EVID. 702. Daubert
instructs that expert testimony must be relevant and
factually linked to the case in order to meet Rule 702’s
“helpfulness” requirement. Id. at 591. It is precisely this
factual link that is lacking in this case. The defendants
presented no evidence that the government’s witnesses
were using drugs during the events to which they testified,
or that they were ever addicted to drugs. Therefore, expert
testimony regarding the effect of drug abuse on one’s
memory would not help the jury to determine any fact in
issue. Furthermore, such expert testimony, without a
factual link to the specific witnesses, would intrude upon
Nos. 05-2037, 06-1035 & 06-1143 9
the jury’s role in assessing witness credibility. See United
States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999) (“[T]he
credibility of eyewitness testimony is generally not an
appropriate subject matter for expert testimony because
it influences a critical function of the jury—determining
the credibility of witnesses.”) (citing United States v. Kime,
99 F.3d 870, 884 (8th Cir. 1996)). The district court
specifically recognized this danger, and properly applied
the Daubert standard when it excluded the defendants’
proffered expert witness. See Tr. p. 1143.
Finally, we consider Ricardo’s and Luna’s argument
that the district court erred by refusing to instruct the
jury that drug addicted government informers may be
especially incredible because of their fear of incarceration
and that drug use at the time of an event may impair
a witness’s recollection of that event. We review the
district court’s jury instructions de novo. Evans, 486 F.3d
at 324. “The court’s instructions to the jury must be cor-
rect statements of the law that are supported by the
evidence.” Id. (quoting United States v. Perez, 43 F.3d
1131, 1137 (7th Cir. 1994)).
As neither evidence that the government’s witnesses
were drug addicts, nor evidence of drug use during rele-
vant events was presented at trial, an instruction regard-
ing the effects of current addiction and past incidences
of use on witness credibility was not appropriate. There-
fore, the district court did not err in refusing to give such
an instruction to the jury. See United States v. Yarbough,
55 F.3d 280, 284 (7th Cir. 1995).
B. Juror’s Extraneous Papers
Ricardo and Luna claim that the district court erred by
denying their request to dismiss a juror or to inspect
extraneous papers in the juror’s possession. There was
10 Nos. 05-2037, 06-1035 & 06-1143
much debate between counsel at oral argument regarding
the underlying facts of this claim. The juror was reading
extraneous papers during the trial. No, he never looked
at the papers. The papers were in his hand. No, they
were in his pants pocket. No, his shirt pocket. No, his coat
pocket. It happened early in the trial. No, it happened
late in the trial. None of the parties’ counsel accurately
recalled the event, and we must rely on what little is
found in the record.
On Friday, September 16, 2005, day five of a six day
trial, Mr. Price, counsel for Ricardo, addressed the court:
“Judge . . . I have an observation. Can I just please tell you
at sidebar? We don’t need the reporter.” Tr. p. 1057. Thus,
the record gives no contemporaneous account of what Mr.
Price observed. We are puzzled by his suggestion that the
documentation of his objection was unnecessary, and we
stress the importance of preserving an adequate record
for appeal.
Later in the day, Mr. Taylor, Luna’s counsel, initiated
the following exchange:
Mr. Taylor: We also need to—I think we need to
address the juror that’s got the materials that appear
not to be materials that—
The Court: I did look over that way. Let the record
show that in one of the sidebars that was not recorded,
Mr. Price focused on one of the jurors who had some
documents that appeared—he didn’t appear to be
reading or looking at them, at least to me, during the
portion of the testimony. I’m guessing that it’s some
sort of reading material.
Mr. Price: Judge, I saw them earlier. They appear to
be notebook paper, and when he left, he inserted them
in the little book that they’re using to keep their notes.
Nos. 05-2037, 06-1035 & 06-1143 11
The Court: But that’s all right. He might have extra
notes.
Mr. Price: That’s absolutely possible.
The Court: Those are small notebooks.
Mr. Taylor: Judge, I think we ought to be looking
into what he’s got. If he’s got material that he down-
loaded off the Internet where he’s doing external
investigation, then I think we need to know that
because I’m not entirely sure that I’m comfortable
keeping him as a juror if he’s been—if it’s reading
material, he may not be paying attention to the evi-
dence that’s being presented.
The Court: Well, I haven’t observed that, but—
Mr. Price: I did see him remove the papers.
The Court: We’re only in the last—we’re in the last
phase here. I’ll probably tell them not to bring out any
materials that are not materials that are—they’re
going to use as notebooks.
Government Counsel: As a whole?
The Court: As a whole. I’m not going to single him
out. It may be that others have a paper or something
like that, meaning a newspaper.
Mr. Price: It could be a love note to his wife.
The Court: That’s right. 11:00 o’clock.
Mr. Taylor: For clarity of the record then, my request
to ascertain what it is that he’s got is denied.
The Court: I’m not going to inquire what he’s got. It
looks like a couple of pieces of paper that are note-
book size paper, and it could be used for that, but to
speculate and to single him out, I’ll make the state-
ment that I indicated.
Tr. p 1092-94.
12 Nos. 05-2037, 06-1035 & 06-1143
After the jury returned to the courtroom, the court
stated: “I see some of you are using your notebooks, and
it appears that some of you have other papers with you.
Does anybody need more notebooks?” Tr. p. 1095. The
jurors replied in the negative, and the court stated: “If
you’ve got any other papers, just don’t refer to them.” Id.Later yet that day, Mr. Price and Mr. Taylor reiterated
their concerns and moved the district court to dismiss the
juror or inspect the extraneous papers. Id. at 1128. The
court explained that prior to that day, he had not in-
structed the jurors that they couldn’t have extra papers
with them in court. Additionally, the court noted that
the trial had faced a number of delays, and he couldn’t
blame a juror who might want to write a letter to a
relative or take some notes on his business while not
attending to his duties as a juror. Id.
The Court Security Officer (CSO) then asked if he could
address the court. The CSO explained that a different
juror had approached him after the district court had
instructed the jurors not to use papers other than their
notebooks. The juror explained to the CSO that he had
kept the witness list that the court had distributed dur-
ing voir dire when it questioned potential jurors as to
whether they knew the witnesses in the case. In response
to this information, the court noted that the witness list
he distributed was consistent with the papers possessed
by the originally complained-of juror. The district court
indicated that it would no longer allow jurors to keep such
lists. Mr. Price replied: “We live and learn, Judge.” Id.
at 1130. The issue was not discussed further, and it
appears that all involved were content with the under-
standing that the juror had merely retained the witness
list and that no harm had resulted.
We review a district court’s decision not to hold an
evidentiary hearing regarding extrajudicial juror communi-
cations for an abuse of discretion. United States v. Al-
Nos. 05-2037, 06-1035 & 06-1143 13
Shahin, 474 F.3d 941, 949 (7th Cir. 2007). Ricardo and
Luna argue that under United States v. Remmer, prejudice
should be presumed in this case and they were entitled to
an inspection of the extraneous materials and an eviden-
tiary hearing. 347 U.S. 227, 229 (1954). Remmer provides
that extrajudicial communications with a juror aimed at
influencing the jury’s verdict may be presumed to be
prejudicial. Id.; Al-Shahin, 474 F.3d at 949. Such presump-
tion is not conclusive, but the burden rests on the govern-
ment and the defendant must be fully apprised of the
matter at hand. Remmer, 347 U.S. at 229; Al-Shahin, 474
F.3d at 949.
We have previously held that the Remmer presumption
was not applicable given the particular facts of a case. See
Whitehead v. Cowan, 263 F.3d 708, 724 (7th Cir. 2001)
(“Even if the Remmer presumption applies to jury contacts
which do not involve jury tampering, however, we never-
theless conclude that the Remmer presumption does not
apply on these facts.”). Remmer itself was addressed to
third-party communications with a juror about the matter
pending before the jury in an attempt to influence the
verdict. 347 U.S. at 229; Whitehead, 263 F.3d at 725. The
facts of this case do not rise to the level of the misconduct
in Remmer, and no presumption of prejudice is war-
ranted in this case.
Ricardo and Luna emphasize that because the extrane-
ous materials were not inspected, we have no record of
their contents from which to determine prejudice. “While
this is indeed cause for concern, it is not necessarily a
decisive error. The significance of an off-the-record contact
or communication with one or more jurors will vary with
the circumstances of each case.” Whitehead, 263 F.3d at725 (citing United States v. Paneras, 222 F.3d 406, 411
(7th Cir. 2000); DeGrave v. United States, 820 F.2d 870,
872 (7th Cir. 1987)). In order for a hearing to be required,
14 Nos. 05-2037, 06-1035 & 06-1143
“the extraneous communication to the juror must be of a
character that creates a reasonable suspicion that fur-
ther inquiry is necessary to determine whether the
defendant was deprived of his right to an impartial jury.”
United States v. Spano, 421 F.3d 599, 605 (7th Cir. 2005)
(quoting Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.
2005)).
In this case, Ricardo and Luna have not raised a rea-
sonable suspicion that they have been deprived of the
right to an impartial jury. Prior to opening statements,
the district court instructed the jury that they were only
to consider the testimony of witnesses and exhibits
presented to them in court. The court further cautioned,
“don’t do any independent research, don’t get on the
internet and try to look something up. Don’t read, see, or
hear anything about the case.” Tr. p. 254. The district
court did not instruct the jury that they were prohibited
from carrying on their persons written materials unre-
lated to the case. Thus, there is no evidence that the
juror had violated any instruction of the court by possess-
ing these extraneous papers.
After being alerted to the defendants’ concerns, the
district court watched the juror and did not see the
juror consult the papers or divert his attention from the
trial to the papers. The district court then instructed all
jurors, prior to the conclusion of trial, that if they had
extra papers with them, they should not refer to them.
We presume that jurors conscientiously follow the
district court’s instructions. United States v. Puckett, 405
F.3d 589, 599 (7th Cir. 2005) (citing United States v.
Linwood, 142 F.3d 418, 426 (7th Cir. 1998)). “[T]his
presumption is only overcome if there is an ‘overwhelming
probability’ that the jury was unable to follow the instruc-
tion as given.” Doe v. Johnson, 52 F.3d 1448, 1458 (7th Cir.
1995); see Puckett, 405 F.3d at 599.
Nos. 05-2037, 06-1035 & 06-1143 15
Ricardo and Luna offer nothing but speculation in
support of their claim. Jurors are not searched for grocery
lists, calendars, bus schedules, or love letters prior to
service. There is no reason to think that the juror’s
papers were something more sinister. In fact, the record
appears to show a consensus amongst counsel and the
court that the papers were most likely just the witness list
that the district court had distributed during voir dire.
There may be cases where extraneous materials not
examined at trial should be presumed prejudicial, but
in this case, Ricardo and Luna were requesting a fishing
expedition without reason to suspect any prejudice. The
district court did not abuse its discretion by failing to
hold an evidentiary hearing, dismiss the juror, or grant
a mistrial.
C. Sufficiency of Evidence for Luna’s Convictions
Luna argues that the jury was not presented with
sufficient evidence to convict him of two counts of money
laundering based on his purchase of the 2004 Volkswagen
Touareg. He contends that there was insufficient evidence
that he knew that the Touareg was purchased with drug
sale proceeds or that the car would be used to facilitate
illegal activity.
At trial, the government presented evidence that, once
or twice, Luna had received cocaine for his personal use
from Espinoza. In December 2003, Luna drove to Ohio to
pick up between $40,000 and $50,000 in cash from some of
Espinoza’s cocaine customers. According to Espinoza, Luna
did not want to know what the money was for, but he
accepted payment for his services. The trip to Ohio was
corroborated by charges to Luna’s credit card. Luna also
had contact entries in his cell phone associated with
Espinoza, Ricardo, and David.
16 Nos. 05-2037, 06-1035 & 06-1143
The government intercepted several telephone calls
between Luna and Ricardo in February 2004 shortly
before their arrests. In these calls, Luna and Ricardo
discussed purchasing a 2004 Volkswagen Touareg from
James Orsinger. Ricardo gave Luna instructions regard-
ing the purchase. After the Touareg was purchased,
Luna and Ricardo discussed Luna driving the car to
California. Ricardo provided Luna with the name and
phone number of the person receiving the car and directed
Luna to fly back from Los Angeles. Luna called Ricardo
when he had successfully delivered the car.
Luna also agreed to have a GMC Yukon titled in his
name, which was used by David to deliver two kilograms
of cocaine on the day of his arrest. Luna suggested to
Ricardo that they should purchase insurance for the
Yukon so that Ricardo would not get a ticket if he were
pulled over. Ricardo told Luna that he wanted to change
the name on the Yukon’s title to reduce the connections
to Luna.
Luna agreed to speak with officers after his arrest. He
told contradictory tales, first that he drove the Touareg to
California with a friend who was giving the car to his ex-
wife, then that a man named Jose Martinez had given the
car to Luna in exchange for sexual favors and that the
two men drove the car to California together.
Luna was convicted of money laundering in violation of
18 U.S.C. §§ 1956(a)(1)(B) and 1957(a). The district court
accurately instructed the jury on the law. Section
1956(a)(1)(B) required, as relevant here, that Luna
engaged in the transaction “knowing that the property
involved . . . represent[ed] the proceeds of ” illegal drug
sales. Similarly, § 1957(a) required that Luna “knowingly
engage[d] . . . in a monetary transaction in criminally
derived property.” Thus, the government was required to
prove that Luna either had actual knowledge that the
Nos. 05-2037, 06-1035 & 06-1143 17
funds used to purchase the Touareg came from the distri-
bution of controlled substances, or that he consciously
avoided obtaining such knowledge. United States v.
Carani, ___ F.3d ___, No. 06-2007, 2007 WL 1946850, at
*5-6 (7th Cir. July 6, 2007); United States v. Carrillo, 435
F.3d 767, 780 (7th Cir. 2006).
The burden that faces an appellant challenging the
sufficiency of the evidence presented to a jury is an “uphill
battle” and “nearly insurmountable.” United States v.
Sanchez, 251 F.3d 598, 601 (7th Cir. 2001); United States
v. Szarwark, 168 F.3d 993, 995 (7th Cir. 1999) (quoting
United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.
1997)). We “view all the evidence and draw all reasonable
inferences in the light most favorable to the prosecution
and uphold the verdict if ‘any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’ ” United States v. Hicks, 368 F.3d 801,
804-05 (7th Cir. 2004) (quoting United States v. Gardner,
238 F.3d 878, 879 (7th Cir. 2001)).
Viewing the evidence in the light most favorable to the
government, a rational jury could have found that Luna
knew the money with which he purchased the Touareg
was derived from criminal activity, and specifically from
the distribution of controlled substances. Luna’s two
convictions for money laundering are supported by suf-
ficient evidence.
D. Evidence of Ricardo’s Prior Bad Acts
Ricardo argues that the district court erred by admitting
evidence of a prior bad act that was inadmissible under
FED. R. EVID. 403 and 404(b). The government presented
testimony at trial that during a traffic stop in Washington
state, Ricardo had represented himself as Luis Torres
and had provided the officer with a fraudulent driver’s
license in that name.
18 Nos. 05-2037, 06-1035 & 06-1143
Count One of the superseding indictment alleged that
Ricardo and his co-conspirators “used surveillance and
counter surveillance techniques, and other means to avoid
detection and apprehension by law enforcement authori-
ties,” in furtherance of a drug conspiracy. The district
court allowed the evidence, concluding that it was both
relevant and direct evidence of a crime charged and that
the prejudicial effect of the evidence did not substantially
outweigh its probative value. The district court did,
however, issue a limiting instruction to the jury that the
evidence was not presented to show that Ricardo com-
mitted a crime simply by using a fraudulent driver’s
license.
We review the district court’s evidentiary rulings for an
abuse of discretion. Evans, 486 F.3d at 325. The district
court, in this case, was well within its discretion to allow
the evidence of Ricardo’s false representations. The traffic
stop occurred on May 6, 2002. The superseding indict-
ment alleged that the conspiracy began in October 2000
and continued through February 12, 2004, putting the
traffic stop squarely within the course of the conspiracy.
As the district court concluded, the testimony was rele-
vant and direct evidence of the conspiracy as alleged in
Count One of the indictment.
E. Wamsley’s In-Court Identification of Ricardo
Ricardo argues that the district court erred by allowing
Wamsley’s in-court identification of Ricardo to stand over
defense objection when Wamsley first stated that he
did not see Ricardo in the courtroom. The following ex-
change took place between the government and Wamsley:
Government Counsel: Do you see the man you just
named as Ricardo in court today?
Nos. 05-2037, 06-1035 & 06-1143 19
Wamsley: No, I don’t see him, unless he grew his
hair out. That’s him in the glasses.
Government Counsel: Describe what you mean
glasses.
Wamsley: The guy with the—
The Court: Can you point him out?
Wamsley: The dark-haired one with the glasses.
The Court: Identify what he’s wearing.
Wamsley: He’s wearing a shirt like mine.
Government Counsel: May the record reflect the in-
court identification of the defendant Ricardo Gallardo?
The Court: It may.
Tr. p. 662. The district court overruled an objection by
Ricardo’s counsel, and advised counsel that he could cross
examine the witness on the subject. None of the defense
counsel cross examined Wamsley about the identification.
Once again, we review the district court’s evidentiary
rulings for an abuse of discretion. Evans, 486 F.3d at
325. The record does not reveal anything improper. At
worst it demonstrates that Wamsley had difficulty ex-
pressing himself during his in-court identification of
Ricardo. The district court stepped in to aid the witness
and there is nothing in the record to suggest that the
government did anything improper. The district court
did not abuse its discretion by allowing Wamsley’s in-court
identification of Ricardo.
F. Ricardo’s Sentencing
Ricardo next argues that the district court improperly
determined his base offense level under the Sentencing
Guidelines for the drug weight involved and improperly
20 Nos. 05-2037, 06-1035 & 06-1143
applied an enhancement for Ricardo’s leadership role
in the conspiracy. Furthermore, he argues that the dis-
trict court failed to adequately address the sentencing
factors under 18 U.S.C. § 3553(a) and to impose a reason-
able sentence.
At sentencing, the district court determined that
Ricardo’s base offense level was thirty-eight, based upon
a quantity of 150 or more kilograms of cocaine. U.S.S.G.
§ 2D1.1(a)(3)(C)(1). The district court credited the testi-
mony of Espinoza, Wamsley, Fricks, and Wilson as well as
the plea agreements of Espinoza and David to determine
that the conspiracy involved well over 150 kilograms of
cocaine. The district court also found that this amount
was corroborated by the cash, vehicles, and other assets
of the defendant given that Ricardo did not hold a legiti-
mate job during the course of the conspiracy.
The district court further applied a four-level adjustment
for being the organizer or leader of criminal activity
involving five or more participants, bringing Ricardo’s
total offense level to forty-two. U.S.S.G. § 3B1.1(a). The
district court found, based upon all of the evidence, that
Ricardo controlled David, Luna, and Gesswein. The
Guidelines only require that the defendant controlled one
other member of the criminal enterprise. United States
v. Blaylock, 413 F.3d 616, 621 (7th Cir. 2005). The dis-
trict court considered the direction Ricardo gave to the
other actors, his recruiting function within the organiza-
tion, the nature and scope of the criminal activity, and
that he was at the highest level of the organization both in
terms of decision-making authority and compensation.
See id.; United States v. Sadiq, 116 F.3d 213, 215 (7th
Cir. 1997) (“Factors . . . include whether the person
had decision making authority, whether he recruited ac-
complices, his degree of planning of the offense, the scope
of the illegal activity and the degree of control he exer-
cised over others.”). Ricardo does not appear to take
Nos. 05-2037, 06-1035 & 06-1143 21
particular issue with this enhancement, except that the
district court made findings of fact beyond those made by
the jury.
Ricardo depicts the sentencing law of this circuit as
unsettled and hazy; this is not the case. The district court
is first required to correctly calculate the advisory Sen-
tencing Guidelines range, which may include making
findings of fact by a preponderance of the evidence. United
States v. Hawkins, 480 F.3d 476, 477 (7th Cir. 2007) (citing
United States v. Roberson, 474 F.3d 432, 435 (7th Cir.
2007); United States v. Caldwell, 448 F.3d 287, 290 (5th
Cir. 2006)). Only if the factual determinations require a
particular sentence, or result in a sentence exceeding the
statutory maximum, must they be made by a jury beyond
a reasonable doubt. United States v. Booker, 543 U.S. 220,
259-60 (2005); Hawkins, 480 F.3d at 477-78; United States
v. Dean, 414 F.3d 725, 730 (7th Cir. 2005). Next, the
district court must determine what sentence to apply, be
it inside or outside of the advisory range, by considering
and complying with the standard set forth in 18 U.S.C.
§ 3553(a). Hawkins, 480 F.3d at 477.
“We review the district court’s interpretation and
application of the Sentencing Guidelines de novo, and its
findings of fact for clear error.” United States v. Fife, 471
F.3d 750, 752 (7th Cir. 2006) (citing United States v. Ellis,
440 F.3d 434, 436 (7th Cir. 2006)). “A finding of fact is
clearly erroneous only if, based upon the entire record, we
are left with the definite and firm conviction that a
mistake has been committed.” United States v. Chamness,
435 F.3d 724, 726 (7th Cir. 2006) (citations and quota-
tions omitted).
There was nothing whatsoever erroneous about the
district court’s finding that the conspiracy involved 150
kilograms or more of cocaine, setting Ricardo’s base offense
level at thirty-eight. Nor did the district court err, either
22 Nos. 05-2037, 06-1035 & 06-1143
in its legal or factual determinations, in applying the four-
level leadership enhancement. There was adequate
evidence supporting the determination that Ricardo
controlled the actions of multiple members of the criminal
enterprise. With a total offense level of forty-two and a
criminal history category of I, Ricardo’s advisory Sen-
tencing Guidelines range was 360 months to life, with a
mandatory minimum of 120 months.
This brings us to the district court’s application of the
factors in 18 U.S.C. § 3553(a) and the reasonableness of
the sentence imposed. The district court sufficiently
addressed the factors in § 3553(a), noting the serious
nature of the offense, the need to deter others, the sub-
stantial sentences given to Ricardo’s co-conspirators, and
Ricardo’s clean criminal history and lack of violence. Based
upon those factors, the district court determined that a
sentence within the advisory Sentencing Guidelines
range was appropriate. The district court sentenced
Ricardo to 360 months on Counts One, Two, and Three, to
240 months on Counts Nine and Ten, and to 120 months
on Counts Eleven and Twelve, with the sentences on all
Counts running concurrently. The district court explained
that Ricardo’s age, lack of criminal history, and lack of
violence warranted a sentence at the bottom of the Guide-
lines range.
The district court is not required to discuss each factor
in § 3553(a). “It is enough that the record confirms that
the judge has given meaningful consideration to the
section 3553(a) factors, and the record supplies us with
that assurance here.” United States v. Williams, 425 F.3d
478, 480 (7th Cir. 2005). Thus, the district court complied
completely with the required sentencing procedures.
The only remaining question is whether the sentence
was reasonable. The Supreme Court recently upheld a
presumption of reasonableness for in-Guidelines sen-
Nos. 05-2037, 06-1035 & 06-1143 23
tences on appellate review. Rita v. United States, 127
S. Ct. 2456, 2467-68 (2007); see United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). As our circuit precedent
reflects, “[t]he defendant can rebut this presumption
only by demonstrating that his or her sentence is unrea-
sonable when measured against the factors set forth in
§ 3553(a).” Mykytiuk, 415 F.3d at 608.
Ricardo cannot meet this burden. He was an organizer of
a large-scale drug conspiracy, and he offers nothing to
suggest that his sentence offends the § 3553(a) factors. The
mitigating factors that Ricardo relies on—his age, lack
of violence and criminal history, and the supportive
letters from his friends and family—do not outweigh the
countervailing factors considered by the district court.
The sentence of 360 months, at the very bottom of the
advisory Sentencing Guidelines range, was not unreason-
able.
G. David’s Sentencing
David argues that the district court erred by failing to
grant him a downward sentencing adjustment for playing
a minor role in the offense pursuant to U.S.S.G. § 3B1.2(b).
At sentencing, the district court found that David played
an essential role in the conspiracy. “His role was one of a
trusted associate to his brother, who apparently was the
highest up person in this conspiracy . . . .” Tr. p. 23.
Because of this position, David was entrusted to transfer
large quantities of drugs and cash. Furthermore, he was
given access to the stash house where the drugs were
stored. The district court gave weight to David’s limited
time spent in the conspiracy, but found that it did not
warrant a minor role adjustment, particularly because
the conspiracy was cut short only by the members’ arrests.
While his role was not as great as Ricardo’s and
Espinoza’s, it was nonetheless essential.
24 Nos. 05-2037, 06-1035 & 06-1143
Without the minor role adjustment, David’s total offense
level was twenty-nine. His criminal history category was
I, and he was exempted from the 120 month statutory
minimum sentence because he qualified under the safety-
valve provision. U.S.S.G. § 2D1.1(b)(7) (2004). David’s
sentencing range was 87 to 108 months. The district
court sentenced him to 87 months’ imprisonment, to run
concurrently with the sentences given on the three
Counts to which he pled guilty, followed by three years’
supervised release.
As stated previously, we review the district court’s
interpretation of the Sentencing Guidelines de novo and
its findings of fact for clear error. Fife, 471 F.3d at 752
(citing Ellis, 440 F.3d at 436). David’s main argument in
support of a minor role adjustment is that, in relation to
the other members of the conspiracy, he only participated
for a short time. So, should the length of David’s involve-
ment, only about a month, necessarily entitle him to a two-
level downward adjustment?
David’s brief engagement in the conspiracy is reflected
in his base offense level, but he is not precluded from the
adjustment simply because he was held accountable only
for the fifteen kilograms of cocaine and one kilogram of
heroin that he actually handled. United States v.
Rodriguez-Cardenas, 362 F.3d 958, 961 (7th Cir. 2004).
“However, where each person was an ‘essential component’
in the conspiracy, the fact that other members of the
conspiracy were more involved does not entitle a defendant
to a reduction in the offense level.” United States v. McKee,
389 F.3d 697, 700 (7th Cir. 2004) (quoting United States v.
Castillo, 148 F.3d 770, 776 (7th Cir. 1998)). Furthermore,
David’s role should be compared to that of the average
member of the conspiracy, not with the leaders, such as
Ricardo, who received an enhancement for his organizing
role. United States v. McGee, 408 F.3d 966, 987 (7th Cir.
2005).
Nos. 05-2037, 06-1035 & 06-1143 25
We cannot say that the amount of time David spent in
the conspiracy is necessarily determinative on this issue.
The district court explicitly considered the length of
David’s involvement, but nonetheless found that his role
was essential to the success and scope of the conspiracy.
David handled large quantities of cash and drugs, executed
essential deliveries, and his involvement was on par
with that of the average member of this conspiracy. The
district court did not clearly err by failing to grant the
minor role adjustment under U.S.S.G. § 3B1.2(b).
III. CONCLUSION
For the foregoing reasons, David Gallardo’s sentence
is AFFIRMED, Ricardo Gallardo’s conviction and sentence
are AFFIRMED, and Jorge Luna’s conviction is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-15-07