United States v. Penaloza
2011 U.S. App. LEXIS 16147
| 7th Cir. | 2011Background
- DEA investigated Jorge Gutierrez; confidential informant helped establish Elias as 'Carlos' to coordinate cocaine deliveries.
- Elias undercover called Gutierrez, later arranged for a shipment and used the Spanish cocaine debacle to justify ongoing investigation.
- In November 2006, Elias contacted Penaloza and later met her in a Sleep Inn parking lot in Bedford Park, Illinois; three duffel bags with sham cocaine were placed in her SUV.
- Penaloza drove toward New Jersey; DEA followed and stopped her in Indiana; she confessed after Miranda warnings that she knew the bags contained drugs.
- A grand jury indicted Penaloza for attempting to possess with intent to distribute over five kilograms of cocaine; the government sought background evidence about Gutierrez and coconspirator statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Gutierrez background evidence | Penaloza claims background is unfairly prejudicial and hearsay. | Penaloza argues Rule 403 prejudice outweighs probative value. | Background evidence admissible; not hearsay and, if prejudicial, harmless. |
| Constructive amendment of indictment | Government broadened bases to include conspiracy with Gutierrez. | Something beyond the charged offense was alleged. | No constructive amendment; proceedings confined to attempted possession. |
| Admission of Brazao's testimony about confession | Brazao lacked foundation for the nonhearsay admission. | Foundation not required; testimony was properly admissible. | Admissible as nonhearsay admission; foundation not required beyond showing content and occurrence. |
Key Cases Cited
- United States v. Mancillas, 580 F.2d 1301 (7th Cir. 1978) (background information may explain why evidence was obtained, not hearsay)
- United States v. Powers, 500 F.3d 500 (6th Cir. 2007) (contextual evidence may be admitted if not offered for truth of matter asserted)
- United States v. Castellini, 392 F.3d 35 (1st Cir. 2004) (contextual background evidence admissible under appropriate limits)
- United States v. Wilson, 107 F.3d 774 (10th Cir. 1997) (background evidence helps explain investigative steps)
- United States v. Collins, 996 F.2d 950 (8th Cir. 1993) (contextual information not hearsay when not offered for truth)
- United States v. Bradshaw, 719 F.2d 907 (7th Cir. 1983) (Rule 403 balancing for potentially prejudicial background)
- United States v. Cooper, 591 F.3d 582 (7th Cir. 2010) (harmful error shown only if could significantly affect the outcome)
- United States v. Haskins, 511 F.3d 688 (7th Cir. 2007) (constructive amendment principle applied to grand jury indictment)
- United States v. Trennell, 290 F.3d 881 (7th Cir. 2002) (plain error review for constructive amendments)
- United States v. Presbitero, 569 F.3d 691 (7th Cir. 2009) (plain error standard foræªpreservation issues)
- United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978) (co-conspirator statements and hearsay framework)