United States v. Joel Alvarado-Santiago ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-2526 & 19-2937
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGELICA GUZMAN-CORDOBA
and JOEL ALVARADO-SANTIAGO,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 17-cr-00165 — Tanya Walton Pratt, Judge.
____________________
ARGUED DECEMBER 7, 2020 — DECIDED FEBRUARY 12, 2021
____________________
Before SYKES, Chief Judge, and BRENNAN and ST. EVE, Cir-
cuit Judges.
ST. EVE, Circuit Judge. Between 2016 and 2017, Angelica
Guzman-Cordoba and Joel Alvarado-Santiago participated in
an extensive drug trafficking organization operating out of In-
dianapolis and Chicago. Nine defendants were ultimately in-
dicted as part of a federal investigation into the organization’s
activities. This consolidated appeal concerns just two of those
2 Nos. 19-2526 & 19-2937
defendants: Guzman-Cordoba worked as a drug courier,
drug seller, and stash house guard for the organization while
Alvarado-Santiago, known as “el catero” or “el kartero” (“the
mailman”), laundered the drug proceeds by wiring large
sums from the grocery store that he managed in Indianapolis
to California and Mexico.
In April 2019, a jury convicted Guzman-Cordoba of con-
spiracy to distribute and possession with intent to distribute
controlled substances and distribution of methamphetamine.
The jury also convicted Alvarado-Santiago of conspiracy to
launder money. At trial, Guzman-Cordoba presented a du-
ress defense, in which she asserted that she had been forced
to join the drug trafficking organization through violence and
threats of violence to herself and her family. Alvarado-Santi-
ago defended himself on the grounds that he did not know
that the money he had sent to California and Mexico was drug
money. He claimed he was just an unknowing and innocent
conduit for the funds.
On appeal, Guzman-Cordoba and Alvarado-Santiago ar-
gue that the district court made several errors during trial.
First, Guzman-Cordoba maintains that the district court erred
in limiting the evidence she attempted to introduce regarding
her duress defense and also erred in instructing the jury on
that defense. Guzman-Cordoba further contends that the dis-
trict court erred in ordering her to forfeit roughly $10,000 in
cash that was found at one of the organization’s stash houses.
For his part, Alvarado-Santiago insists that the district court
erred in only admitting a portion of his post-arrest statement
and further erred in admitting a statement by Guzman-Cor-
doba without limiting the jury’s ability to consider that evi-
dence against him. Finally, he claims the district court erred
Nos. 19-2526 & 19-2937 3
in giving the jury an instruction on deliberate avoidance of
knowledge, also known as the “ostrich instruction.”
Finding no reversible error as to either Guzman-Cordoba
or Alvarado-Santiago, we affirm their convictions and sen-
tences.
I. Background
This case is about Guzman-Cordoba and Alvarado-Santi-
ago’s participation in a large-scale drug trafficking organiza-
tion (“DTO”) operating out of Indianapolis. Co-conspirators
Ricardo Ochoa-Beltran and Miguel Lara-Leon led the organi-
zation and were also indicted for their crimes. 1 At their direc-
tion, several co-conspirators distributed methamphetamine,
heroin, cocaine, and marijuana and sent the proceeds to Cali-
fornia and Mexico. The operation included several stash
houses in the Indianapolis area.
Cesar Salgado, another co-conspirator and Guzman-Cor-
doba’s boyfriend, brought her into the organization. Over
time, Guzman-Cordoba began to sell drugs directly on behalf
of the DTO, guard an Indianapolis stash house, and carry
drugs and money between Indianapolis and Chicago. During
the investigation of the DTO, Guzman-Cordoba sold drugs to
confidential informants and to undercover Drug Enforcement
1 The district court planned to try Ochoa-Beltran, Lara-Leon, Guzman-
Cordoba, and Alvarado-Santiago together, in one multidefendant trial.
However, on the eve of trial, Ochoa-Beltran and Lara-Leon pled guilty.
The district court accepted their guilty pleas and sentenced them accord-
ingly. They also appealed their convictions and sentences, but their coun-
sel informs us through Anders briefs that there are no non-frivolous issues
for appeal. See Nos. 19-2979 and 19-3191. We will address their appeals by
separate order.
4 Nos. 19-2526 & 19-2937
Administration agents in controlled-buy transactions. Guz-
man-Cordoba was charged with conspiracy to distribute con-
trolled substances in violation of 21 U.S.C. § 846 and with dis-
tributing methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2.
Alvarado-Santiago was not charged as a co-conspirator in
the DTO, but was instead charged with conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956. As the
manager of his family’s grocery store, Alvarado-Santiago
laundered the drug proceeds through the grocery store’s wire
transfer service, offered through InterCambio Express. Over
the course of two years, his store funneled hundreds of thou-
sands of dollars in drug trafficking proceeds out of Indianap-
olis.
Alvarado-Santiago employed several strategies to avoid
suspicion or detection by InterCambio Express or the author-
ities. Although members of the DTO might drop off upwards
of $10,000 in cash to transfer on a particular day, Alvarado-
Santiago broke the funds up into smaller amounts to avoid
triggering additional review by InterCambio Express. In ad-
dition, he routinely notified his co-conspirators if the system
flagged destination names or addresses as suspicious. He pro-
vided a receipt from each transaction to a member of the DTO
(often Salgado), but those receipts never contained a cus-
tomer’s signature. Salgado or another co-conspirator paid Al-
varado-Santiago $400 for each $10,000 drop that he success-
fully wired.
At trial, the government introduced evidence of the con-
spiracy through the testimony of a confidential informant,
several law enforcement officers, and Salgado, who pled
guilty and cooperated with the government. Through these
Nos. 19-2526 & 19-2937 5
witnesses, the government introduced evidence regarding
how the DTO shipped drugs through the mail, the receipts of
wire transfers from Alvarado-Santiago’s grocery store, a
ledger kept by Salgado of those wire transfers, cell phones
used by the DTO, text messages between co-conspirators
from those phones, videos and pictures from some of the con-
trolled-buy transactions, and the fruits of a search warrant
that law enforcement executed at one of the stash houses that
Guzman-Cordoba guarded, including drugs (worth over
$100,000), firearms, scales and other tools of the drug trade,
and cash.
Guzman-Cordoba proffered a duress defense, which the
district court permitted her to present to the jury. 2 She took
the stand in her own defense and testified that she had acted
under duress throughout the duration of her involvement
with the DTO. She had fallen under the organization’s control
through Salgado—her boyfriend—who ultimately cooper-
ated with the government and testified against her. She feared
for her life and those of her children, and members of the con-
spiracy had made real and immediate threats against her. At
times, she was not permitted to see her children, including a
2 The duress defense requires proof that “(1) [the defendant] reasonably
feared immediate death or serious bodily harm unless she committed the
offense; and (2) there was no reasonable opportunity to refuse to commit
the offense and avoid the threatened injury.” United States v. Sawyer, 558
F.3d 705, 711 (7th Cir. 2009) (citing United States v. Jocic, 207 F.3d 889, 892
(7th Cir. 2000)). “A defense of duress or coercion requires evidence of pre-
sent, immediate, or impending violence. … [P]otential future violence, …
is an insufficient evidentiary foundation for a duress defense.” United
States v. McDowell, 687 F.3d 904, 911–12 (7th Cir. 2012) (internal citations
omitted).
6 Nos. 19-2526 & 19-2937
young baby, and she believed that her babysitter was under
the control of the DTO. She testified in graphic detail to a beat-
ing that she received at the hands of a DTO member. Accord-
ing to Guzman-Cordoba, the violence of the DTO was “ever
present” and she lived in constant fear for herself and her chil-
dren. The jury heard further evidence through Salgado of
other beatings experienced by non-compliant members of the
DTO, including one incident in which Ochoa-Beltran, the
leader of the organization, forcibly extracted another man’s
teeth while at the stash house. Guzman-Cordoba was aware
of the teeth-pulling incident and understood this conduct as
part of Ochoa-Beltran’s efforts to manipulate and control his
foot soldiers.
Alvarado-Santiago defended himself by attacking the
government’s contention that he was aware that he was laun-
dering drug money. He also testified in his defense. He de-
nied that he was the individual referred to as “kartero” and
denied knowing that he was laundering drug money. He in-
stead testified that he had written down some of the names
he had been asked to wire money to in order to audit, or in-
vestigate, what he thought might be suspicious transactions.
Despite these defenses, the jury convicted both Guzman-
Cordoba and Alvarado-Santiago of all charges.
II. Guzman-Cordoba’s Appeal
On appeal, Guzman-Cordoba makes three arguments.
First, she argues that the district court improperly limited the
evidence of her duress defense. Second, she argues that the
district court erred when instructing the jury regarding her
duress defense. Based on these objections, Guzman-Cordoba
contends that she is entitled to a new trial. Third, she asks this
Nos. 19-2526 & 19-2937 7
Court to vacate the district court’s forfeiture order, because
the district court failed to comply with Federal Rule of Crim-
inal Procedure 32.2, which governs criminal forfeiture.
A. Evidence of Other Deaths
Guzman-Cordoba first argues that the district court
abused its discretion in barring evidence of two deaths that
she argued were relevant to her duress defense. The district
court allowed Guzman-Cordoba to present a duress defense, 3
and instructed the jury accordingly, but the court limited the
supporting evidence on relevance grounds. Specifically, the
court did not permit her counsel to cross examine the cooper-
ating witness, Salgado, about the death of another DTO mem-
ber, “Pac-Man.” The district court also prohibited counsel
from eliciting testimony from Guzman-Cordoba about the
3 We have been reluctant to recognize the duress defense in prior cases
bearing some similarity to this one. “[W]e are dubious of the defense [of
duress] in circumstances where the defendant engaged in numerous drug
transactions over an extended period of time, accepted the proceeds from
the drug sales, and made no effort to contact authorities or permanently
flee the area.” United States v. McGee, 408 F.3d 966, 983 (7th Cir. 2005) (cit-
ing United States v. Bailey, 444 U.S. 394, 410 (1980)).
We also note that the threat of future violence, often implied and
sometimes express, is frequently the curre—Œ¢ȱ˜ȱ›žȱ›ŠĜŒ”’—ȱ
operations, and allowing a duress defense in circumstances such
as this where the defendant has not shown the requisite elements
˜ž•ȱ ̘˜ȱ ›žȱ ™›˜œŽŒž’˜—œȱ ’‘ȱ “ž›¢ȱ ’—œ›žŒ’˜—œȱ ’—ȱ ŒŠœŽœȱ
where they are unwarranted.
Sawyer, 558 F.3d at 713. Because the parties have not raised this issue on
appeal, the Court need not take a position on whether the duress defense
was proper under these circumstances.
8 Nos. 19-2526 & 19-2937
death of her father, whom she believed the DTO had mur-
dered in Guatemala for her non-compliance with DTO orders.
We review properly preserved objections to a district
court’s evidentiary decisions for an abuse of discretion. United
States v. Washington, 962 F.3d 901, 905 (7th Cir. 2020). “Abuse
of discretion is, of course, a highly deferential standard. We
give special deference to evidentiary rulings[.]” United States
v. Groce, 891 F.3d 260, 268 (7th Cir. 2018). A trial court abuses
its discretion only when “no reasonable person could take the
view adopted by the trial court.” United States v. Cash, 394 F.3d
560, 564 (7th Cir. 2005).
Here, the district court reasoned that the two deaths were
irrelevant to Guzman-Cordoba’s duress defense. We agree.
Regarding Pac-Man, Guzman-Cordoba failed to identify any
evidence that she knew Pac-Man, knew of his death, or be-
lieved that the DTO had a hand in his death. Indeed, even Sal-
gado was unaware of who specifically killed Pac-Man. Given
this complete lack of connection to Guzman-Cordoba, Pac-
Man’s death is not relevant to the question of whether she
“reasonably feared immediate death or serious bodily harm”
at the DTO’s direction. Sawyer, 558 F.3d at 711. At oral argu-
ment, counsel argued that the district court did not allow
Guzman-Cordoba to develop the record on whether she had
any direct knowledge of Pac-Man’s demise. It is counsel’s re-
sponsibility to develop the necessary record, however, not the
court’s, and appellate counsel was unable to point to any-
where in the record where trial counsel requested the oppor-
tunity to develop the record on this question or where the dis-
trict court denied counsel the opportunity to do so.
Regarding Guzman-Cordoba’s father, he died after she
had been arrested, so the fact of his death, and even her
Nos. 19-2526 & 19-2937 9
suspicions that the DTO murdered him to punish her, could
not have impacted her conduct while she was engaged in the
conspiracy. Furthermore, she did not proffer any evidence be-
yond her own hunch to support her contention that the DTO
murdered her father.
We have repeatedly cautioned that the duress defense is
limited to circumstances involving threats of immediate or
impending death or serious bodily harm. See Sawyer, 558 F.3d
at 711 (emphasizing that the duress defense requires a show-
ing that the defendant “acted under a threat of a greater im-
mediate harm” and that “fear of death or serious bodily injury
is generally insufficient”); United States v. Fiore, 178 F.3d 917,
923 (7th Cir. 1999) (emphasizing the need for an immediate
threat of death or serious bodily injury such that general
threats were insufficient). “Fear, by itself, will not legally jus-
tify the commission of the criminal act. There must be evi-
dence that the threatened harm was present, immediate, or
impending.” United States v. Tanner, 941 F.2d 574, 587 (7th Cir.
1991). Given the restricted reach of the duress defense, the dis-
trict court did not abuse its discretion in limiting Guzman-
Cordoba’s evidence to acts or threats of violence of which she
was aware while committing crimes on behalf of the DTO.
In resisting this conclusion, Guzman-Cordoba points to a
section of Sawyer explaining that in the context of an ongoing
crime, like a conspiracy, a defendant claiming duress must
have “ceased committing the crime as soon as the claimed du-
ress lost its coercive force.” Sawyer, 558 F.3d at 711. In other
words, once the duress ends, so must the criminal behavior,
or else the defendant loses the defense. Guzman-Cordoba
mischaracterizes Sawyer by arguing that since the duress did
not end with her arrest (because she believed that the DTO
10 Nos. 19-2526 & 19-2937
murdered her father to punish her for being arrested), her
post-arrest experience is relevant to proving her defense. We
reject this argument. The principle that the illegal acts must
cease as soon as the duress ceases does not mean that coercive
acts that took place after her arrest are relevant to determining
whether Guzman-Cordoba felt coerced when she committed the
illegal acts. This is not to say that post-arrest conduct by a crim-
inal enterprise will never be relevant to a duress defense by
one of its members. But in this case, Guzman-Cordoba did not
sufficiently connect her father’s death with any reasonable
fear of imminent and serious bodily harm while she engaged
in criminal conduct.
Guzman-Cordoba further contends that excluding the ev-
idence of her father’s death left a conceptual void in her story.
She points to her conviction as evidence that the jury did not
understand her narrative. But a conviction does not mean that
the jury failed to understand her defense. It just rejected it.
Indeed, the district court’s limitation on Guzman-Cordoba’s
duress defense did not deprive her of her ability to present
the defense. To the contrary, the trial transcript contains evi-
dence that the organization recruited Guzman-Cordoba
through Salgado, that other co-conspirators abused and beat
her, and that she was terrified to leave the organization. The
district court gave Guzman-Cordoba wide latitude to argue
her defense and to testify regarding the violence she experi-
enced at the hands of various DTO members. In her opening
statement, defense counsel detailed how Guzman-Cordoba
was beaten by members of the conspiracy. For example, she
explained that two men beat her “until she was bloody.” She
was “naked, lying bleeding, and crying on the floor. … [And]
at the time, [she] was 21 years old, had just had a baby, and
she [was] on the floor sobbing.” Guzman-Cordoba then
Nos. 19-2526 & 19-2937 11
testified in detail to the beating she received. She described
that she was beaten by a man twice her size, that the basement
floor was covered in blood, and that the beating lasted from 9
p.m. until 3 a.m. She further testified that she thought she
“was going to die at that time.” She made clear that she could
not say no to the drug traffickers’ requests, because she lived
in fear that members of the DTO would hurt her. She “was
afraid they would beat [her] up or … shoot [her] in the head.”
In addition, she was permitted to cross-examine Salgado
about the violence against other members that she was aware
of prior to her arrest. In sum, the jury had a detailed picture
of the terror and violence that Guzman-Cordoba claimed she
experienced; the fact that the jury did not credit her story does
not equate to a conceptual void in its telling.
In light of the facts of this case and Guzman-Cordoba’s in-
ability to connect either death with any reasonable fear of im-
minent and serious bodily harm, the district court did not
abuse its discretion in disallowing this evidence.
B. Duress Instruction
Guzman-Cordoba next argues that the district court erred
in its duress instruction. The district court provided the Sev-
enth Circuit pattern jury instruction to the jury, which stated:
To establish that she was coerced, Defendant Angelica
Naomi Guzman-Cordoba must prove that both of the
following things are more likely true than not true:
1. She reasonably feared that members of the drug traf-
ꌔ’—ȱ ˜›Š—’£Š’˜—ȱ ˜ž•ȱ ’––Ž’ŠŽ•¢ȱ ”’••ȱ ˜›ȱ œŽ›’Ȭ
˜žœ•¢ȱ’—“ž›Žȱ‘Ž›ȱ’ȱœ‘Žȱ’ȱ—˜ȱŒ˜––’ȱ‘Žȱ˜ěŽ—œŽDzȱŠ—
2. She had no reasonable opportunity to refuse to com-
–’ȱ‘Žȱ˜ěŽ—œŽȱŠ—ȱŠŸ˜’ȱ‘Žȱ‘›ŽŠŽ—Žȱ‘Š›–ǯ
12 Nos. 19-2526 & 19-2937
Guzman-Cordoba argues this instruction was erroneous be-
cause it failed to indicate that the threatened injury could be
to her or her family.
At the jury instruction conference, the government ob-
jected to Guzman-Cordoba’s request for the duress instruc-
tion. The district court overruled the government’s “strenu-
ous objection” and instructed the government that it would
“have to convince this jury beyond a reasonable doubt that
she was not under duress.” Guzman-Cordoba’s counsel re-
quested the Seventh Circuit’s pattern instruction, which in-
cludes a bracketed option of instructing the jury on threats of
harm to the defendant or “specified third persons.” The rec-
ord is not clear whether counsel requested that the jury in-
struction indicate that the threatened harm could be to both
the defendant and third persons. Even if she did, defense
counsel did not raise an objection to the court’s chosen phras-
ing of the defense, which referred only to harm to the Defend-
ant, at the conference. On the following trial day, the district
court again confirmed with the parties that all objections had
been made and that the parties otherwise agreed to the in-
structions. The court specifically asked Guzman-Cordoba’s
counsel if she had any other objections, to which counsel re-
sponded, “No, Your Honor. I approve them.”
Because Guzman-Cordoba’s counsel approved the jury in-
structions, she has waived her argument that the duress in-
struction was incomplete. See, e.g., United States v. Natale, 719
F.3d 719, 729 (7th Cir. 2013) (“[A] defendant's affirmative ap-
proval of a proposed instruction results in waiver[.]”) (citing
United States v. Courtright, 632 F.3d 363, 371 (7th Cir. 2011)).
“[W]aiver extinguishes all appellate review of an issue.”
United States v. Turner, 651 F.3d 743, 747 (7th Cir. 2011).
Nos. 19-2526 & 19-2937 13
C. Forfeiture
Finally, as part of Guzman-Cordoba’s sentence, the dis-
trict court ordered forfeiture of a small arsenal of revolvers,
pistols, handguns, and rifles found at the stash house, as well
as $9,795 that was found with the weapons, consistent with
the superseding indictment, which provided for the forfeiture
of all property derived from the proceeds of the crime. Guz-
man-Cordoba argues that the district court violated Federal
Rule of Criminal Procedure 32.2, which sets forth the proce-
dural requirements of criminal forfeiture, by failing to enter a
preliminary order of forfeiture and by failing to require the
jury to find a nexus between the cash and Guzman-Cordoba’s
crimes. Guzman-Cordoba does not contest the forfeiture of
the weapons; she only contests the forfeiture of the cash.
Rule 32.2 sets forth several important procedural require-
ments for forfeiture in a criminal proceeding. As relevant to
this appeal, subsection (b)(2) of the Rule provides that “[i]f the
court finds that property is subject to forfeiture, it must
promptly enter a preliminary order of forfeiture.” Id. at
32.2(b)(2) (emphasis added). This preliminary forfeiture order
“authorizes the Attorney General … to seize the specific prop-
erty subject to forfeiture.” Id. at 32.2(b)(3). The purpose of this
preliminary order is to give the defendant notice of the prop-
erty subject to forfeiture and to provide the court with an op-
portunity to revise or modify the forfeiture order. See id. at
32.2(b)(2)(B) (“Unless doing so is impractical, the court must
enter the preliminary order sufficiently in advance of sentenc-
ing to allow the parties to suggest revisions or modifications
before the order becomes final[.]”); id. at 32.2 advisory com-
mittee’s note to the 2009 amendment (“Many courts have de-
layed entry of the preliminary order until the time of
14 Nos. 19-2526 & 19-2937
sentencing. This is undesirable because the parties have no
opportunity to advise the court of omissions or errors in the
order before it becomes final as to the defendant[.]”); see also
United States v. Dahda, 852 F.3d 1282, 1297 (10th Cir. 2017).
Here, the district court did not enter a preliminary forfeiture
order and therefore violated this subsection of the Rule. See
Dahda, 852 F.3d at 1297.
Second, in cases tried to a jury, “the court must determine
before the jury begins deliberating whether either party re-
quests that the jury be retained to determine the forfeitability
of specific property if it returns a guilty verdict.” Fed. R. Crim.
P. 32.2(b)(5)(A). If either party seeks to have the jury deter-
mine forfeiture, then “the government must submit a pro-
posed Special Verdict Form … asking the jury to determine
whether the government has established the requisite nexus
between the property and the offense committed by the de-
fendant.” Id. at 32.2(b)(5)(B). Here, the district court did not
ask whether either party wanted the jury to decide the forfei-
ture issue. Accordingly, the district court violated this subsec-
tion as well. United States v. Fisher, 943 F.3d 809, 814 (7th Cir.
2019), cert. denied, 140 S. Ct. 2631 (2020) (“Because nothing in
the record indicates the judge here considered or inquired
whether [the defendants] would like to waive [their] right to
a jury trial on the issue of forfeiture, Rule 32.2(b)(5)(A) was
violated.”).
Nevertheless, because Guzman-Cordoba did not raise ei-
ther of these errors before the district court, they are subject
to plain error review. See Fisher, 943 F.3d at 814 (applying
plain error review where defendant did not object to district
court’s failure to put forfeiture question to the jury); Dahda,
852 F.3d at 1297 (applying plain error review where
Nos. 19-2526 & 19-2937 15
defendant did not object to district court’s failure to enter a
preliminary forfeiture order). “Under plain-error review, a
defendant must show (1) an ‘error or defect,’ (2) that is ‘clear
or obvious,’ (3) affecting his ‘substantial rights,’ (4) that ‘seri-
ously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” United States v. Wehrle, 985 F.3d 549,
No. 19-2853, 2021 WL 140553, at *6 (7th Cir. Jan. 15, 2021) (cit-
ing Puckett v. United States, 556 U.S. 129, 135 (2009)). Here, the
district court plainly erred in failing to enter a preliminary or-
der of forfeiture and in failing to ascertain if the parties sought
the jury’s determination of forfeiture. On plain error review,
however, we will vacate the court’s forfeiture order only if the
court’s errors affected Guzman-Cordoba’s substantial rights.
“An error affects a defendant’s substantial rights if the out-
come would have been different but for the error.” United
States v. Ryan, 885 F.3d 449, 454 (7th Cir. 2018) (citing Fed. R.
Crim. P. 52(b); Molina-Martinez v. United States, 136 S. Ct. 1338,
1343 (2016)); see also Fisher, 943 F.3d at 814.
Guzman-Cordoba fails to explain how the district court’s
failure to enter a preliminary order of forfeiture would have
impacted the outcome of the proceeding. She also does not
argue that she lacked notice of the property subject to forfei-
ture. Because the indictment put Guzman-Cordoba on notice
of the property the government sought to forfeit, the outcome
of the proceeding was not impacted by the district court’s er-
ror. See Dahda, 852 F.3d at 1297–98.
Regarding the district court’s failure to put the forfeiture
question to the jury, in order to prevail, Guzman-Cordoba
must show that no reasonable juror would not have found the
required nexus between the cash and her crimes. “Determin-
ing forfeitability without inquiring whether a party would
16 Nos. 19-2526 & 19-2937
like to submit the issue to the jury does not affect the defend-
ant’s substantial rights when ‘no reasonable juror could have
found there was not a sufficient nexus between the property
and the offense.’” Fisher, 943 F.3d at 814 (citing United States
v. Cherry, 921 F.3d 690, 693 (7th Cir. 2019)). Here, “[n]o rea-
sonable juror could have failed to find a nexus” between the
cash seized from the stash house and Guzman-Cordoba’s
drug trafficking activities. See Cherry, 921 F.3d at 693. The
roughly $10,000 in cash was discovered in a known stash
house, along with a veritable arsenal of weapons, drugs, and
other items related to the drug trade. Guzman-Cordoba’s ar-
gument that the money was derived from her lawful employ-
ment as a restaurant manager and painter is unavailing given
the location and context in which this significant amount of
cash was discovered.
Accordingly, on plain error review, neither of the district
court’s Rule 32.2 errors affected Guzman-Cordoba’s substan-
tial rights. The forfeiture order is therefore affirmed.
III. Alvarado-Santiago’s Appeal
Alvarado-Santiago asks the Court to vacate his sentence
and remand for a new trial because, he argues, the district
court made two evidentiary errors and improperly gave the
jury the “ostrich instruction.”
A. Admission of the Defendant’s Redacted Post-Arrest
Statement
Alvarado-Santiago first contends that the district court
abused its discretion and made a “rule of completeness” error
under Federal Rule of Evidence 106 by not allowing him to
present his full post-arrest interview with law enforcement to
the jury after the government had already introduced parts of
Nos. 19-2526 & 19-2937 17
that interview. We review the district court’s evidentiary de-
cisions for an abuse of discretion. United States v. Washington,
962 F.3d 901, 905 (7th Cir. 2020).
Federal agents interviewed Alvarado-Santiago after his
arrest on June 25, 2018. During the interview, Alvarado-San-
tiago claimed that he knew that the money brought to him by
Ochoa-Beltran and Salgado was likely “bad” and related to
drugs. In explaining how he knew the money was drug
money, he made disparaging comments about Mexicans be-
ing gang members: “The majority of Hispanics like him
[Ochoa-Beltran] are working drugs. … They’re from gangs.”
He told officers that he knew it was bad money because the
individuals who came in to wire the money wore lots of gold
jewelry and earrings. Alvarado-Santiago also commented on
the quantity of money that Ochoa-Beltran and Salgado wired
from this store. The government redacted these disparaging
remarks, as well as some sections of the transcript that in-
cluded denials of Alvarado-Santiago’s knowledge, played the
recording of the interview for the jury, and provided the jury
with a corresponding redacted transcript.
By way of background, the redactions of Alvarado-Santi-
ago’s statement proved to be a moving target for the district
court. Initially, the parties agreed to the redactions at a pre-
trial conference for the purpose of avoiding any discussion of
the Defendants’ national origins and further avoiding a Sixth
Amendment Bruton problem for co-defendant Ochoa-Beltran,
who pled guilty just before trial. Alvarado-Santiago did not
object to the admission of the redacted interview, and he did
not object to the government’s redactions either before or dur-
ing the admission of his statement before the jury. Counsel
ultimately raised the Rule 106 challenge after the video had
18 Nos. 19-2526 & 19-2937
been played, the testifying witness had been cross-examined
and dismissed, and all parties had taken a break. The district
court considered the objection and instructed defense counsel
to return with a proposal on what additional portions of the
statement he sought to admit and how, logistically, those por-
tions would be admitted since the court had dismissed the
testifying witness who introduced the statement. See United
States v. Vargas, 689 F.3d 867, 876 (7th Cir. 2012) (“[A] party
cannot use the doctrine of completeness to circumvent Rule
803's exclusion of hearsay testimony.”) (abrogated on other
grounds).
Over the next couple of days, the district court generously
provided defense counsel with several opportunities to make
his proposal on how to “complete” the video. Ultimately,
counsel was unable to point to specific portions of the tran-
script that were necessary to complete the portions played by
the government. Instead, counsel sought to introduce the en-
tirety of the interview. The district court declined this request.
See id. (finding the district court did not err in denying de-
fendant’s request to admit his post-arrest statements under
the rule of completeness).
Given the overwhelming evidence against Alvarado-San-
tiago, we need not determine whether the district court
abused its discretion in denying his request to play his full
interview for the jury, because any alleged error by the district
court was harmless. “Errors in the admission of evidence will
be deemed to be harmless unless they had a substantial and
injurious effect or influence on the jury's verdict.” United
States v. Reese, 666 F.3d 1007, 1017 (7th Cir. 2012) (quoting
Datamatic Servs., Inc. v. United States, 909 F.2d 1029, 1033 (7th
Cir. 1990)).
Nos. 19-2526 & 19-2937 19
Here, the government introduced overwhelming evidence
of Alvarado-Santiago’s money laundering activities. The gov-
ernment’s cooperating witness, Salgado, testified that he
would drop off $10,000 with Alvarado-Santiago weekly and
provided $400 to him as payment for transferring the dirty
money without referring the transactions to higher-ups at In-
terCambio Express. Salgado also kept a ledger that reflected
various entries of cash drop offs to “kartero.” Receipts found
at the stash houses reflected dozens of transactions, totaling
more than $200,000, that were processed through the Inter-
Cambio Express at Alvarado-Santiago’s grocery store. Text
messages also revealed Alvarado-Santiago’s communications
with members of the DTO about recipient names and ad-
dresses that were “blocked” and would require additional
identification. An officer testified to conducting surveillance
of the grocery store, taking pictures of the individuals who
entered and left the store, and getting a positive identification
of Alvarado-Santiago as the “kartero.” Additionally, Salgado
positively identified Alvarado-Santiago as “kartero.” Taken
together, the cumulative weight of this evidence overwhelm-
ingly proved Alvarado-Santiago’s guilt. See Reese, 666 F.3d at
1018. Accordingly, any Rule 106 error by the district court was
harmless.
B. Guzman-Cordoba’s Statements
Alvarado-Santiago also challenges the admission of an
out-of-court statement by Guzman-Cordoba in which she
identified him as “kartero.” During its rebuttal case, the gov-
ernment called an agent who testified to his post-arrest inter-
view of Guzman-Cordoba. The agent testified that Guzman-
Cordoba recognized Alvarado-Santiago and identified him as
“kartero,” during this interview.
20 Nos. 19-2526 & 19-2937
Alvarado-Santiago’s counsel objected to the introduction
of her statement on hearsay grounds, but with agreement
from the government and Guzman-Cordoba’s counsel, the
district court “overrule[d] the objection and allow[ed] this tes-
timony as a … statement of a party opponent [under Federal
Rule of Evidence 801(d)].”
The government introduced Guzman-Cordoba’s post-ar-
rest interview after she contradicted her prior statements on
cross-examination. When asked whether she remembered
identifying Alvarado-Santiago as “kartero,” she said she did
not remember. She further testified that she thought she went
once to the grocer to deliver money. She said she did not re-
member telling the officers otherwise. Guzman-Cordoba also
testified that she did not remember Alvarado-Santiago
providing her with receipts for the transactions; that she did
not remember that he was given a cell phone; and that she did
not remember “telling law enforcement that a cell phone was
provided to the defendant so that he could send pictures of
the receipts to Gio [Ochoa-Beltran].” Finally, the prosecutor
asked, “Do you remember speaking with law enforcement
about the [defendant]?” When Guzman-Cordoba answered
“No,” the prosecutor followed up with, “You forgot that
whole conversation?” and Guzman-Cordoba responded, “I
guess so.” As a result, the district court allowed the govern-
ment to introduce her prior statements to law enforcement,
which, among other things, identified Alvarado-Santiago as
“kartero.”
On appeal, Alvarado-Santiago contends that the district
court erred by admitting Guzman-Cordoba’s statements
about him, and that even if the statements were admissible
against Guzman-Cordoba, they were not admissible against
Nos. 19-2526 & 19-2937 21
him. He argues that the district court erred in failing to give a
limiting instruction at the time Guzman-Cordoba’s state-
ments were introduced and that this error was exacerbated by
the prosecutor’s suggestion during closing that the jury could
rely on Guzman-Cordoba’s statements about Alvarado-Santi-
ago. The prosecutor asked the jury: “[D]o you have to rely on
just Cesar [Salgado’s] statement? No. Do you have to rely on
just Cesar's statement and Defendant Guzman-Cordoba's
statements? Because, remember, she, too, identified Defend-
ant Alvarado-Santiago as Kartero when she was speaking
with Special Agent Holbrook.”
First, the district court did not abuse its discretion when it
admitted Guzman-Cordoba’s testimony against her. Guz-
man-Cordoba’s statements are non-hearsay under Rule
801(d)(2)(A), 4 because her own statements were offered by
the government, against her. See United States v. Falls, 960 F.3d
442, 445 (7th Cir. 2020) (prior statements by the defendant to
an interviewing officer were non-hearsay under Rule
801(d)(2)(A)). 5
Second, given the admitted evidence, the district court
properly instructed the jury that it could “not consider the
statement of one defendant as evidence against the other de-
fendant.” The court further instructed the jury that prior in-
consistent statements by either defendant were “only to help
4 Rule 801(d)(2)(A) excludes from the definition of hearsay any statements
that are “offered against an opposing party and [were] made by the party
in an individual or representative capacity.”
5 Moreover, Guzman-Cordoba testified, so there was no violation under
Bruton v. United States, 391 U.S. 123 (1968), nor does Defendant claim such
a violation.
22 Nos. 19-2526 & 19-2937
[the jury] decide how believable the witness’s testimony was
here in court.” Alvarado-Santiago agreed to these instructions
and did not propose any additional or more specific limiting
instructions regarding this evidence. These instructions
properly mitigated any risk that the jury would improperly
use Guzman-Cordoba’s statements against Alvarado-Santi-
ago. “[J]urors are presumed to follow limiting and curative
instructions unless the matter improperly before them is so
powerfully incriminating that they cannot reasonably be ex-
pected to put it out of their minds.” United States v. Garvey,
693 F.3d 722, 726 (7th Cir. 2012) (quoting United States v. Smith,
308 F.3d 726, 739 (7th Cir. 2002)). Nothing in Guzman-Cor-
doba’s statement was “so powerfully incriminating” with re-
spect to Alvarado-Santiago that the jury could not reasonably
be expected to set those statements aside.
We agree, however, that the prosecutor’s invitation to the
jury to use Guzman-Cordoba’s statements against Alvarado-
Santiago was not appropriate. “We employ a two-part test for
assessing the propriety of remarks made during closing argu-
ment: first, we determine whether the comments, examined
in isolation, were improper.” United States v. Durham, 211 F.3d
437, 440 (7th Cir. 2000). Second, we “review the statements
alongside the entire record and ask whether the statements
deprived [the defendant] of a fair trial.” United States v.
Briseno, 843 F.3d 264, 269 (7th Cir. 2016).
Because Alvarado-Santiago failed to object to the prosecu-
tor’s comments at trial, we review the district court’s allow-
ance of the prosecutor’s statement for plain error. Id.; Durham,
211 F.3d at 442. Accordingly, Alvarado-Santiago “must also
show that the outcome of the proceedings would have been
different had the statements not been made.” Briseno, 843 F.3d
Nos. 19-2526 & 19-2937 23
at 269. We will not grant a new trial on plain error review “un-
less there was an error so egregious that the district judge
should have stepped in even though no objection was made.”
Id. (quoting United States v. Alexander, 741 F.3d 866, 870 (7th
Cir. 2014)).
Here, the prosecutor’s reference did not deprive Al-
varado-Santiago of a fair trial nor would the outcome of the
trial have been different had the prosecutor not made the
comment. The comment itself was relatively short and not
egregious. Indeed, after rhetorically asking the jury whether
they had to rely on Salgado’s or Guzman-Cordoba’s identifi-
cation of Alvarado-Santiago as “kartero,” the prosecutor told
the jury that they did not need to rely on that identification,
because “[y]ou can trace the physical evidence and the elec-
tronic evidence in this case, and they show you, they prove,
that the defendant is Kartero.” In addition, Alvarado-Santi-
ago took the stand in his own defense and thus had an oppor-
tunity to rebut the implication that he was “kartero.” Moreo-
ver, the district court properly instructed the jury that the law-
yers’ arguments were not evidence and that the statements of
either defendant could not be used against the other defend-
ant. See United States v. Cornett, 232 F.3d 570, 576 (7th Cir.
2000) (“[W]e focus on the jury instructions and the weight of
the evidence when assessing the prejudicial nature of a pros-
ecutor’s improper comments.”); see also Briseno, 843 F.3d at
270. Finally, as the prosecutor argued, the other evidence
against Alvarado-Santiago was overwhelming. The prosecu-
tor’s comments “were not critical to the outcome of the case,”
Cornett, 232 F.3d at 576, and there is no risk that the “outcome
of the proceedings would have been different had the state-
ments not been made,” Briseno, 843 F.3d at 269.
24 Nos. 19-2526 & 19-2937
C. Ostrich Instruction
Third and finally, Alvarado-Santiago argues that the dis-
trict court abused its discretion by giving the “ostrich instruc-
tion” for deliberate avoidance of knowledge to the jury, over
his objection. 6
We “ordinarily review a district court’s decision whether
or not to give a particular instruction for an abuse of discre-
tion but evaluate de novo whether an instruction was appro-
priate as a matter of law.” United States v. Tanner, 628 F.3d 890,
904 (7th Cir. 2010) (citing United States v. Wilson, 134 F.3d 855,
868 (7th Cir. 1998). “An ostrich instruction should not be
given unless there is evidence that the defendant engaged in
behavior that could reasonably be interpreted as having been
intended to shield him from confirmation of his suspicion that
he was involved in criminal activity.” United States v. Macias,
786 F.3d 1060, 1062 (7th Cir. 2015).
Alvarado-Santiago argues that he was like the defendant
in Macias, who we suggested may have been a “total dupe”
but not necessarily a co-conspirator. Id. at 1061. There, the
6 The district court gave the following instruction:
˜žȱ–Š¢ȱꗍȱ‘ŠȱŽŽ—Š—ȱ•ŸŠ›Š˜-Santiago acted knowingly
’ȱ ¢˜žȱ ꗍȱ ‹Ž¢˜—ȱ Šȱ ›ŽŠœ˜—Š‹•Žȱ ˜ž‹ȱ ‘Šȱ ‘Žȱ ‹Ž•’ŽŸŽȱ ’ȱ Šœȱ
highly probable that the money involved in the wire transfers rep-
resented proceeds of some form of unlawful activity or that the
wire transfers were designed in whole or in part to conceal or dis-
guise the nature, location, source, ownership, or control of the
proceeds of the distribution of controlled substances, and that he
took deliberate action to avoid learning those facts. You may not
ꗍȱ ‘Šȱ ‘Žȱ ŽŽ—Š—ȱ ŠŒŽȱ ”—˜ ’—•¢ȱ ’ȱ ‘Žȱ Šœȱ –Ž›Ž•¢ȱ –’œȬ
taken or careless in not discovering the truth, or if he failed to
–Š”ŽȱŠ—ȱŽě˜›ȱ˜ȱ’œŒ˜ŸŽ›ȱ‘Žȱ›ž‘ǯ
Nos. 19-2526 & 19-2937 25
defendant was an experienced human smuggler who had as-
sisted undocumented persons in crossing the US-Mexican
border. He was then asked to assist in transporting funds
across the border. He claimed to believe that the funds were
related to human smuggling, not drug smuggling. We held
that the district court improperly gave the ostrich instruction
under these circumstances, because the defendant had not
taken “deliberate actions” to avoid discovering the true na-
ture of the endeavor. Id. at 1062. The defendant had “failed to
display curiosity, but he did nothing to prevent the truth from
being communicated to him. He did not act to avoid learning
the truth.” Id at 1063. (emphasis in the original).
Here, the government presented ample evidence showing
that Alvarado-Santiago had acted to avoid knowledge of the
source of the large sums the DTO asked him to transfer out of
the country. The Global Compliance Director of InterCambio
Express testified, for example, about the company’s policies
regarding requiring identification for transactions exceeding
$1,500 and increasing levels of scrutiny for increasingly larger
transactions. The government also introduced the posted pol-
icies regarding required identification and the escalating lev-
els of review for wire transfers. 7 Despite these policies, the
7 The government’s Exhibits 592 and 593 explain InterCambio Express’s
requirements for varying transfer amounts, in both English and Spanish.
The Global Compliance Director testified that the document is intended to
“[h]elp an [InterCambio Express] agent comply with the requirements of
InterCambio.” The document explains: For all transfers, only basic infor-
mation is required, meaning complete names, addresses, and phone num-
bers from the sender and recipient. For transfers between $1,500 and
$2,499, the agent must request identification from the sender. For transfers
between $2,500 and $2,999 the agent must fax a copy of the identification
provided, as well as a signed receipt, to InterCambio Express’ central
26 Nos. 19-2526 & 19-2937
evidence showed many days on which members of the DTO
deposited over $10,000 with Alvarado-Santiago, who split
those deposits into several transactions to avoid InterCam-
bio’s scrutiny. On April 16, 2017, for example, Alvarado-San-
tiago’s grocery store executed fifteen separate transactions for
the DTO, each between $729 and $980, well below the $1,500
trigger, which would have required Alvarado-Santiago to fax
a copy of the sender’s state-issued identification to InterCam-
bio’s central office. In addition, text messages indicated that
Alvarado-Santiago would ask for new recipient names and
addresses when any of the recipient names and addresses
were “blocked [by InterCambio Express] and require[d] iden-
tification.” And Alvarado-Santiago did not record the actual
names of the senders of these transfers and instead used un-
related, third party names.
Based on this evidence, the jury could have concluded that
Alvarado-Santiago did in fact receive the $10,000 deposits
from the co-conspirators, and that he divided those sums into
smaller wire transfers to avoid detection by InterCambio and
to avoid finding out with certainty that he was handling drug
money. This evidence distinguishes this case from Macias be-
cause the government presented evidence that Alvarado-San-
tiago acted to avoid discovering the truth by dividing up the
larger sums of money into smaller wire transfers. Moreover,
office. For transfers between $3,000 and $4,999, the agent must fax a copy
of the sender’s social security card, identification, and signed receipt to the
central office. For transfers between $5,000 and $9,999, the agent must fax
a copy of a recent pay stub for the sender, their social security card, iden-
tification, and signed receipt to the central office. Finally, transfers over
$10,000 incur all of the foregoing requirements, and the agent must first
call the central office for authorization.
Nos. 19-2526 & 19-2937 27
whereas Macias failed to ask questions where he had no obli-
gation to do so, Alvarado-Santiago had an obligation under
InterCambio Express’s policies to ask more questions about
the transactions than he did. Accordingly, the district court
did not err in giving the requested ostrich instruction to the
jury.
V. Conclusion
For the foregoing reasons, we AFFIRM Guzman-Cor-
doba’s and Alvarado-Santiago’s convictions.