United States v. Elizondo

• Decision Date: 21 December 2021
• Docket Number: Nos. 20-2167 & 20-2366,s. 20-2167 & 20-2366
• Citation: 21 F.4th 453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Xavier ELIZONDO & David Salgado, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

21 F.4th 453

UNITED STATES of America, Plaintiff-Appellee,

v.Xavier ELIZONDO & David Salgado, Defendants-Appellants.

Nos. 20-2167 & 20-2366

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2021

Decided December 21, 2021

Sean Joseph Byrnes Franzblau, Ankur Srivastava, Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael J. Petro, Attorney, Michael J. Petro, Chicago, IL, for Defendant-Appellant David Salgado.

Patrick W. Blegen, Jodi Garvey, Attorneys, Blegen & Garvey, Chicago, IL, Sarah Kelsey Hipp, Attorney, Kopecky, Schumacher, Rosenburg, LLC, Chicago, IL, for Defendant-Appellant Xavier Elizondo.

Before Sykes, Chief Judge, and Flaum and Brennan, Circuit Judges.

Brennan, Circuit Judge

Chicago Police Officers Xavier Elizondo and David Salgado used their positions to embezzle drugs and cash, some of which they distributed to informants. As part of their scheme, they encouraged informants to present false information to state judges to obtain search warrants, which in turn yielded more drugs and cash. The FBI caught on and initiated sting operations. The first sting failed because officers discovered security cameras the FBI had set up at a vacant apartment, leading the defendants to inventory the full amount of money they recovered there. After seeking and obtaining court authorization to wiretap Elizondo's phone, the FBI conducted another sting operation. In the second sting agents recorded Elizondo and Salgado stealing cash they recovered from an FBI-controlled rental vehicle. Salgado saw law enforcement towing the rental vehicle the next day, and he told Elizondo, who in turn instructed Salgado to "relocate" items from Salgado's home.

A grand jury indicted Elizondo and Salgado on conspiracy and theft charges related to their scheme. Elizondo was also charged with obstruction of justice for instructing Salgado to destroy or conceal evidence. They went to trial and a jury found them guilty on all counts. Elizondo and Salgado appeal: (1) the use of the evidence obtained from the government's wiretap application; (2) the district court's Batson inquiry during jury selection; (3) the sufficiency of evidence on the obstruction charge; and (4) the district court's calculation of the intended loss under the Sentencing Guidelines.

We find no reversible error. The wiretap application was not an improper subterfuge search because the government was forthright about the scope of its investigation. Likewise, we can trace the logic of the district court's Batson inquiry, and that court followed the applicable steps. The evidence presented at trial on the obstruction charge was sufficient for the jury to infer that Elizondo acted with the intent to prevent the use of evidence in an official proceeding. Finally, there was no clear error in the district court's loss calculation at sentencing. We therefore affirm Elizondo and Salgado's convictions and sentences.

I.

A. Factual Background

The criminal scheme. Elizondo and Salgado were Chicago Police Department ("CPD") officers assigned to the 10th district team that worked gang and narcotics investigations for an area of the city's west side. Elizondo was the team's sergeant, which afforded him supervisory responsibilities. Officers embedded with gang teams proactively investigate crimes and develop relationships with confidential informants, wearing civilian clothes to blend in with their surroundings. They also investigate, prepare, and obtain search warrants based on the informants' anonymous tips.

Between mid-2017 and January 2018, Elizondo and Salgado used their positions as gang-team officers to steal cash and drugs from search locations. They distributed portions of the proceeds to informants. The two officers also encouraged informants to supply false information to state judges to obtain search warrants, which they then executed, stealing portions of the proceeds from those searches.

The investigation's origins. In late 2017, after receiving information about alleged corrupt activity, the FBI began investigating Elizondo and Salgado's CPD unit. Jeffrey Owens, who went by the nickname "Cuba," had been working with the FBI as a confidential source on other investigations. Cuba served as the FBI's confidential informant in this investigation. Antwan Davis—an acquaintance of Cuba's who FBI agents believed had a relationship with corrupt CPD officers—introduced Cuba to Elizondo and Salgado. The FBI recorded conversations between Cuba and Davis, in which Cuba sought to obtain information about the officers.

The Maplewood apartment ruse. At the FBI's direction, Cuba told Elizondo and Salgado about a "drug stash house" where he claimed large quantities of illegal narcotics were kept. But the FBI had set up a sting operation. No drugs were placed at the "stash house,"—an apartment located on Maplewood Avenue. Instead, in December 2017, FBI agents placed $15,000 in cash at the apartment and equipped it with surveillance cameras. Elizondo spoke to Cuba, offering to search the apartment and give Cuba and Davis a portion of the items recovered. Elizondo and Salgado obtained a search warrant by arranging for Davis to provide false information to a state judge.

On December 20, 2017, Elizondo, Salgado, and several other officers raided the Maplewood apartment. Salgado recovered the $15,000 in cash that the FBI had planted. The CPD officers executing the search also discovered the hidden surveillance cameras and disconnected them. So the officers inventoried the $15,000 and did not steal any of it. On December 28, 2017, Elizondo told Cuba that he and his team had inventoried the full amount of cash recovered from the apartment because the cameras had recorded the officers' search. Per Elizondo, "if they didn't find the cameras, it would have been a good Christmas for everybody."

The initial Title III application and order. Next, on January 24, 2018, the government sought court authorization to intercept wire and electronic communications over Elizondo's phone under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The government made its application to the Chief Judge of the United States District Court for the Northern District of Illinois, who has responsibility for such matters in that district. To support its request for a wiretap, the government included the affidavit of FBI Special Agent Marc Recca. In his affidavit, Agent Recca stated that the requested wiretap concerned offenses involving the distribution of narcotics ( 21 U.S.C. § 841 ), conspiracy to distribute narcotics ( 21 U.S.C. § 846 ), and wire fraud ( 18 U.S.C. § 1343 ). Each of those statutes is a predicate under Title III. See 18 U.S.C. § 2516(1)(c), (e).

The affidavit described the scope of the government's investigation to the Chief Judge:

[t]he FBI is investigating allegations that CPD officers ... including ELIZONDO and SALGADO, are engaged in a corrupt scheme to: (1) steal and embezzle evidence—namely, narcotics and money—recovered during searches conducted pursuant to their duties as sworn law enforcement officers; and (2) provide false information to judges in support of search warrants as a means to fraudulently obtain property.

The Chief Judge granted the government's application for a Title III order on January 24, 2018. The government intercepted Elizondo's phone conversations between January 24, 2018, and January 31, 2018.

The rental-vehicle ruse. At the FBI's direction, Cuba told Elizondo on January 28, 2018—four days into the wiretap of Elizondo's phone—that a drug dealer was storing drugs and cash in a vehicle near Midway Airport on Chicago's southwest side. The vehicle was in fact an FBI-controlled rental car in which agents had placed $18,200 in cash. That night, Elizondo and Salgado, along with two other officers, arrived at the vehicle's location and searched the car. Elizondo discovered the cash, which was hidden in the right compartment of the trunk. He showed the cash only to Salgado, not the other officers, and he conferred with Salgado privately. Next, Elizondo directed the other officers to move the rental vehicle to a nearby warehouse parking lot to continue the search, not a usual CPD practice. There, Salgado took the cash from the trunk, and Elizondo placed it in his CPD vehicle. Later that evening, Elizondo called Salgado and told him, "[w]e're good." The officers inventoried only $14,000 of the $18,200 seized from the rental vehicle.

The obstruction of justice. On January 29, 2018, CPD Internal Affairs Lieutenant Timothy Moore—who was detailed as an FBI task force officer—and FBI Special Agent Robert Leary went to CPD's Homan Square facility to recover the inventoried $14,000 and the rental vehicle used in the previous night's operation. Moore and Leary called a tow truck for the car, and Salgado approached them in the parking lot. Moore identified himself as being from the CPD's Internal Affairs Division, and he stated he would be in contact with Salgado.

Now worried, Salgado called Elizondo and told him CPD Internal Affairs had towed the vehicle. Elizondo asked, "you know what to do, right?" Salgado responded, "Yeah." Elizondo said, "Just relocate everything, alright?" Salgado responded, "Huh?" Elizondo replied, "Just relocate everything[,] you know?" Salgado responded in the affirmative. Less than ten minutes later, Salgado called back and Elizondo told him to "just make sure, whatever you have in your house isn't there no more, you know what I mean?" Salgado responded, "Yeah, yeah." He asked Elizondo where to put the items that were in his house, to which Elizondo responded, "I don't know[.]"

Salgado then traveled from Homan Square to his home, where he stayed briefly. Elizondo and Salgado both deleted call records from their cellphones over the next twelve hours, including records of the calls in which Elizondo instructed Salgado to remove items from his home.

Elizondo's subsequent conversations. After speaking with...