United States v. Godinez

• Decision Date: 04 August 2021
• Docket Number: No. 19-3425,19-3425
• Citation: 7 F.4th 628
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernesto GODINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

7 F.4th 628

UNITED STATES of America, Plaintiff-Appellee,

v.Ernesto GODINEZ, Defendant-Appellant.

No. 19-3425

United States Court of Appeals, Seventh Circuit.

Submitted January 20, 2021

Decided August 4, 2021

Rehearing and Rehearing En Banc Denied October 5, 2021

Kavitha J. Babu, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Gal Pissetzky, Attorney, Chicago, IL, for Defendant-Appellant.

Before Easterbrook, Wood, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

Law enforcement officers entered a southwest Chicago neighborhood one night to replace tracking devices on the cars of several Latin Saints gang members. Shortly after the officers arrived, they came under gunfire and a federal agent was shot and seriously injured.

A federal grand jury indicted Ernesto Godinez, a member of the gang, for the shooting. In the government's view, Godinez, tasked with guarding the neighborhood, mistook federal agents from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") for rival gang members and shot Special Agent Kevin Crump. After a six-day trial, a jury found Godinez guilty.

Godinez now appeals, arguing that the district court wrongly admitted certain evidence and that the jury did not receive sufficient evidence to convict him of shooting Crump. We conclude that the district court properly admitted ballistics evidence concerning the shots fired, although evidence from and testimony about a gunshot detection system—ShotSpotter—should have been handled differently. Because a rational jury, even without the improperly admitted evidence, could have found beyond a reasonable doubt that Godinez shot Crump, we affirm.

I

Given the jury's verdict, we view the trial evidence in the light most favorable to the government. United States v. Wallace , 991 F.3d 810, 812 (7th Cir. 2021).¹ A portion of the government's case consisted of video evidence compiled and synchronized from various police and private surveillance cameras. Some videos have multiple panes, allowing the viewer to track the movement of individuals or cars. The ATF's technical specialist also inserted circles around cars or persons of interest for the compiled videos. At trial, the defense used these videos as well, which without dispute depict Godinez. No video showed Godinez shooting a gun, however.

A

On May 4, 2018, ATF agents and Chicago police officers went to the "Back of the Yards" neighborhood² to replace court-approved global positioning system trackers on cars belonging to members of the Latin Saints gang. The neighborhood has a typical municipal grid pattern with streets at right angles. These events took place between the 4300 and 4400 block of parallel north-south streets, South Wood Street and South Hermitage Avenue. An alley runs between and parallel to those streets, and various gangways between houses allow east-west access mid-block.

Latin Saints gang member Ernesto Godinez lived in the Back of the Yards. Another gang member, Hector Ruiz, who is also a paid government informant, confirmed that Godinez was in the gang and thus would have been expected to patrol the neighborhood. For the jury, Ruiz outlined the gang's territory and described the expectations of Latin Saints to protect that area from rival gang members by "[p]osting up," "24/7." Ruiz affirmed that meant Godinez had to shoot any rival gang members he spotted while on patrol, testifying that if rival gang members enter the neighborhood, Latin Saints gang members are to "[c]hase them or shoot at them."

At 2:56 a.m. on May 4, video shows Godinez wearing dark clothing leaving the area of his house on South Wood Street. He drove around the neighborhood at a relatively slow speed, as if patrolling, and he arrived home and parked near the intersection of 44th and Wood.

At around 3:15 a.m., ATF agents in street clothes and an unmarked car drove slowly around this same neighborhood to assess how safe it was and to locate the target cars. They parked on the 4400 block of South Hermitage. When this first undercover car passed, video shows Godinez running into his house, leaving shortly after, and then running north. He crossed the alley and then entered a gangway between the houses at 4332 and 4336 South Hermitage Avenue.

At about 3:17 a.m., a second group of agents, using a rental car to avoid detection, drove down Hermitage. These plain clothes agents—Crump, Daniel Winter, and Thomas Spratte—exited the car near the intersection of 44th and Hermitage to approach the target vehicles on foot. They wore sweatshirts with hoods up.

At 3:18 a.m., those same agents began to cross the street and heard five gunshots. Winter and Spratte both recalled that the shots came from the northwest. Spratte sought cover behind a parked car and looked over his shoulder. He testified that he saw the shots come from about halfway up the 4300 block of South Hermitage Avenue on the west side of the sidewalk. Spratte saw two muzzle flashes, immediately fired his gun twice toward those flashes, and yelled, "shots fired."

When Winter asked Spratte where the shots came from, Spratte pointed to the location of the two muzzle flashes. Spratte did observe an individual with a white t-shirt on Hermitage, although he does not recall exactly when. But Spratte did not see the person next to the muzzle flashes, and Spratte did not fire his gun at that person.

As the agents started to head north towards the shots, they realized that Crump had been hit and was on the ground bleeding. The bullet entered Crump's neck just below his left ear, exiting his face through the bridge of his nose between his eyes. Since being shot, Crump has undergone two surgeries, and the wound affects his vision. Crump did not see who shot him or where the shots came from.

At 3:18:26 a.m., immediately after the shooting, video shows Godinez running across the alley and heading toward his house. Godinez moves with his right hand at his side, but the video does not reveal whether he is holding something.

Before the shooting, Godinez had been exchanging messages via Snapchat with his then-girlfriend, Valerie Jean-Baptiste, who lived in the neighborhood. Godinez told Jean-Baptiste to pick him up by 44th and Wood. Before she left her house, Jean-Baptiste heard the shooting outside her open windows. Then she quickly sent a message to Godinez asking his location. He responded, "[b]y his house," so Jean-Baptiste drove her car there. Video showed her arriving in a sedan and picking Godinez up within five minutes of the shooting. Godinez entered her car wearing dark clothing and a baseball cap that was later found in the car and containing his DNA. Jean-Baptiste testified that Godinez told her: "I feel good. F*** that flake." Jean-Baptiste confirmed that Godinez was the person in the videos.

Together, Jean-Baptiste and Godinez drove to a nearby gas station. On the way, they downloaded a cellphone application for a police scanner to monitor law enforcement activity in the neighborhood. They next drove to a second gas station where Godinez bought a white t-shirt that he put on over his black shirt.

Later that morning, Godinez went to his cousin's house and dropped off the car he had driven earlier that day to patrol the neighborhood. In the evening, Godinez returned to that house with his son and son's mother, Destiny Rodriguez. She showed Godinez a purported "wanted" picture with his face on it and started to cry. Hugging Rodriguez and their son, Godinez said he loved Rodriguez and that he was sorry for everything he ever did that hurt her. At that house, Godinez also stopped using one of his cellphones, which he left there.

The same day of the shooting, Chicago police went to the Back of the Yards neighborhood to investigate. At trial, Forensic Investigator Paul Presnell testified about his work at the scene, which included videotaping, photographing, drawing a plat map, and searching for and marking evidence. Presnell described the ballistics evidence recovered at the scene. Five casings were found in a gangway between 4332 and 4336 South Hermitage Avenue. Those casings were clean and shiny, not weathered. Presnell came upon four of these casings after other officers had placed yellow crime scene markers noting their location. He photographed and collected those four casings, and after he left the gangway to search further, he found a fifth casing nearby under a leaf. Presnell also found a bullet lodged in the north side of a tree in front of 4343 South Hermitage Avenue and a bullet in the grass between the street and the sidewalk in front of 4416 South Hermitage Avenue.

The jury heard expert testimony from ATF Firearms Examiner Arnold Esposito as well. He testified that the five casings recovered from the gangway were fired from the same 9mm caliber firearm; that the bullet from the tree and the bullet found in the grass were both fired from the same gun; and that most of the possible firearms from which the bullets could have been fired were 9mm caliber.

The government also presented evidence from ShotSpotter, an acoustic gunshot detection and location system. The district court qualified ShotSpotter employee Paul Greene as an expert witness. Greene described ShotSpotter as a series of sensors installed in a geographic area that listen specifically for the sound of gunfire. When shots are detected, the time and certain measurements are sent to a central location where software classifies the sound as gunfire or not. If it is gunfire, ShotSpotter calculates the point of latitude and longitude where the gun was fired. That information is then reported to law enforcement.

Greene testified about his analysis of the May 4 audio clips from the sensors near 44th and Hermitage. Initially, ShotSpotter identified two gunshots as having been fired near the southeast corner of 44th and Hermitage between 3:18:14 a.m. and 3:18:15 a.m. Greene testified that ShotSpotter typically has an accuracy of 10 to 12 feet. An hour or so later, Chicago police...