United States v. Ernesto Godinez, 7 F.4th 628

7 F.4th 628

7th Cir.

2021

*1 Before E ASTERBROOK , W OOD , B RENNAN , Circuit Judges . B RENNAN Circuit Judge . Law enforcement officers entered southwest Chicago neighborhood one night replace tracking devices cars several Latin Saints gang mem bers. Shortly officers arrived, they came under gun fire federal agent shot seriously injured.

A federal grand indicted Ernesto Godinez, member gang, shooting. government’s view, *2 Godinez, tasked guarding neighborhood, mistook federal agents from Bureau Alcohol, Tobacco, Fire arms (“ATF”) rival gang members shot Special Agent Kevin Crump. After six day trial, jury found guilty. now appeals, arguing district court

wrongly admitted certain evidence receive sufficient evidence convict him shooting Crump. We conclude district court properly admitted ballis tics evidence concerning shots fired, although evidence from testimony about gunshot detection system— ShotSpotter—should have handled differently. Because rational jury, even without improperly admitted evi dence, have found beyond reasonable doubt shot Crump, we affirm.

Given jury’s verdict, we view trial evidence light most favorable government. United States v. Wallace F.3d (7th Cir. 2021). A portion gov ernment’s case consisted video compiled synchronized various police private surveillance cameras. Some videos multiple panes, allowing viewer track movement individuals or cars. The ATF’s technical specialist inserted circles around cars persons interest compiled videos. At trial, de fense used these videos well, without dispute depict *3 3 ‐ Godinez. No video showed Godinez shooting gun, how ever.

On May 4, 2018, ATF agents Chicago police officers went to “Back Yards” neighborhood to replace court ‐ approved global positioning system trackers on cars longing to members Latin Saints gang. The neighbor hood has typical municipal grid pattern streets right angles. These events took place between block parallel north ‐ south streets, South Wood Street South Hermitage Avenue. An alley runs between parallel those streets, various gangways houses allow east west access mid block.

Latin Saints gang member Ernesto lived Back Yards. Another gang member, Hector Ruiz, who paid government informant, confirmed gang thus would expected patrol neighborhood. For jury, Ruiz outlined gang’s ter ritory described expectations Latin Saints protect area rival gang members “[p]osting up,” “24/7.” Ruiz affirmed meant shoot any rival gang members spotted while on patrol, testifying if rival gang members enter neighborhood, Latin Saints gang members are “[c]hase them shoot them.”

At 2:56 a.m. May video shows wearing dark clothing leaving area house South Wood Street. He drove around neighborhood relatively slow speed, *4 if patrolling, and he arrived home and parked near tersection 44th and Wood.

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

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

At 3:18 a.m., those same agents began cross street heard five gunshots. Winter Spratte both recalled shots came northwest. Spratte sought cover behind parked car looked over his shoulder. He testi fied saw shots come about halfway up block South Hermitage Avenue west side sidewalk. Spratte saw two muzzle flashes, immediately fired gun twice toward those flashes, yelled, “shots fired.”

When Winter asked Spratte where shots came from, Spratte pointed location two muzzle flashes. Spratte did observe individual white t shirt Her mitage, although does not recall exactly when. Spratte did see person next muzzle flashes, Spratte fire gun person. *5 ‐

As agents started head north towards shots, they realized Crump had been hit and was ground bleeding. bullet entered Crump’s neck just below his left ear, exiting his face through bridge his nose his eyes. Since being shot, Crump has undergone two surger ies, wound affects his vision. Crump see who shot him where shots came from.

At 3:18:26 a.m., immediately shooting, video shows Godinez running across alley heading toward his house. Godinez moves with his right hand his side, but video does reveal whether holding something.

Before shooting, Godinez exchanging mes sages via Snapchat his then ‐ girlfriend, Valerie Jean ‐ Bap tiste, who lived in neighborhood. Godinez told Jean ‐ Bap tiste pick him up 44th Wood. Before she left her house, Jean ‐ Baptiste heard shooting outside her open win dows. Then she quickly sent a message Godinez asking his location. He responded, “[b]y his house,” so Jean ‐ Baptiste drove her car there. Video showed her arriving sedan picking Godinez up within five minutes shooting. Godinez entered her car wearing dark clothing baseball cap later found car containing DNA. Jean ‐ Baptiste testified told her: “I feel good. F*** flake.” Jean ‐ Baptiste confirmed per son videos.

Together, Jean Baptiste drove nearby gas station. On way, they downloaded cellphone application police scanner monitor law enforcement activity neighborhood. They next drove second gas station where bought white t shirt put over black shirt.

Later that morning, Godinez went to his cousin’s house and dropped off car he had driven earlier that day pa ‐ trol neighborhood. evening, returned house with his son and son’s mother, Destiny Rodriguez. She showed a purported “wanted” picture his face and started cry. Hugging Rodriguez and their son, said he loved Rodriguez and he sorry everything he ever hurt her. At house, also stopped using one cellphones, which he left there.

The same day shooting, Chicago police went Back Yards neighborhood investigate. At trial, Foren ‐ sic Investigator Paul Presnell testified about work scene, included videotaping, photographing, drawing plat map, and searching and marking evidence. Presnell described ballistics recovered scene. Five casings were found in gangway South Hermitage Avenue. Those casings were clean shiny, weathered. Presnell came upon four these cas ‐ ings after other officers placed yellow crime scene mark ers noting their location. He photographed collected those four casings, left gangway search fur ther, found fifth casing nearby under leaf. Presnell found bullet lodged north side tree front South Hermitage Avenue bullet grass tween street sidewalk front South Her mitage Avenue. heard expert testimony from ATF Firearms Ex

aminer Arnold Esposito well. He testified five cas ings recovered gangway fired from same 9mm caliber firearm; bullet tree *7 bullet found grass were both fired from same gun; and most of possible firearms from which bullets been fired 9mm caliber.

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

Greene testified about analysis May audio clips sensors near 44th Hermitage. Initially, ShotSpot ter identified two gunshots having been fired near southeast corner 44th Hermitage between 3:18:14 a.m. 3:18:15 a.m. Greene testified ShotSpotter typically has accuracy feet. An hour so later, Chicago police contacted ShotSpotter asked them search ad ditional audio clips five shots, auto matically identified gunshots. Greene said happens “on semiregular basis all our customers.” ShotSpot ter located those audio clips identified five gunshots lo cated South Hermitage Avenue, 3:18:10 a.m. *8 ‐ 3425 3:18:12 a.m. The district court admitted audio record ings of shots into evidence.

The Snapchat text messages exchanged between Jean Baptiste before shooting were also re ceived into evidence, as location records their Snapchat accounts, are accurate within meters. government created animations show location of their phones May 2018. Those animations indicated phone near location of shooting when occurred, as well as near home of cousin later same day. addition, heard Chicago Police Sergeant

Neil Evans, who interviewed Spratte morning shooting. Evans questioned about Spratte’s statements seen muzzle flashes halfway up block South Hermitage Avenue well an unknown person a white t shirt. ATF Special Agent Beau Jacobsen testified about video showing an unknown person wearing a white t shirt at south end alley South Wood Street South Hermitage Avenue 2:52 a.m., minutes before shooting.

A federal grand indicted Godinez forcibly assault ‐ ing federal o ﬃ cer while using deadly weapon in violation of U.S.C. § 111(a) and (b), along discharging ﬁ rearm during crime violence violation of U.S.C. § 924(c)(1)(A)(iii). For both crimes, only element dispute whether Godinez person who shot Crump.

Godinez moved limine bar ballistics evidence and ﬁ rearms expert Esposito’s testimony, as well as ShotSpot ‐ ter evidence ShotSpo tt er employee Greene’s testimony. Godinez argued government had matched any spent casings bullets no evidence had been presented as make model gun used or when bul ‐ lets were ﬁ red casings released. On admissibility ShotSpo tt er evidence under Federal Rule Evidence requested district court conduct hear ing under Daubert v. Merrell Dow Pharmaceuticals, Inc. , U.S. (1993). motion limine, argued ShotSpot ter methodology its underlying data product reliable principles methods. ShotSpo tt er’s program ming algorithms never peer reviewed, contended, so district court should hold Daubert hearing require government establish ShotSpo tt er’s reliability. If district court ﬁ nd tech nology reliable under Daubert argued ShotSpot ter deliberately placed approximate locations shots crime scene, so should excluded un duly prejudicial under Federal Rule Evidence 403. *10 pretrial rulings, district court orally denied Godinez’s evidentiary motions. First, district court con ducted Rule analysis and concluded that ballistics evidence was relevant and overly prejudicial to Godinez. To district court, that evidence could used to show how bullets were matched to each other how casings matched each other. The government planned o ﬀ er expert testimony shed light what type gun was used—a ma tt er, district court concluded, central jury’s decision.

The district court ruled that ShotSpo tt er evidence was admissible under Rule Daubert . The district court relied upon State v. Hill Supreme Court Ne braska ﬃ rmed trial court’s quali ﬁ cation Greene an expert its determination ShotSpo tt er system su ﬃ ciently reliable. N.W.2d 689–90 (Neb. 2014). had cited no authorities demonstrate otherwise, district court noted, cross examination test accuracy Greene’s methods conclusions. Ultimately, district court remained unconvinced ShotSpo tt er evidence unduly prejudicial.

Later hearing, argued no party jurisdiction had challenged ShotSpo tt er’s methodology under Daubert . So again asked for Daubert hearing Greene testify outside jury’s presence. According Godinez, this would allow ve tt ing ShotSpo tt er’s tech nology methodology. district court rejected unnecessary re

quest Daubert hearing, noting this type tested cases involving Greene. Without calling expert witness topic, district *11 ‐ court concluded government satis ﬁ ed re ‐ quirements of Daubert . Still, district court devised com ‐ promise—the government make Greene available for questioning by defense before cross ‐ examination on stand, so defense would an advantage. For dis ‐ trict court:

[T]he principles [Greene]’s espousing, it’s question where he’s pulling out air. … principles, I think, are valid. Whether they’ve properly utilized, course, subject cross ex amination. … That’s all Daubert requires. The district court reasoned those witnesses would cor roborate where shots came Hermitage. So stood its initial ruling denying motion bar ShotSpo tt er evidence Greene’s testimony.

After six day trial, found guilty both counts. He then moved judgment acqui tt al under Fed eral Rule Criminal Procedure new trial under Federal Rule Criminal Procedure 33. The district court de nied both motions. received total sentence months’ imprisonment timely appealed convictions.

First, we address district court’s decisions admit: (A) ballistics evidence, (B) ShotSpo tt er evidence, cluding qualify Paul Greene as expert witness.

A district court’s admission ballistics related evi

dence—the testimony forensic investigator Presnell ﬁ rearms examiner Esposito, well physical *12 12 19 3425 of the bullets casings—is reviewed abuse of discre tion. United States v. Johnson , F.3d 579, 588 (7th Cir. 2019). argues Presnell should not been per mi tt ed to testify the casings located the mouth of gangway houses South Her mitage Avenue. Recall Presnell did not know who found four casings, only came upon them after yellow crime scene markers already noted their location. To Godinez, this meant reasonable precautions required show chain custody not taken. For example, after Presnell left gangway continue his search, it left unsecured, only Presnell returned did ﬁ nd ﬁ fth casing under leaf. contention falls short, though, because chain custody need not perfect. “[T]he government need only

show it took reasonable precautions preserve orig inal condition evidence.” United States v. Lee , F.3d 691, (7th Cir. 2007) (internal quotation marks omi tt ed). “When evidence in police custody, presumption regularity applies; in absence evidence contrary, we assume police tamper with evidence. And any gaps chain custody go weight given evidence, its admissibility.” United States v. Vitrano F.3d (7th Cir. 2014) (citations omi tt ed). At trial, Presnell described reasonable precautions undertaken handle ballistics evidence. These included wearing latex gloves, placing into envelopes bags, sealing those clear plastic bag date identifying infor mation, placing evidence inventory using Chicago Police Department “eTrack” system, storing bag locked o ﬃ ce, recovering using barcode *13 ‐ scanning. was free to, did, raise and explore dur ing cross examination any alleged gaps in the custody chain. because the evidence was in police custody with no signs tampering, the presumption of regularity applies. See id. Therefore, the district court not abuse its discretion al lowing Presnell testify to the location the casings.

According Godinez, no connection exists between the casings found the gangway South Hermitage Avenue the bullet that struck Crump. Bullets casings are strewn throughout violent, high crime neighborhood like Back the Yards, claims. For Godinez, the presence the casings near the gangway—and bullets straight line from where casings were found—does not make more likely o ﬃ cers were shot at from gangway, so evidence not relevant should not have admi tt ed.

We disagree. Although gun used shoot Crump was recovered, does not render inadmissible physical was recovered. Esposito testified five casings located gangway were all fired from same gun. And according Presnell, those casings were shiny, weathered; so infer they resulted from recent shooting. Esposito testified two bullets found were fired same gun, gun most likely mm firearm. This type gun usually ejects casings right. As government argued closing, if shooter stood mouth gangwa y fired south down Hermitage toward its intersection 44th where Crump hit, casings would ejected gun’s right, landing where they found—five ten feet into gangway. Esposito’s testimony trial thus fits, rather than *14 14 19 3425 conflicts, what recovered ground shooting. Because has offered only speculation how five fresh casings ejected same gun found same location, district court did abuse its discretion admitting ballistics evidence.

Next, we consider admission of ShotSpo tt er evi dence expert testimony Paul Greene, ShotSpo tt er employee.

Federal Rule Evidence 702 Daubert govern ad missibility expert testimony. We review de novo whether district court properly applied framework Rule 702 Daubert . United States v. Je tt , 908 F.3d 252, 265 (7th Cir. 2018). If district court so, decision admit or exclude expert testimony reviewed abuse discretion. Id. But if district court failed perform Daubert analysis, ad missibility expert testimony must be reviewed de novo. Kirk v. Clark Equip. Co. , F.3d 865, 872–73 (7th Cir. 2021) (collecting cases); Metavante Corp. v. Emigrant Sav. Bank , F.3d 748, (7th Cir. 2010).

Here, district court su ﬃ ciently grounded its rulings ShotSpo tt er within Daubert framework en sure deferential standard review. To sure, failure perform Daubert analysis entirely, conclusory, one sen tence ruling, can trigger de novo review. See Baugh v. Cuprum S.A. de C.V. , F.3d (7th Cir. 2017); Metavante , F.3d 760. “district court’s analysis here, although concise, much more thorough than these conclusory deter minations.” Kirk F.3d 873. So we review district court’s analysis abuse discretion. *15 15 19 3425

Among Rule 702’s requirements are witness must be “quali ﬁ ed as expert by knowledge, skill, experience, training, education” the expert’s testimony must “the product reliable principles methods.” F ED . R. E VID . 702. In Daubert , the Supreme Court explained Rule grants the district court the gatekeeping responsibility ensure the reliability proposed expert testimony. U.S. at 589. In serving gatekeeper, the district court is evaluate: “(1) pro ﬀ ered expert’s quali ﬁ cations; (2) re ‐ liability expert’s methodology; (3) relevance expert’s testimony.” Kirk F.3d (internal quota tion marks omi tt ed). asked Daubert hearing three times—in

motion in limine, during pretrial hearing, just before Greene testi ﬁ ed front jury. Although pri marily challenged reliability ShotSpo tt er methodol ogy, times contested Greene’s quali ﬁ cations. Whether Daubert hearing necessary before trial lies within district court’s discretion, here district court de clined requests hearing unnecessary. stead, district court performed its Daubert analysis based parties’ wri tt en submissions their oral argument. district court initially strayed its Daubert analysis by relying Supreme Court Nebraska’s decision Hill . Unlike Godinez, criminal defendant Hill “chal lenge underlying GPS triangulation methodology upon ShotSpo tt er location based.” N.W.2d 690. *16 Additionally, trial court in Hill conducted Daubert hear ing, id. 679–81, unlike district court in this case. That Greene had been quali ﬁ ed an expert several other cases, district court noted, is material to any Daubert analysis. quali ﬁ cation Hill does ensure reliability ShotSpo tt er’s methodology here.

In concluding that Daubert satis ﬁ ed, district court stated that principles underlying ShotSpo tt er are pulled “out air” pointed out Godinez’s opportunity to cross examine Greene whether those prin ciples were properly utilized. objections arguments this case, however, merited opportunity question dispute those principles their reliability be fore trial.

Most important for us this review ShotSpo tt er admi tt ed trial implicated system’s methodol ogy. Recall ﬁ rst, system identi ﬁ ed two gunshots— Spra tt e’s return ﬁ re. Then, Chicago police contacted ShotSpo tt er asked them search additional audio clips, system identi ﬁ ed ﬁ ve more preceding shots. This identi ﬁ cation location process goes how ShotSpo tt er collects, analyzes, reports its data—its methodology. case, district court never su ﬃ ciently explored this sue. Criticism methodology formed part defense here, therefore deserving more thorough exploration district court.

To be sure, we no reason conclude ShotSpo tt er reports analysis manipulated support certain outcome. Greene’s testimony may well correct request review audio further shots occurs “on semiregular basis all our customers.” And *17 17 19 3425 ShotSpo tt er system may adhere requirements of best available science. without a more searching examina ‐ tion of ShotSpo tt er’s methods under Daubert , we cannot con ‐ clude this evidence properly admi tt ed against Godinez. After giving due deference district court’s consideration of record, we conclude abused its dis ‐ cretion admi tt ing Greene’s testimony ShotSpo tt er evidence.

III

In addition evidentiary arguments, con ‐ tends insufficient evidence presented convict him of forcibly assaulting a federal officer while using a deadly weapon discharging a firearm during a crime of vio ‐ lence. We review de novo a district court’s denial a motion a judgment acquittal insufficient evidence. Wallace , 991 F.3d 812. doing so, we construe evidence light most favorable government, we affirm a jury’s verdict if any rational trier fact could found fense’s elements satisfied beyond reasonable doubt. Id .; see Jackson v. Virginia , 443 U.S. 307, 319 (1979).

To succeed claim insu ﬃ cient evidence trial, convicted defendant must clear what court has consist ently characterized high bar. See United States v. Torres Chavez , F.3d 988, 993 (7th Cir. 2014) (“nearly insurmount able hurdle”); United States v. Gri ﬃ n , F.3d 691, (7th Cir. 2012) (“a heavy burden” (internal quotation marks omit ted)); United States v. McCa ﬀ rey , F.3d 854, (7th Cir. 1999) (“a daunting task”). “We will reverse conviction only where record devoid reason able ﬁ nd guilt beyond reasonable doubt.” United States v. Khan F.3d (7th Cir. 2019) (citing United *18 18 No. 19 3425 States v. Heon Seok Lee , 937 F.3d 797, 807–08 (7th Cir. 2019)). And because we ﬀ ord great deference jury’s verdict of conviction, Khan , 937 F.3d 1055, deference the jury’s deliberations prevents us assessing the quality of the ev ‐ idence. See, e.g. , United States v. Smallwood , 188 F.3d 905, 914 (7th Cir. 1999). other words, we respect “the exclusive func ‐ tion determine the credibility witnesses, re solve evidentiary con ﬂ icts, draw reasonable inferences.” United States v. Reed , F.2d 107, 111 (7th Cir. 1989) (internal quotation marks omi tt ed).

On argument, we review entirety trial rec ord without ShotSpo tt er evidence Greene’s testi mony. As remaining evidence, some is circum stantial. implication circumstantial evidence is weaker than direct evidence is incorrect. See Murrell v. Frank , F.3d 1102, (7th Cir. 2003) (“Circumstantial evidence is equal probative value direct evidence some cases even more reliable.” (internal quotation marks omit ted)); United States v. Moore F.3d (7th Cir. 1997) (noting much same). We note district court here correctly instructed jury, under Pa tt ern Criminal Jury Instructions Seventh Circuit 2.03 (2012 ed.), “[t]he law does say one tt er than other.”

For crimes faced, only one element dispute trial: person who shot Crump? Based location shots, whereabouts during shooting, motive, actions shooting, su ﬃ‐ cient supported jury’s decision shot Crump. location where shots fired. From gang

way South Hermitage Avenue, *19 Presnell recovered five shiny casings. ATF expert Esposito testified that all five casings been ejected from the same 9mm caliber gun, and that recovered bullet was fired from what was most likely 9mm caliber gun. The parties stipu lated this recovered bullet contained Crump’s DNA. objects this ballistics evidence, as he did trial. But as discussed, the district court err admitting evidence. The jury could properly draw straight line from the gangway—which the videos show entering before exiting after the shooting, which the casings were recovered—to the tree where one the bullets was re covered the grass where the second bullet was found. From this evidence, rational find the casings bullets were fired from the same gun by person shooting from the gangway. speculation the casings bullets came from other shootings cannot over come jury’s permissible inference on point.

At trial, Winter Spratte—who were near Crump when shot—also corroborated location from where shots were fired. Winter testified shots were fired from northwest agents’ location, near gang way. And Spratte, who returned fire, testified location muzzle flares (halfway up block South Her mitage Avenue west side sidewalk) gangway. Nevertheless, no video directly captures shots being fired. government maintained trial awn ing blocked camera capturing th e firing gun. responds muzzle flashes still should visible, especially dark a.m. even if flashes seen video, Spratte testified saw them come same area Hermitage gangway. *20 ‐ Whether favor Godinez’s theory Spratte’s testimony is a decision the jury. whereabouts during the shooting. Godinez’s then

girlfriend, Jean ‐ Baptiste, identified him the video presented the jury, Godinez does not contest that he is depicted. Video shows him dressed dark clothing moving where he lived South Wood Street across the alley into the gangway. After the shooting, Godinez shown running back across the alley hand stationary at right side mov ing at a faster pace, example, than he depicted later video taken at the gas station he Jean ‐ Baptiste visit. View ing the the light most favorable the govern ment, rational jury could have found video places Godinez where shots were fired at time they were fired. Our dissenting colleague writes we “oversimplify facts when [we] assert jury could have drawn straight line ‘from gangway’ point where Godinez entered exited, spot where bullet casings were recov ered, area S. Hermitage where bullets themselves found.” Post at 28–29. Rather, evidence, taken whole, permits reach conclusion was location when shooting occurred.

Against all this, offers alternative explanation who shot Crump—the same one he offered trial. Spratte told Evans he saw muzzle flashes someone wearing white t ‐ shirt down street. On appeal, again serts person wearing white t shirt shooter. argues shooter because time shooting—as video shows—he wearing black shirt, wear white t shirt until *21 ‐ he bought one at the second gas station he and Jean ‐ Bap tiste visited sometime after the shooting.

But trial, Spratte did not identify the person in the white t ‐ shirt as the shooter. Instead, Spratte testified he did not re call when he saw the person in the white t ‐ shirt in relation to shots being fired, see person in white behind muzzle flashes. Moreover, video shows a person a white t ‐ shirt appearing a different location than gangway—at south end alley Wood Hermitage—26 minutes before shooting, as Jacobsen testi fied. So rational reject Godinez’s theory mystery shooter white t ‐ shirt. By this argument, Godinez asks us to assess to resolve possible ev identiary conflict, task beyond our appellate role. See Small wood F.3d 914.

Motive . Ruiz testi ﬁ ed Godinez, Latin Saint, required patrol gang’s territory to shoot rival gang members who entered territory. At trial, Godinez took position part protecting gang’s turf. video minutes leading up shooting shows slowly driving around neighborhood, if patrolling. Noticing slow ‐ moving, unfamiliar car (which contained agents), next entered quickly ex ited house (presumably get gun). He then ran gangway opening onto Hermitage, ﬁ red shots, ran back home. Mistaking agents rival gang members ﬁ ts actions before, during, after shooting. addition, Jean Baptiste testified sent her Snapchat message shortly after shooting asking her pick him up. And getting Jean Baptiste’s car, said, “I feel good. F*** flake.” According Ruiz’s *22 ‐ testimony, a “flake” means a rival gang member. jury could reasonably interpret this statement Godinez thinking he had shot at a rival gang member. Still, Godinez argues that Jean ‐ Baptiste testified trial only that he said, “’I feel good, f***’ something about ‘flake.’” But when pressed, Jean ‐ Baptiste testified Godinez said something like “f*** that flake” or “f*** those flakes.” To extent Jean ‐ Baptiste back tracked trial, government impeached her using her grand jury testimony. Again, what account to credit on this score a determination fact finder, here jury.

Godinez’s actions after shooting. Godinez Jean Bap tiste drove to a gas station after shooting, on way downloading a police scanner cell phone application to mon itor law enforcement neighborhood. True, they may wanted to know what going there. a rational jury could also infer Godinez—aware law enforce ment officers flooded Back Yards estab lished two perimeters around crime scene—wanted to avoid questioning capture. From Godinez later leaving his car phone cousin’s house, a rational jury similarly could infer he wanted keep low profile. At second gas station, bought white t shirt, he put over black shirt wore during shooting, allowing rational jury infer wished change appearance. And reaction Rodriguez’s expression emotion, rational jury could conclude regret ted actions, including shooting. Viewed light most favorable government, what shooting allow rational find shot Crump. *23 23 19 3425

Based on ample intersecting evidence presented during six day trial, a rational jury could conclude beyond a reasonable doubt shot Crump. Our dissenting colleague disagrees, offering competing inferences evidence each step. jury have reached those ferences, but it did not. And even if no single inculpatory fact proves guilt, complementary nature evidence whole permitted reasonable find guilty. Be cause has not shown government submitted no evidence rational trier fact find him guilty be yond reasonable doubt, we must defer jury’s verdict on both counts. See Jackson , 443 U.S. 319; Khan , 937 F.3d 1055.

On final note, government disagree whether admission ShotSpotter evidence Greene’s related expert testimony was harmless error. Federal Rule Criminal Procedure 52(a) states “[a]ny error … does affect substantial rights must disregarded.” We have concluded it erroneous admit evidence related testimony without Daubert hearing, so bur den rests on government show error harm less. See United States v. Olano , U.S. 725, 741 (1993). “The test harmless error is whether, mind average juror, prosecution’s case would have been significantly less persuasive had improper evidence excluded.” United States v. Curtis , F.3d 904, (7th Cir. 2015). “We will affirm if ‘the error no substantial influence verdict’ because ‘other untainted incriminating overwhelming.’” United States v. Chaparro , F.3d 462, (7th Cir. 2020) (quoting United States v. Zuniga F.3d (7th Cir. 2014)). So “[e]ssentially, evidentiary error harmless if substantial influence *24 No. 19 3425 verdict.” United States v. Pulliam , F.3d 775, (7th Cir. 2020), amended (Sept. 2020). government has met its burden here. The ShotSpotter

evidence was cumulative other evidence presented trial to the location the shots:

 Spratte observed where the shots came from the muzzle flashes;

 Winter saw the shots came from the northwest;  casings were found the gangway South Hermitage Avenue;  plat map showed gangway where cas ings were recovered was north west agents;  straight line drawn from gangway where bullets were found Crump was shot. So ShotSpotter only evidence pointing lo cation where shots fired. argues ShotSpotter evidence—mentioned government’s closing argument—“filled [in the] holes” circumstantial case presented against him. contention misunder stands circumstantial evidence evidence all same. See Murrell F.3d 1117; Moore , F.3d 1364. Parsing circumstantial evidence direct evidence reweighs, rather than reviews, evidence. As Pattern Criminal Jury structions Seventh Circuit 2.03 (2012 ed.) states, “[i]t up [the jury] decide how much weight give any evidence, whether direct circumstantial.”

Given aggregate about location shots, government’s case against *25 significantly less persuasive without ShotSpotter evi dence. And looking beyond shooting location evidence only confirms our conclusion. rest evidence against Godinez—his whereabouts time shooting confirmed video Snapchat records, motive, actions before shooting—was overwhelming. Based all this, ShotSpotter substantial influence verdicts, rendering its admission harmless.

For these reasons, convictions are A FFIRMED . *26 ‐ W OOD Circuit Judge, dissenting . Kevin Crump, a federal agent with Bureau of Alcohol, Tobacco, Firearms and Ex plosives (“ATF”), was shot head while conducting a late ‐ night field operation Chicago at around 3:18 am May 4, 2018. Fortunately, despite his catastrophic injury Agent Crump survived. He later testified trial against alleged assailant, Ernesto Godinez, a longtime resident of neighborhood where shooting took place.

At first glance, it may seem that there was no shortage evidence against Godinez. But, I detail below, a closer look record shows that government failed connect dots between isolated pieces information, and end, failed present sufficient evidence permit a jury decide, beyond a reasonable doubt, was shooter. government’s theory stood entrance a gangway between S. Hermitage Avenue fired several rounds southward, toward ATF agents who stood intersection W. th St. S. Her mitage. (A “gangway” a narrow alley two build ings with entrance front street an exit onto a rear alley). After six day trial, a jury found guilty assaulting federal officer deadly weapon using gun commit violent felony. post trial motion acquittal, F ED . R. C RIM . P. insisted evi dence prove guilt beyond reasonable doubt. My colleagues, however, are satisfied squeaked deferential standard applies review ver dicts, so they affirm district court’s denial motion acquittal hold properly convicted. *27 27 19 3425

Although I recognize it is rarely error to affirm jury’s verdict, I believe this case is the exception proves the rule. Even viewing evidence in light most favorable to government required by Jackson v. Virginia , I would hold no rational trier fact could convict be ‐ yond reasonable doubt. 443 U.S. 307, 319 (1979). See Musacchio v. United States , 577 U.S. 237, 243 (2016) (applying Jackson standard to direct criminal appeal). At best, gov ‐ ernment presented case consistent being gunman, but no evidence (if believed) enough push ball over mid field mark, much less prove guilt yond reasonable doubt. Accordingly, I respectfully dissent.

The rule Jackson v. Virginia guides inquiry Rule motions acquittal. 443 U.S. 307; United States v. Torres Chavez , F.3d 988, (7th Cir. 2014). Under rule, we view evidence light most favorable govern ment “defer credibility determination[s] jury.” United States v. Blassingame , F.3d (7th Cir. 1999). We may “overturn verdict only when record con tains no evidence, regardless how is weighed, which find guilt beyond reasonable doubt.” Id . While few criminal defendants surmount hurdle pre sented Jackson , relief unheard of. See, e.g. , Smith v. Brookhart F.3d (7th Cir. 2021) (granting relief habeas corpus context, if anything even more defer ential trial outcome).

A. The Evidence Against government presented ample establish someone located entrance gangway *28 19 ‐ 3425 S. Hermitage Ave fired the gunshots. Aside from the ShotSpotter testimony the majority thor oughly discusses, there the following evidence in the rec ord: (1) five bullet casings recovered at the mouth of the gang way, (2) eyewitness testimony from ATF agents describing muzzle flashes in direction the gangway, (3) bullets lodged various locations, whose reconstructed trajectories suggest that they fired from gangway. This enough any rational trier fact conclude whoever shot Agent Crump did so entrance gangway. But nothing evidence was enough identify shooter. show was general

area at time shooting took place. there was nothing necessarily incriminating about fact. He lived just north intersection W. th Street S. Wood Street. His home was just one block west intersection where Agent Crump shot. Tr. 629–30. Real time geolocation data his Snapchat account (a social media application) confirm 3:18 am within meters (about yards—more than football field) shooting 3:18 am. Security foot age visually confirms his presence near th Wood before shooting. And security camera alley S. Wood Street S. Hermitage Avenue captures crossing north south alley before shooting (heading westward towards Hermitage) crossing back af ter shooting (heading eastward towards Wood). On his return trip, seems run across alley right hand stationary hip.

My colleagues oversimply facts when they assert drawn straight line “from gangway” *29 ‐ point where Godinez entered exited, the spot where the bullet casings were recovered, the area S. Hermitage where the bullets themselves were found. Ante at 19. As they acknowledge, the place where Godinez entered exited the gangway is not the same as the place where the bullet cas ings were recovered. In fact, these two locations are separated by foot distance along east west axis, the spent bullets were found directly south of where the casings were recovered. How can one draw “straight line” among these three points? By referring “the gangway” in generalized terms, my colleagues gloss over the spatial details the evi dence derive single, fixed point in space at (1) observed, (2) bullet casings are found. is precisely the separation these two points at issue. fact, nothing directly places at place where casings found—not film, physical evidence, testimony. Throughout time gangway was shrouded darkness, outside range many security cameras area. Nothing, short, placed at shooter’s location critical time. Something more needed fore infer shooter.

To close evidentiary gap, government presented what my colleagues refer “motive” “actions shooting.” Hector Ruiz, gang member turned informant, testified trial Latin Saints street gang controlled Back Yards neighborhood where shooting took place. Members gang, according Ruiz, are responsible keeping rival gang members out neighborhood “[c]has[ing] them shoot[ing] them” when spotted. Tr. 729. Ruiz described “chief” street gang, subject duties all other members. Tr. *30 ‐ 723. (Although Ruiz declined to name Godinez a “chief” in his grand jury testimony discussions federal in vestigators, Tr. 753, I assume that considered Ruiz’s trial testimony truthful account.)

Before shooting, security footage captured Godinez slowly driving around Back Yards his white Kia SUV. (The majority describes this “patrolling.”) At one point before shooting, Godinez entered left his home. (“[P]resumably,” majority guesses, “to get gun,” though there no either this was his motive or he retrieved any gun while he was there.) Five minutes or so af ter shooting, Godinez picked up front his house S. Wood Street by his then ‐ girlfriend, Valerie Jean ‐ Bap tiste. He commented to her “[felt] good.” He said “fuck” (or those) “flake[s]”—a term used refer to rival gang members, though nothing indicates whether simply general sentiment if something particular prompted it.

Jean ‐ Baptiste Godinez then proceeded gas station. En route, Godinez downloaded smartphone application picks up police chatter. At gas station, pur chased white t shirt layered top his black t ‐ shirt. Security footage captured gas station around 3:33 am.

Shortly 4:40 am, returned neighbor hood got back into his white Kia SUV. Jean Baptiste drove O’Hare International Airport drop off friend. Instead driving straight back home, however, stopped his cousins’ home (in different neighborhood) traded whi te Kia cousin’s gray SUV. He re turned Back Yards morning, driving gray *31 ‐ SUV and wearing same clothes he had worn for hours. Dkt. 10. Around noon, Godinez picked up mother his child, Destiny Rodriguez, and their child, near W. rd St. S. Honore St., two blocks away shooting.

In evening May Godinez returned to his cousin’s house, this time with Rodriguez his baby. There, they all learned that he was wanted police. Rodriguez began cry ing. hugged her apologized for anything he had done to hurt her. Tr. 685. then left “one his phones” his white Kia SUV his cousin’s home, later arranged for his surrender. Dkt. 11; Tr. 708. my colleagues’ view, these facts gave jury enough

to infer that was shooter. If he was duty ‐ bound to shoot rival gang members, they suggest, then conceiv able that he mistook ATF agents for rival gang took steps needed to drive them neighborhood. When entering Jean Baptiste’s car, comment “I feel good, fuck that flake” might way saying that he was sat isfied with what just happened nearby (whatever that was—nothing indicates shooting was only con ceivable event). My colleagues believe enough per mit jury infer pulled trigger. Further, they believe Godinez’s act downloading police scan ner, layering up different colored t shirt, trading white Kia gray SUV permitted jury infer trying avoid capture. Finally, they reason apology Rodriguez would permit infer expressing remorse shooting federal agent. each these leaps goes too far.

B. Gaps in Evidence

If only evidence against Godinez his supposed motive actions after shooting, Godinez would likely have walked away a free man. Let’s start with motive. Our court recognizes that when “evidence gang membership [is] necessary explain motive behind crime charged,” United States v. Montgomery F.3d (7th Cir. 2004), jury may rely evidence gang affiliation establish requisite motive. But jury still needs a basis for concluding that putative gang member actually com ‐ mitted crime. Mere gang membership does suffice, lest police receive carte blanche authority round up every sus pected gang member hopes that jury will conclude that least one them must near alleged crime site thus was guilty. At best, Ruiz’s testimony characterizing “chief” Latin Saints gang permitted draw inference that had reason shoot Agent Crump (mistaking him rival gang member). But motive alone provides no basis inferring that per formed any particular act.

Another piece my colleagues find damn ing Godinez’s act driving slowly around neighbor hood before shooting. They characterize “patrol ling,” again, no supportive evidence. Even more specu lative their view actions after he spotted unknown vehicle. He stopped off briefly house. From simple act, they surmise retrieved gun home. there was no gun: there was no proof gun house; there was no proof anyone house had gun gave Godinez; there no proof gun left house. I cannot accept *33 proposition that proof of gun possession is complete simply by showing that a person entered left his own home, pe ‐ riod. Too many other reasons easily explain that brief stop: may needed to use restroom, grab a cell ‐ phone, or drink some water; possibilities are endless. There is no basis inference that obtained a gun during that stop. Inferences are based fact, not specu ‐ lation, all we can do with knowledge that enters home out sight security cameras is speculate what inside.

Five minutes after shooting, said “I feel good, fuck flake.” Are these words a gunman? Perhaps. But they words a gang member who heard gunfire nearby, walked away area unscathed, assumed a rival gang member had shot. sup posed “motive” presents, best, a case just con sistent with Godinez’s guilt with innocence. That’s enough.

What about actions 3:18 am shooting? He downloaded police scanner app, decision my col leagues believe support inference “wanted avoid questioning or capture.” how is any different flipping local news or turning Twitter learn what happened nearby? Again, act is equally con sistent with criminal culpability ( e.g ., desire stay one step ahead police tuning into their public broadcasts) variety innocent reasons cannot support convic tion. This question weight credibility; ques tion about whether factual prerequisites are place support inference my colleagues believe drew. *34 ‐

Godinez then “changes his appearance,” when he layered white t ‐ shirt top his black t ‐ shirt. They see sinister move designed to evade capture. In my view, too weak reed to support jury’s verdict. What really changed? Godinez still had discernable long hair under cap, dark colored shorts, same black t ‐ shirt under neath. Particularly his own neighborhood, which he did try to avoid, slipping white t ‐ shirt means little. Old Farmer’s Almanac reports that temperature that night went down to degrees Fahrenheit, that there was light pre cipitation, that wind ranged from mph to gusts mph. See https://www.almanac.com/weather/history/IL/ Chicago/2018 04. For all we know, Godinez thought he would more comfortable with another layer. While I am no expert art disguise, I would expect more shooter attempting to avoid detection.

My colleagues then suggest “[f]rom later leaving his car phone cousin’s house, rational jury similarly could infer he wanted stay away neighborhood.” makes no sense. first place, af ter trading his white Kia his cousin’s gray SUV, he drove right back into neighborhood wearing same clothes he worn hours before. No rational conclude wanted do exact opposite (leave) what he actually (return neighborhood several times hours after shooting). My colleagues then misread facts pertaining phone. visited his cousin’s house twice—once drop off his Kia, later return Rodriguez. It second visit, during learned wanted police, “abandoned one cellphones” cousin’s house. Dkt. *35 (emphasis added). Presumably he still the other phone.

My colleagues make another leap: that “from reaction Rodriguez’s expression emotion [after finding out he was wanted by police], rational jury could conclude Godinez regretted actions, including the shoot ing.” Rodriquez’s testimony does leave door open for this theory. When hugged Rodriguez, “he was just saying [to her], ‘I love you’ saying was sorry for everything he’s ever done [her] ever hurt [her].” Tr. 685. Maybe generalized expression remorse (such “I’m sorry everything”) might permitted ference suggested my colleagues, but is what said. Instead, specifically included entire course their relationship, so doing, left no room inference my colleagues believe jury draw.

Last, I must address might swayed convict Godinez. The government’s key exhibit, la beled GX106, contains footage security camera alley S. Wood Street S. Hermitage Avenue. video, is seen walking westbound Wood Street side alley Hermitage Avenue side. time 3:16:69 am, minutes before shooting. (The still image below timestamped 3:19:47 am, would shooting if camera’s internal clock accurate. At trial, however, government’s expert clarified alley camera’s internal clock ran minutes seconds ahead). Afte r shooting, 3:18:27 am, alley camera cap tures heading eastbound back towards Wood Street. (That still image timestamped 3:21:15 am).

As my colleagues describe it, image right shows “running back across alley with his hand station ary his right side moving faster pace” than usual. Of course, there is nothing inherently suspicious about per son’s running away gunfire; failing stand place when bullets start flying is prerequisite inno cence. And while holding one’s hand stationary while all else motion might indicate person holding some thing (in case, majority speculates, gun), arm positioning loses its significance when we consider his depiction GX104, contains footage gas station recorded approximately minutes Agent Crump shot. seeing walking right hand sta tionary side, holding what seems cell phone.

Thus, neither speed nor posture indicates guilt. Nonetheless, my colleagues are willing say “a rational have found video places Godinez where shots were fired at time they were fired.” But it does no such thing; it does even place him within short distance place where shots were fired. All does is indicate may nearby. Anything fur ther is nothing but speculation. GX106, is seen entering exiting gangway

from which, gangway’s entrance on Hermitage (100 feet west where filmed), person fired several shots towards federal agents. But walking toward destina tion same arriving. Nothing government’s videos depicts arriving gangway’s entrance S. Hermitage Avenue. At most, they show tra jectory consistent arriving destination gunshots fired. remainder foot journey remains unobserved:

Above, I highlight Godinez’s observed crossing in al ley with yellow triangle, I denote unobserved mouth gangway red circle. only way close gap these two points through speculation continued straight line path. True, “a body motion will remain motion unless acted upon external force.” Isaac Newton, Philosophiæ Naturalis Principia Mathematica (1687). we can take judicial notice fact human beings independent agency. People stop. People hesitate. People turn around, change their minds. And sometimes, people run. There enough rec ord case place mouth gangway critical moment beyond reasonable doubt.

I would accordingly reverse denial mo tion acquittal, I respectfully dissent decision affirm.

Notes

[1] facts relayed below are taken trial transcript, videos, exhibits district court.

[2] So named its proximity former Union Stock Yards. See Up ton Sinclair, Jungle (1906).

[3] Before jury, Greene described how ShotSpo tt er works. He testi ﬁ ed ShotSpo tt er employs “multilateration”—its term using sev eral known geographic points identify unknown one. It calculates a sound’s di ﬀ erent arrival times di ﬀ erent sensors plot hyperbolic curve. Repeating process over multiple pairs sensors generates series curves. Plo tt ing curves map results curves inter secting geographic coordinate with speci ﬁ c latitude longitude. ShotSpo tt er then uses software match geographic coordinate with street address along time shooting number rounds ﬁ red.

[4] We note compromise o ﬀ ered district court—allowing defense question Greene before took stand—does appear occurred.

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