U.S. v. Santiago

• Decision Date: 11 July 2011
• Docket Number: No. 10–1705.,10–1705.
• Citation: 643 F.3d 1007
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Adalberto SANTIAGO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

643 F.3d 1007

UNITED STATES of America, Plaintiff–Appellee,

v.Adalberto SANTIAGO, Defendant–Appellant.

No. 10–1705.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2011.Decided July 11, 2011.

Peter Salib (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Erin E. Murphy (argued), Attorney, Bancroft PLLC, Washington, DC, for Defendant–Appellant.Before FLAUM, EVANS and TINDER, Circuit Judges.FLAUM, Circuit Judge.

A jury convicted Adalberto Santiago of conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2, and of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On each count, the district court sentenced Santiago to the 240–month mandatory minimum for offenses involving 50 grams or more of a mixture containing cocaine base. See 21 U.S.C. § 841(b)(1)(A)(iii). The court ordered that the sentences run concurrently. Santiago appeals his conviction on two grounds: that the district court erroneously admitted gang affiliation evidence under Federal Rule of Evidence 403, and that the government presented insufficient evidence to establish that the substance at issue was “cocaine base” for purposes of § 841(b)(1). For the following reasons, we affirm.

I. Background

In 2002, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and the Cook County Sheriff's department were in the midst of a three-year joint investigation into the Spanish Cobra street gang in Chicago. ATF case agent David Gomez coordinated that investigation, which targeted a number of Spanish Cobra members, including Felipe Padilla.

In September of 2002, Agent Gomez directed a confidential informant known as “Suave,” a former Spanish Cobra himself, to arrange a drug deal with Padilla. During that transaction, which occurred on September 26, 2002, Agent Gomez posed as a suburban drug dealer named “Loquito.” The original plan, as negotiated by Suave and Padilla, was for Agent Gomez and Suave to purchase four and a half ounces of crack cocaine from Padilla at Padilla's home. But, on the day of the deal, Padilla changed the location to a K–Mart parking lot, explaining that “Sabu” had the drugs there.

It is undisputed that Santiago's nickname is Sabu. At Santiago's trial, Agent Gomez testified that, as part of the Spanish Cobra investigation, he had learned the identities of various Spanish Cobras by viewing photos of them and learning their nicknames. Therefore, when Padilla mentioned Sabu, Agent Gomez understood him to be referring to Santiago.

Agent Gomez and Suave drove to the K–Mart in Agent Gomez's vehicle, which was equipped with a camera and microphones. Numerous audio and video recordings from those devices were admitted at Santiago's trial. Padilla met Agent Gomez and Suave in the parking lot in his own vehicle, and told them that Sabu would be driving a green van. About an hour later, Agent Gomez observed a green van drive into the parking lot. He testified that, despite the fact that the van parked several car lengths away, he recognized the driver as Santiago.

Padilla got out of his vehicle and went to the window of the green van to speak with the driver. Padilla then walked over to Agent Gomez's vehicle, and spoke with Agent Gomez and Suave. That conversation was recorded by the microphones in Agent Gomez's vehicle, and a recording of it was played at trial. During the conversation, Padilla told Agent Gomez and Suave that they needed either to accompany Sabu to another location to get the drugs, or to give Sabu the money up front and he would go get the drugs. When Agent Gomez rejected those options, Padilla said “ya know he ain't gonna burn me man, right? That's Cobra folk. How the fuck you gonna burn Cobra folk?” At the trial, Agent Gomez explained that he understood Padilla to be saying that members of the Spanish Cobras would not rip each other off, and therefore they could trust Sabu. Despite that reassurance, Agent Gomez refused. Eventually, the green van left to get the drugs. The van returned about 15 minutes later, and again, according to his testimony, Agent Gomez was able to identify the driver as Santiago.

Padilla went over to the green van and exchanged $2,750 in cash for the drugs. Agent Gomez, Suave, and Sabu remained in their respective vehicles. Therefore, no images or recordings of Sabu were captured by the devices in Agent Gomez's vehicle. When Padilla returned to Agent Gomez's vehicle, he handed a package to Suave and said that the drugs were “cooked, fresh off the lamb.” Agent Gomez testified that he understood Padilla to be saying that the substance was crack cocaine.

Agent Gomez and Suave then drove away. At that point, Suave said that the green van was a Chevrolet Express, and Agent Gomez agreed. Suave also said he had observed the van's license plate number. Agents later obtained certified vehicle records indicating that that license plate belonged to a blue 1996 GMC Savana, which was registered to Santiago and his girlfriend, Mayra Hernandez. Agent Gomez testified that the 1996 GMC Savana and the 1996 Chevrolet Express have very similar body types.

About two years later, on September 2, 2004, Santiago was charged in a two-count indictment for his alleged involvement in the September 26, 2002 transaction. Count One charged Santiago with conspiracy to possess with intent to distribute and to distribute 121.3 grams of mixtures containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Count Two charged him with distribution of 121.3 grams of mixtures containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). On October 27, 2004, Santiago was charged in a superseding indictment, which added Padilla to each count.

In May 2006, the government discovered that the drugs from the September 26, 2002 transaction had been destroyed. Santiago filed a motion to dismiss the indictment based on the unavailability of the drug evidence, which the district court denied. On January 8, 2007, Santiago filed a motion in limine to bar the introduction of evidence concerning his gang affiliation, arguing that such evidence was not relevant under Federal Rule of Evidence 402, and was unduly prejudicial under Rule 403. The district court denied that motion as well.

Santiago's four-day jury trial began on January 22, 2007. During its opening statement, the government twice referenced the ATF's investigation of the Spanish Cobra gang. The government called Agent Gomez as its first witness. As described above, Agent Gomez made several references to the Spanish Cobras during his testimony. Those comments related to the Spanish Cobra investigation generally, his ability to identify Santiago as the driver of the green van, and Padilla's statement about “Cobra folk.” Two of the government's remaining three witnesses—Investigator Jose Rosario and Sergeant Marlon Parks, both of the Cook County Sheriff's Office—mentioned the Spanish Cobras once, each to explain that he was involved in the joint investigation in 2002.

The government's final witness was former Cook County Sheriff's Police Department chemist Nicole Wenzel, who had analyzed the drug evidence recovered on September 26, 2002, before it was destroyed. She testified that she performed two chemical tests that indicated that the narcotics were cocaine base.

At trial, phone records from Padilla's cell phone were admitted into evidence. Those records showed a number of calls between Padilla's phone and a cell phone registered to Santiago's girlfriend, which occurred on September 26, 2002, and the few days prior to that date. The records showed that Padilla called the girlfriend's cell phone shortly after he spoke with Suave to arrange the September 26th deal. They also showed nine calls between the two phones during the transaction on the 26th. Agent Gomez testified that he observed Padilla make numerous calls on the date of the transaction, which he understood at the time to be to Sabu.

During its closing argument, the government told the jury, “do not convict, let me repeat that, do not convict Adalberto Santiago because he is a member of the Spanish Cobras.” The prosecutor went on to say that jurors could use the gang evidence “to understand the relationship between Santiago, Padilla and the CI,” in considering Padilla's reference to “Cobra folk,” and to “assess Special Agent Gomez's ability to identify Sabu.” In the rebuttal portion of its closing, the government made additional references to gangs, referring to Padilla and Santiago as “gang members” on two occasions, and referencing the gang twice in relation to the larger joint investigation.

The district court included a limiting instruction regarding the use of the gang evidence in the jury instructions. The instruction read: “During the trial, references were made to gangs or gang membership. Such evidence does not mean that the defendant committed the offenses charged in this case.” The government and Santiago agreed to that instruction. The jury returned a verdict of guilty on both counts, as well as a special verdict finding that the narcotics in the case were 50 grams or more of mixtures containing cocaine base in the form of “crack” cocaine.

Santiago filed a motion for acquittal based on insufficient evidence and a motion for a new trial based on the admission of gang evidence. The district court denied each motion. On March 11, 2010, the district court sentenced Santiago to the mandatory minimum sentence of 240 months' imprisonment on each count to run concurrently.

II. Discussion

A. Admission of Gang References

Santiago's primary argument on appeal is that the district court erred in admitting evidence concerning the Spanish Cobras and his membership in that gang. According to Santiago, admission of the gang evidence was improper under Federal Rule of Evidence 403 because its minimal probative value was...