UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANGELICA GUZMAN-CORDOBA and JOEL ALVARADO-SANTIAGO, Defendants-Appellants.
Nos. 19-2526 & 19-2937
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 7, 2020 — DECIDED FEBRUARY 12, 2021
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 17-cr-00165 — Tanya Walton Pratt, Judge.
ST. EVE, Circuit Judge. Between 2016 and 2017, Angelica Guzman-Cordoba and Joel Alvarado-Santiago participated in an extensive drug trafficking organization operating out of Indianapolis and Chicago. Nine defendants were ultimately indicted as part of a federal investigation into the organization‘s activities. This consolidated appeal concerns just two of those
In April 2019, a jury convicted Guzman-Cordoba of conspiracy to distribute and possession with intent to distribute controlled substances and distribution of methamphetamine. The jury also convicted Alvarado-Santiago of conspiracy to launder money. At trial, Guzman-Cordoba presented a duress defense, in which she asserted that she had been forced to join the drug trafficking organization through violence and threats of violence to herself and her family. Alvarado-Santiago defended himself on the grounds that he did not know that the money he had sent to California and Mexico was drug money. He claimed he was just an unknowing and innocent conduit for the funds.
On appeal, Guzman-Cordoba and Alvarado-Santiago argue that the district court made several errors during trial. First, Guzman-Cordoba maintains that the district court erred in limiting the evidence she attempted to introduce regarding her duress defense and also erred in instructing the jury on that defense. Guzman-Cordoba further contends that the district court erred in ordering her to forfeit roughly $10,000 in cash that was found at one of the organization‘s stash houses. For his part, Alvarado-Santiago insists that the district court erred in only admitting a portion of his post-arrest statement and further erred in admitting a statement by Guzman-Cordoba without limiting the jury‘s ability to consider that evidence against him. Finally, he claims the district court erred
Finding no reversible error as to either Guzman-Cordoba or Alvarado-Santiago, we affirm their convictions and sentences.
I. Background
This case is about Guzman-Cordoba and Alvarado-Santiago‘s participation in a large-scale drug trafficking organization (“DTO“) operating out of Indianapolis. Co-conspirators Ricardo Ochoa-Beltran and Miguel Lara-Leon led the organization and were also indicted for their crimes.1 At their direction, several co-conspirators distributed methamphetamine, heroin, cocaine, and marijuana and sent the proceeds to California and Mexico. The operation included several stash houses in the Indianapolis area.
Cesar Salgado, another co-conspirator and Guzman-Cordoba‘s boyfriend, brought her into the organization. Over time, Guzman-Cordoba began to sell drugs directly on behalf of the DTO, guard an Indianapolis stash house, and carry drugs and money between Indianapolis and Chicago. During the investigation of the DTO, Guzman-Cordoba sold drugs to confidential informants and to undercover Drug Enforcement
Alvarado-Santiago was not charged as a co-conspirator in the DTO, but was instead charged with conspiracy to commit money laundering, in violation of
Alvarado-Santiago employed several strategies to avoid suspicion or detection by InterCambio Express or the authorities. Although members of the DTO might drop off upwards of $10,000 in cash to transfer on a particular day, Alvarado-Santiago broke the funds up into smaller amounts to avoid triggering additional review by InterCambio Express. In addition, he routinely notified his co-conspirators if the system flagged destination names or addresses as suspicious. He provided a receipt from each transaction to a member of the DTO (often Salgado), but those receipts never contained a customer‘s signature. Salgado or another co-conspirator paid Alvarado-Santiago $400 for each $10,000 drop that he successfully wired.
At trial, the government introduced evidence of the conspiracy through the testimony of a confidential informant, several law enforcement officers, and Salgado, who pled guilty and cooperated with the government. Through these
Guzman-Cordoba proffered a duress defense, which the district court permitted her to present to the jury.2 She took the stand in her own defense and testified that she had acted under duress throughout the duration of her involvement with the DTO. She had fallen under the organization‘s control through Salgado—her boyfriend—who ultimately cooperated with the government and testified against her. She feared for her life and those of her children, and members of the conspiracy had made real and immediate threats against her. At times, she was not permitted to see her children, including a
Alvarado-Santiago defended himself by attacking the government‘s contention that he was aware that he was laundering drug money. He also testified in his defense. He denied that he was the individual referred to as “kartero” and denied knowing that he was laundering drug money. He instead testified that he had written down some of the names he had been asked to wire money to in order to audit, or investigate, what he thought might be suspicious transactions.
Despite these defenses, the jury convicted both Guzman-Cordoba and Alvarado-Santiago of all charges.
II. Guzman-Cordoba‘s Appeal
On appeal, Guzman-Cordoba makes three arguments. First, she argues that the district court improperly limited the evidence of her duress defense. Second, she argues that the district court erred when instructing the jury regarding her duress defense. Based on these objections, Guzman-Cordoba contends that she is entitled to a new trial. Third, she asks this
A. Evidence of Other Deaths
Guzman-Cordoba first argues that the district court abused its discretion in barring evidence of two deaths that she argued were relevant to her duress defense. The district court allowed Guzman-Cordoba to present a duress defense,3 and instructed the jury accordingly, but the court limited the supporting evidence on relevance grounds. Specifically, the court did not permit her counsel to cross examine the cooperating witness, Salgado, about the death of another DTO member, “Pac-Man.” The district court also prohibited counsel from eliciting testimony from Guzman-Cordoba about the
We review properly preserved objections to a district court‘s evidentiary decisions for an abuse of discretion. United States v. Washington, 962 F.3d 901, 905 (7th Cir. 2020). “Abuse of discretion is, of course, a highly deferential standard. We give special deference to evidentiary rulings[.]” United States v. Groce, 891 F.3d 260, 268 (7th Cir. 2018). A trial court abuses its discretion only when “no reasonable person could take the view adopted by the trial court.” United States v. Cash, 394 F.3d 560, 564 (7th Cir. 2005).
Here, the district court reasoned that the two deaths were irrelevant to Guzman-Cordoba‘s duress defense. We agree. Regarding Pac-Man, Guzman-Cordoba failed to identify any evidence that she knew Pac-Man, knew of his death, or believed that the DTO had a hand in his death. Indeed, even Salgado was unaware of who specifically killed Pac-Man. Given this complete lack of connection to Guzman-Cordoba, Pac-Man‘s death is not relevant to the question of whether she “reasonably feared immediate death or serious bodily harm” at the DTO‘s direction. Sawyer, 558 F.3d at 711. At oral argument, counsel argued that the district court did not allow Guzman-Cordoba to develop the record on whether she had any direct knowledge of Pac-Man‘s demise. It is counsel‘s responsibility to develop the necessary record, however, not the court‘s, and appellate counsel was unable to point to anywhere in the record where trial counsel requested the opportunity to develop the record on this question or where the district court denied counsel the opportunity to do so.
Regarding Guzman-Cordoba‘s father, he died after she had been arrested, so the fact of his death, and even her
We have repeatedly cautioned that the duress defense is limited to circumstances involving threats of immediate or impending death or serious bodily harm. See Sawyer, 558 F.3d at 711 (emphasizing that the duress defense requires a showing that the defendant “acted under a threat of a greater immediate harm” and that “fear of death or serious bodily injury is generally insufficient“); United States v. Fiore, 178 F.3d 917, 923 (7th Cir. 1999) (emphasizing the need for an immediate threat of death or serious bodily injury such that general threats were insufficient). “Fear, by itself, will not legally justify the commission of the criminal act. There must be evidence that the threatened harm was present, immediate, or impending.” United States v. Tanner, 941 F.2d 574, 587 (7th Cir. 1991). Given the restricted reach of the duress defense, the district court did not abuse its discretion in limiting Guzman-Cordoba‘s evidence to acts or threats of violence of which she was aware while committing crimes on behalf of the DTO.
In resisting this conclusion, Guzman-Cordoba points to a section of Sawyer explaining that in the context of an ongoing crime, like a conspiracy, a defendant claiming duress must have “ceased committing the crime as soon as the claimed duress lost its coercive force.” Sawyer, 558 F.3d at 711. In other words, once the duress ends, so must the criminal behavior, or else the defendant loses the defense. Guzman-Cordoba mischaracterizes Sawyer by arguing that since the duress did not end with her arrest (because she believed that the DTO
Guzman-Cordoba further contends that excluding the evidence of her father‘s death left a conceptual void in her story. She points to her conviction as evidence that the jury did not understand her narrative. But a conviction does not mean that the jury failed to understand her defense. It just rejected it. Indeed, the district court‘s limitation on Guzman-Cordoba‘s duress defense did not deprive her of her ability to present the defense. To the contrary, the trial transcript contains evidence that the organization recruited Guzman-Cordoba through Salgado, that other co-conspirators abused and beat her, and that she was terrified to leave the organization. The district court gave Guzman-Cordoba wide latitude to argue her defense and to testify regarding the violence she experienced at the hands of various DTO members. In her opening statement, defense counsel detailed how Guzman-Cordoba was beaten by members of the conspiracy. For example, she explained that two men beat her “until she was bloody.” She was “naked, lying bleeding, and crying on the floor. ... [And] at the time, [she] was 21 years old, had just had a baby, and she [was] on the floor sobbing.” Guzman-Cordoba then
In light of the facts of this case and Guzman-Cordoba‘s inability to connect either death with any reasonable fear of imminent and serious bodily harm, the district court did not abuse its discretion in disallowing this evidence.
B. Duress Instruction
Guzman-Cordoba next argues that the district court erred in its duress instruction. The district court provided the Seventh Circuit pattern jury instruction to the jury, which stated:
To establish that she was coerced, Defendant Angelica Naomi Guzman-Cordoba must prove that both of the following things are more likely true than not true:
- She reasonably feared that members of the drug trafficking organization would immediately kill or seriously injure her if she did not commit the offense; and
- She had no reasonable opportunity to refuse to commit the offense and avoid the threatened harm.
At the jury instruction conference, the government objected to Guzman-Cordoba‘s request for the duress instruction. The district court overruled the government‘s “strenuous objection” and instructed the government that it would “have to convince this jury beyond a reasonable doubt that she was not under duress.” Guzman-Cordoba‘s counsel requested the Seventh Circuit‘s pattern instruction, which includes a bracketed option of instructing the jury on threats of harm to the defendant or “specified third persons.” The record is not clear whether counsel requested that the jury instruction indicate that the threatened harm could be to both the defendant and third persons. Even if she did, defense counsel did not raise an objection to the court‘s chosen phrasing of the defense, which referred only to harm to the Defendant, at the conference. On the following trial day, the district court again confirmed with the parties that all objections had been made and that the parties otherwise agreed to the instructions. The court specifically asked Guzman-Cordoba‘s counsel if she had any other objections, to which counsel responded, “No, Your Honor. I approve them.”
Because Guzman-Cordoba‘s counsel approved the jury instructions, she has waived her argument that the duress instruction was incomplete. See, e.g., United States v. Natale, 719 F.3d 719, 729 (7th Cir. 2013) (“[A] defendant‘s affirmative approval of a proposed instruction results in waiver[.]“) (citing United States v. Courtright, 632 F.3d 363, 371 (7th Cir. 2011)). “[W]aiver extinguishes all appellate review of an issue.” United States v. Turner, 651 F.3d 743, 747 (7th Cir. 2011).
Finally, as part of Guzman-Cordoba‘s sentence, the district court ordered forfeiture of a small arsenal of revolvers, pistols, handguns, and rifles found at the stash house, as well as $9,795 that was found with the weapons, consistent with the superseding indictment, which provided for the forfeiture of all property derived from the proceeds of the crime. Guzman-Cordoba argues that the district court violated
Second, in cases tried to a jury, “the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.”
Nevertheless, because Guzman-Cordoba did not raise either of these errors before the district court, they are subject to plain error review. See Fisher, 943 F.3d at 814 (applying plain error review where defendant did not object to district court‘s failure to put forfeiture question to the jury); Dahda, 852 F.3d at 1297 (applying plain error review where
Guzman-Cordoba fails to explain how the district court‘s failure to enter a preliminary order of forfeiture would have impacted the outcome of the proceeding. She also does not argue that she lacked notice of the property subject to forfeiture. Because the indictment put Guzman-Cordoba on notice of the property the government sought to forfeit, the outcome of the proceeding was not impacted by the district court‘s error. See Dahda, 852 F.3d at 1297–98.
Regarding the district court‘s failure to put the forfeiture question to the jury, in order to prevail, Guzman-Cordoba must show that no reasonable juror would not have found the required nexus between the cash and her crimes. “Determining forfeitability without inquiring whether a party would
Accordingly, on plain error review, neither of the district court‘s Rule 32.2 errors affected Guzman-Cordoba‘s substantial rights. The forfeiture order is therefore affirmed.
III. Alvarado-Santiago‘s Appeal
Alvarado-Santiago asks the Court to vacate his sentence and remand for a new trial because, he argues, the district court made two evidentiary errors and improperly gave the jury the “ostrich instruction.”
A. Admission of the Defendant‘s Redacted Post-Arrest Statement
Alvarado-Santiago first contends that the district court abused its discretion and made a “rule of completeness” error under
Federal agents interviewed Alvarado-Santiago after his arrest on June 25, 2018. During the interview, Alvarado-Santiago claimed that he knew that the money brought to him by Ochoa-Beltran and Salgado was likely “bad” and related to drugs. In explaining how he knew the money was drug money, he made disparaging comments about Mexicans being gang members: “The majority of Hispanics like him [Ochoa-Beltran] are working drugs. ... They‘re from gangs.” He told officers that he knew it was bad money because the individuals who came in to wire the money wore lots of gold jewelry and earrings. Alvarado-Santiago also commented on the quantity of money that Ochoa-Beltran and Salgado wired from this store. The government redacted these disparaging remarks, as well as some sections of the transcript that included denials of Alvarado-Santiago‘s knowledge, played the recording of the interview for the jury, and provided the jury with a corresponding redacted transcript.
By way of background, the redactions of Alvarado-Santiago‘s statement proved to be a moving target for the district court. Initially, the parties agreed to the redactions at a pretrial conference for the purpose of avoiding any discussion of the Defendants’ national origins and further avoiding a Sixth Amendment Bruton problem for co-defendant Ochoa-Beltran, who pled guilty just before trial. Alvarado-Santiago did not object to the admission of the redacted interview, and he did not object to the government‘s redactions either before or during the admission of his statement before the jury. Counsel ultimately raised the Rule 106 challenge after the video had
Over the next couple of days, the district court generously provided defense counsel with several opportunities to make his proposal on how to “complete” the video. Ultimately, counsel was unable to point to specific portions of the transcript that were necessary to complete the portions played by the government. Instead, counsel sought to introduce the entirety of the interview. The district court declined this request. See
Given the overwhelming evidence against Alvarado-Santiago, we need not determine whether the district court abused its discretion in denying his request to play his full interview for the jury, because any alleged error by the district court was harmless. “Errors in the admission of evidence will be deemed to be harmless unless they had a substantial and injurious effect or influence on the jury‘s verdict.” United States v. Reese, 666 F.3d 1007, 1017 (7th Cir. 2012) (quoting Datamatic Servs., Inc. v. United States, 909 F.2d 1029, 1033 (7th Cir. 1990)).
B. Guzman-Cordoba‘s Statements
Alvarado-Santiago also challenges the admission of an out-of-court statement by Guzman-Cordoba in which she identified him as “kartero.” During its rebuttal case, the government called an agent who testified to his post-arrest interview of Guzman-Cordoba. The agent testified that Guzman-Cordoba recognized Alvarado-Santiago and identified him as “kartero,” during this interview.
The government introduced Guzman-Cordoba‘s post-arrest interview after she contradicted her prior statements on cross-examination. When asked whether she remembered identifying Alvarado-Santiago as “kartero,” she said she did not remember. She further testified that she thought she went once to the grocer to deliver money. She said she did not remember telling the officers otherwise. Guzman-Cordoba also testified that she did not remember Alvarado-Santiago providing her with receipts for the transactions; that she did not remember that he was given a cell phone; and that she did not remember “telling law enforcement that a cell phone was provided to the defendant so that he could send pictures of the receipts to Gio [Ochoa-Beltran].” Finally, the prosecutor asked, “Do you remember speaking with law enforcement about the [defendant]?” When Guzman-Cordoba answered “No,” the prosecutor followed up with, “You forgot that whole conversation?” and Guzman-Cordoba responded, “I guess so.” As a result, the district court allowed the government to introduce her prior statements to law enforcement, which, among other things, identified Alvarado-Santiago as “kartero.”
On appeal, Alvarado-Santiago contends that the district court erred by admitting Guzman-Cordoba‘s statements about him, and that even if the statements were admissible against Guzman-Cordoba, they were not admissible against
First, the district court did not abuse its discretion when it admitted Guzman-Cordoba‘s testimony against her. Guzman-Cordoba‘s statements are non-hearsay under
Second, given the admitted evidence, the district court properly instructed the jury that it could “not consider the statement of one defendant as evidence against the other defendant.” The court further instructed the jury that prior inconsistent statements by either defendant were “only to help
We agree, however, that the prosecutor‘s invitation to the jury to use Guzman-Cordoba‘s statements against Alvarado-Santiago was not appropriate. “We employ a two-part test for assessing the propriety of remarks made during closing argument: first, we determine whether the comments, examined in isolation, were improper.” United States v. Durham, 211 F.3d 437, 440 (7th Cir. 2000). Second, we “review the statements alongside the entire record and ask whether the statements deprived [the defendant] of a fair trial.” United States v. Briseno, 843 F.3d 264, 269 (7th Cir. 2016).
Because Alvarado-Santiago failed to object to the prosecutor‘s comments at trial, we review the district court‘s allowance of the prosecutor‘s statement for plain error.
Here, the prosecutor‘s reference did not deprive Alvarado-Santiago of a fair trial nor would the outcome of the trial have been different had the prosecutor not made the comment. The comment itself was relatively short and not egregious. Indeed, after rhetorically asking the jury whether they had to rely on Salgado‘s or Guzman-Cordoba‘s identification of Alvarado-Santiago as “kartero,” the prosecutor told the jury that they did not need to rely on that identification, because “[y]ou can trace the physical evidence and the electronic evidence in this case, and they show you, they prove, that the defendant is Kartero.” In addition, Alvarado-Santiago took the stand in his own defense and thus had an opportunity to rebut the implication that he was “kartero.” Moreover, the district court properly instructed the jury that the lawyers’ arguments were not evidence and that the statements of either defendant could not be used against the other defendant. See United States v. Cornett, 232 F.3d 570, 576 (7th Cir. 2000) (“[W]e focus on the jury instructions and the weight of the evidence when assessing the prejudicial nature of a prosecutor‘s improper comments.“); see also Briseno, 843 F.3d at 270. Finally, as the prosecutor argued, the other evidence against Alvarado-Santiago was overwhelming. The prosecutor‘s comments “were not critical to the outcome of the case,” Cornett, 232 F.3d at 576, and there is no risk that the “outcome of the proceedings would have been different had the statements not been made,” Briseno, 843 F.3d at 269.
Third and finally, Alvarado-Santiago argues that the district court abused its discretion by giving the “ostrich instruction” for deliberate avoidance of knowledge to the jury, over his objection.6
We “ordinarily review a district court‘s decision whether or not to give a particular instruction for an abuse of discretion but evaluate de novo whether an instruction was appropriate as a matter of law.” United States v. Tanner, 628 F.3d 890, 904 (7th Cir. 2010) (citing United States v. Wilson, 134 F.3d 855, 868 (7th Cir. 1998). “An ostrich instruction should not be given unless there is evidence that the defendant engaged in behavior that could reasonably be interpreted as having been intended to shield him from confirmation of his suspicion that he was involved in criminal activity.” United States v. Macias, 786 F.3d 1060, 1062 (7th Cir. 2015).
Alvarado-Santiago argues that he was like the defendant in Macias, who we suggested may have been a “total dupe” but not necessarily a co-conspirator. Id. at 1061. There, the
Here, the government presented ample evidence showing that Alvarado-Santiago had acted to avoid knowledge of the source of the large sums the DTO asked him to transfer out of the country. The Global Compliance Director of InterCambio Express testified, for example, about the company‘s policies regarding requiring identification for transactions exceeding $1,500 and increasing levels of scrutiny for increasingly larger transactions. The government also introduced the posted policies regarding required identification and the escalating levels of review for wire transfers.7 Despite these policies, the
Based on this evidence, the jury could have concluded that Alvarado-Santiago did in fact receive the $10,000 deposits from the co-conspirators, and that he divided those sums into smaller wire transfers to avoid detection by InterCambio and to avoid finding out with certainty that he was handling drug money. This evidence distinguishes this case from Macias because the government presented evidence that Alvarado-Santiago acted to avoid discovering the truth by dividing up the larger sums of money into smaller wire transfers. Moreover,
office. For transfers between $3,000 and $4,999, the agent must fax a copy of the sender‘s social security card, identification, and signed receipt to the central office. For transfers between $5,000 and $9,999, the agent must fax a copy of a recent pay stub for the sender, their social security card, identification, and signed receipt to the central office. Finally, transfers over $10,000 incur all of the foregoing requirements, and the agent must first call the central office for authorization.
V. Conclusion
For the foregoing reasons, we AFFIRM Guzman-Cordoba‘s and Alvarado-Santiago‘s convictions.
Notes
We also note that the threat of future violence, often implied and sometimes express, is frequently the currency of drug trafficking operations, and allowing a duress defense in circumstances such as this where the defendant has not shown the requisite elements would flood drug prosecutions with jury instructions in cases where they are unwarranted. Sawyer, 558 F.3d at 713. Because the parties have not raised this issue on appeal, the Court need not take a position on whether the duress defense was proper under these circumstances.
You may find that Defendant Alvarado-Santiago acted knowingly if you find beyond a reasonable doubt that he believed it was highly probable that the money involved in the wire transfers represented proceeds of some form of unlawful activity or that the wire transfers were designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control of the proceeds of the distribution of controlled substances, and that he took deliberate action to avoid learning those facts. You may not find that the defendant acted knowingly if he was merely mistaken or careless in not discovering the truth, or if he failed to make an effort to discover the truth.