United States v. Santiago, 2011 U.S. App. LEXIS 14150

Santiago was convicted by jury of conspiracy to possess with intent to distribute and to distribute cocaine base, and distribution of cocaine base, under 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2, with a 240-month mandatory minimum for 50+ grams of cocaine base, to run concurrently.
The government introduced audio/video evidence from a 2002 drug deal involving Felipe Padilla and a known gang connection to the Spanish Cobras; Santiago’s nickname was Sabu.
The drug evidence from the 2002 transaction was later destroyed, and the government sought to admit gang and affiliation evidence to explain Padilla’s statements and identify Santiago as the driver.
Santiago moved in limine to exclude gang evidence under Rule 403; the district court denied the motion.
During trial, the government referenced the Spanish Cobra investigation; the jury heard gang references in opening, testimony, and closing, with a limiting instruction given in jury instructions.
The district court denied motions for acquittal and a new trial; Santiago was sentenced to the mandatory minimum 240 months on each count, to be served concurrently.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of gang references under Rule 403	Santiago argues gang evidence is prejudicial and irrelevant.	Santiago contends the district court abused its discretion by admitting gang references.	Abuse of discretion not shown; probative value outweighed prejudice; harmless error.
Sufficiency of evidence that drugs were cocaine base under § 841(b)(1)(A)(iii)	Edwards limits 'cocaine base' to crack cocaine.	DePierre expanded 'cocaine base' to chemically basic form, not just crack.	DePierre controls; drugs were cocaine base, sustaining the § 841(b)(1)(A)(iii) designation.

United States v. Irvin, 87 F.3d 860 (7th Cir. 1996) (gang-evidence prejudice considerations)
United States v. Westbrook, 125 F.3d 996 (7th Cir. 1997) (careful consideration of admission of gang evidence)
United States v. Montgomery, 390 F.3d 1013 (7th Cir. 2004) (gang evidence to establish motive)
United States v. King, 627 F.3d 641 (7th Cir. 2010) (gang-related evidence to show joint venture)
Clark v. O'Leary, 852 F.2d 999 (7th Cir. 1988) (gang membership admissible for impeachment to show bias)
United States ex rel. Garcia v. Lane, 698 F.2d 900 (7th Cir. 1983) (gang-affiliation admissible to explain inconsistent statement)
United States v. Rivera, 273 F.3d 751 (7th Cir. 2001) (conspiracy proof and joint venture considerations)
United States v. Suggs, 374 F.3d 508 (7th Cir. 2004) (factors for conspiracy existence)
Jung v. United States, 473 F.3d 837 (7th Cir. 2007) (harmless error when guilt is overwhelming)
United States v. Edwards, 397 F.3d 570 (7th Cir. 2005) (definition of cocaine base prior to DePierre)
DePierre v. United States, 131 S. Ct. 2225 (2011) (cocaine base means chemically basic form, not only crack)