In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1974
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F ERNANDO K ING,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cr-00904-1—David H. Coar, Judge.
A RGUED S EPTEMBER 9, 2010—D ECIDED D ECEMBER 3, 2010
Before W OOD , E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. Fernando King, a high-ranking
member (his title was “Supreme Inca”) of the Latin
Kings street gang, was charged with conspiracy to
possess with intent to distribute in excess of five
kilograms of cocaine (count one) and attempted posses-
sion with intent to distribute 500 grams or more of
cocaine (count two), in violation of 21 U.S.C. § 846. The
government’s theory of the case was that King and
2 No. 09-1974
Augustin Zambrano, an even higher-ranking member
(a “Corona”) of the Latin Kings, agreed to accept money
and drugs from a lower-ranking Latin King who wanted
“protection” for his cocaine business. The fly in the oint-
ment was that the Latin King seeking protection, Jesse
Guajardo, was secretly working as an informant for
the government. After a week-long trial, a jury convicted
King on both counts. He was subsequently sentenced to
a term of 240 months.
King appeals, challenging several of the district judge’s
rulings along the way. Specifically, he argues that the
judge erred in denying his motion to suppress a “sham
kilogram of cocaine” seized from King and Zambrano’s
restaurant the day after Guajardo delivered it to King.
King also challenges the judge’s decision to admit gang-
related evidence, his refusal to give a jury instruction
on entrapment, and his failure to follow up on a jury
note that expressed safety concerns. Lastly, King con-
tends that the evidence was insufficient to support his
conspiracy conviction.
In October 2006, Guajardo—who agreed to cooperate
with the Bureau of Alcohol, Tobacco, and Firearms (ATF)
after being arrested for drug trafficking—had a conversa-
tion with King during which Guajardo suggested a
“business proposition.” Guajardo told King that he
(Guajardo) wanted “security . . . [l]ike a little insurance
policy,” meaning protection from the Latin Kings for his
distribution of cocaine to prevent him from being robbed
or burned by any other member of the gang. King re-
sponded that he would “talk to Carnel tomorrow. . . . So
No. 09-1974 3
somewhere down the line if I’m doing something and he
don’t feel like he’s left out. . . . And he feels like he
didn’t know nothing, you know. He don’t like that.”
According to Guajardo, “Carnel” meant Zambrano, also
known as “Viejo.” When Guajardo proposed that he talk
to Zambrano himself, King replied, “Yeah, no, we don’t
do it that way. I’ll sit down with the Viejo and I’ll get
back with you.”
In November, Guajardo had another conversation
with King about the insurance arrangement. Guajardo
reminded King that he was going to “talk to the Viejo”
first. The men then discussed the issue of payment, and
King said that Zambrano wanted it “up front.” (According
to King, Zambrano was having financial problems and
was unable to raise money from his “immigration” busi-
ness—that is, the selling of fake identification cards to
illegal aliens.) King asked for “one off the top for me
and the Viejo,” meaning a kilo of cocaine. When Guajardo
sought to clarify whether he should pay with money
or drugs, King replied that it did not matter, but if
Guajardo paid with cocaine, King “give[s] it to some-
body and they move that shit.” King then promised, “I’m
going to put my word behind it and the Viejo supports
me you know what I’m saying. Anything I’m going to
agree to the Viejo going to be right with it, you know.”
King also told Guajardo that another Latin King, Danny
Aguilar, also known as “Biggies,” had the same sort of
drug-trafficking protection arrangement that Guajardo
was seeking.
A few days later, Guajardo told King that he had re-
ceived 10 kilos of cocaine and would be receiving more
4 No. 09-1974
soon. Regarding the insurance on the 10 kilos, King said,
“I told you what we [Zambrano and King] want,” which
was a kilo of cocaine up front. Guajardo responded that
he would lose money on that deal and proposed a
$500 payment per kilo of cocaine. King said that, if he
received cocaine from Guajardo, he would “sell it real
quick for me and Carnal [sic].” More specifically, he
would have one of his “boys” sell the cocaine on King’s
behalf. Three days after that, Guajardo paid King $2,000
(it was supposed to be $5,000, but the ATF only gave
Guajardo $2,000) and promised that he would make an
additional payment of a kilo of cocaine soon, which
would cover the insurance on the kilos of cocaine that
he was about to receive.
On December 4, Guajardo went to a taqueria (a small
taco restaurant) owned by King and Zambrano to
deliver the kilo of cocaine, which, unbeknownst to King,
was a sham. King and Zambrano were both present, but
Zambrano was in a different part of the restaurant
when the exchange took place. Upon receiving the kilo
from Guajardo, King hid it in piping above a refrigerator
in the back of the restaurant. Guajardo then had a con-
versation with Zambrano about Aguilar, who, to repeat,
also had an insurance arrangement with King and
Zambrano. Guajardo was concerned because he was late
on a payment to Aguilar for cocaine and did not want
to pay any “taxes.” Zambrano replied that he had called
“Biggies” and told him to call Guajardo. King offered
to take the money on Aguilar’s behalf, but Guajardo
did not have it with him.
No. 09-1974 5
The next day, King was arrested. Pursuant to a
search warrant, officers recovered gang literature, a Latin
King constitution and manifesto, and other gang-
related materials from his home. According to the con-
stitution, a “Corona” is the highest-ranking officer of
the Latin King nation. Guajardo identified Zambrano
as one of the three “Coronas” (he was the only one not
in prison) and King as the “Supreme Inca,” a position
created by Zambrano. The constitution forbids the sale
of heroin but not cocaine. It also prohibits one gang
member from accumulating debt to another member and
provides procedures for settling grievances between
members.
That same day, at about 9:00 a.m., ATF agent Ron Zitek
and two Chicago police officers arrived at the taqueria,
which was not scheduled to open for business until
11:00 a.m. The men wore plainclothes, bulletproof vests,
and badges. After about 45 minutes, a cook named
Antonio Cabrera-Lopez arrived and opened the door.
The officers followed him inside. An alarm was
activated, and Cabrera-Lopez used a code to disable it.
Zitek then attempted to talk to Cabrera-Lopez but dis-
covered that he could not speak English very well. So
Zitek summoned a Spanish-speaking agent, Carl Jorgen-
sen. While they waited for Jorgensen, the officers stayed
in the front customer area of the restaurant.
Jorgensen and another Chicago police officer arrived
and spoke to Cabrera-Lopez. According to Jorgensen,
Cabrera-Lopez said that he was not the owner, just the
cook, but he orally consented to a search of the premises.
6 No. 09-1974
He did not want to sign a consent form, however,
because it was written in English. (Cabrera-Lopez’s
testimony was conflicting: on cross-examination, he
said that he consented but later reversed himself.)
Agent Zitek then searched the restaurant and recovered
the sham kilo of cocaine in the spot where King had
hidden it. At no time did Cabrera-Lopez tell the agents to
stop their search or to leave. According to Cabrera-Lopez,
the encounter was “polite.”
Shortly after his indictment,1 King brought a motion to
suppress the sham kilo seized from the taqueria. The
district judge framed the issues as whether Cabrera-
Lopez had authority to consent to the search and whether
his consent was voluntary. Regarding the first issue,
the judge found that, because King gave Cabrera-Lopez
the keys to the restaurant and full control over the prem-
ises (including the code to deactivate the alarm), King
assumed the risk that Cabrera-Lopez might permit
others to enter while King was absent. Regarding the
second issue, the judge found that Cabrera-Lopez’s age
and employment responsibility suggested that he could
understand the situation, and that there was no evi-
dence of coercion. The judge also specifically found that
Cabrera-Lopez consented to the search. Concluding that
Cabrera-Lopez had apparent authority and gave vol-
1
A grand jury originally indicted King on one count of at-
tempted possession with intent to distribute. Several months
later (after King’s motion to suppress was denied), a grand
jury returned a two-count superseding indictment, which
added the conspiracy charge.
No. 09-1974 7
untary consent, the judge denied King’s motion to sup-
press.
Before and during the trial, King objected to the intro-
duction of gang-related evidence. While the district
judge imposed some limitations,2 he ultimately admitted
most of the evidence, finding that it was central to
the government’s theory that King and Zambrano, as
leaders of the Latin Kings, could and did insure that
the gang provided protection for Guajardo’s drug traf-
ficking. In particular, the judge admitted recordings and
transcripts regarding: (1) the May 28, 2006, “violation” at
Frankie & Johnny’s bar, where King ordered a lower-
ranking Latin King to be beaten because he threw a beer
at Zambrano’s wife; (2) the June 1, 2006, “Crown Town”
meeting, where King rebuked several Latin King officers
who disobeyed his order to have the individual who
threw the beer stripped of his position in the gang; and
(3) the November 21, 2006, conversation, where King
explained to Guajardo that Zambrano was unable to
raise funds from his “immigration” business.
At the close of trial, the district judge denied King’s
request for a jury instruction on the issue of entrapment,
concluding that King had not shown a lack of predisposi-
tion. The judge also declined to conduct an inquiry re-
2
The judge suggested a stipulation concerning a Latin Kings
scrapbook, which was entered. He also limited the govern-
ment’s questioning on some parts of the Latin Kings constitu-
tion and only admitted the first few pages of the transcript
from the June 1, 2006, “Crown Town” meeting.
8 No. 09-1974
garding a note from the jury, finding nothing to suggest
an extraneous influence. The note stated in its entirety,
“We have reached a verdict. There are several jury mem-
bers that have concerns regarding personal safety and
security.” Lastly, the judge denied King’s motion for a
mistrial, affirming his rulings regarding the motion to
suppress, the introduction of gang-related evidence, the
entrapment instruction, and the jury note.
The first issue is whether the district judge properly
denied King’s motion to suppress. When considering a
motion to suppress, we usually review legal questions
de novo and findings of fact and credibility determina-
tions for clear error. United States v. Wesela, 223 F.3d 656,
660 (7th Cir. 2000). A factual finding is clearly erroneous
if we are “left with the definite and firm conviction that
a mistake has been made.” United States v. Gravens, 129
F.3d 974, 978 (7th Cir. 1997). If a party raises new argu-
ments for suppression on appeal, however, “we review
for plain error if the defendant can show good cause for
failing to make those arguments in the district court.”
United States v. Figueroa, 622 F.3d 739, 742 (7th Cir. 2010).
Here, King’s primary complaint—that the officers’
initial entry into the taqueria was illegal—was not devel-
oped in the district court. To repeat, the issues there
were whether Cabrera-Lopez had apparent authority to
consent to the search and whether his consent was volun-
tary. King has not established good cause for his failure
to present the illegal entry argument previously. And
even if he passed that threshold, King has not shown
error, much less plain error, in the district judge’s decision.
No. 09-1974 9
The officers entered the restaurant with Cabrera-Lopez
after he unlocked the door and disabled the alarm. They
then waited in the front customer area until he con-
sented to the search. We disagree with King that, simply
because the restaurant was not “open for business,” any
entry was automatically illegal. As the government
pointed out at oral argument, a customer could conceiv-
ably enter in a similar matter—that is, through an
unlocked door but before service hours began—to place
a special order. Furthermore, Cabrera-Lopez never
objected to the officers’ entry, and the fact that they
never expressly asked permission to enter is not
dispositive. See United States v. Lewis, 608 F.3d 996, 999-1000
(7th Cir. 2010) (citing cases and finding consent despite
the lack of an explicit, verbal exchange between the
police and the defendant).
King does not fare any better with the arguments that
he did raise in the district court. “A warrantless search
does not violate the Fourth Amendment if a person
possessing, or reasonably believed to possess, authority
over the premises voluntarily consents to the search.”
United States v. Groves, 530 F.3d 506, 509 (7th Cir. 2008).
Apparent authority turns on whether the facts available
to the officer at the time would allow a person of reason-
able caution to believe that the consenting party had
authority over the premises. Illinois v. Rodriguez, 497 U.S.
177, 188 (1990). The existence of voluntary consent is a
question of fact to be determined based on the totality
of the circumstances. United States v. Figueroa-Espana,
511 F.3d 696, 704 (7th Cir. 2007).
10 No. 09-1974
The district judge concluded that Cabrera-Lopez had
apparent authority to consent to the search. We agree.
Cabrera-Lopez had keys to the restaurant and the code
to deactivate the alarm. He also opened the restaurant
alone, and it was a small establishment. Cabrera-
Lopez’s actions clearly justified the officers’ belief that
he had full control over the premises, including the
authority to grant access to others. See United States v.
Pineda-Buenaventura, 622 F.3d 761, 777 (7th Cir. 2010)
(stating that officers have a duty to inquire further as to
a third party’s authority only “when the circumstances
make the authority questionable in the first place”).
And the fact that the officers knew that Cabrera-
Lopez was not the owner does not invalidate his au-
thority. See United States v. Matlock, 415 U.S. 164,
171 n.7 (1974) (“The authority which justifies the
third-party consent does not rest upon the law of prop-
erty . . . but rests rather on mutual use of the prop-
erty by persons generally having joint access or control
for most purposes.”).
The district judge also found that Cabrera-Lopez volun-
tarily consented to the search. Again, we agree. At no
time did Cabrera-Lopez tell the agents to stop their
search or to leave. He testified that the encounter was
“polite,” and there is absolutely no evidence of coercion.
Although Cabrera-Lopez stated (at one point) that he
did not give permission for the search, we discern no
error in the district judge’s decision to credit the
agent’s testimony that Cabrera-Lopez consented orally
but did not sign a consent form because it was written
No. 09-1974 11
only in English. The district judge did not err when he
denied King’s motion to suppress.3
The next issue is whether the district judge erred in
admitting gang-related evidence under Federal Rules of
Evidence 403 and 404. 4 We review the admission of evi-
dence for an abuse of discretion. United States v. Gorman,
613 F.3d 711, 717 (7th Cir. 2010). A reversal is appro-
priate only when the record contains no evidence on
which the district judge rationally could have based his
ruling. Id.
A defendant’s prior bad acts are inadmissible as evi-
dence to show his propensity to commit the charged
crime. Fed. R. Evid. 404(b). The evidence may be
admitted, however, for non-propensity purposes, such as
“proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake.” Id. If the “bad
acts” are really direct evidence of the crime charged,
Rule 404(b) is inapplicable. United States v. Lane, 323
F.3d 568, 579 (7th Cir. 2003). Even evidence introduced
for legitimate purposes is inadmissible if it fails to meet
3
King would have had an uphill battle even if the district judge
had improperly denied his motion to suppress. King was
captured on audio and video tape receiving what Guajardo
testified to be a sham kilo of cocaine after several recorded
conversations about the transaction.
4
In his appellate brief, King separates this issue into two
arguments, one regarding gang-related evidence in general
and the other regarding three specific pieces of evidence. But
the discussions largely overlap, so we will treat them together.
12 No. 09-1974
the requirements of Rule 403. United States v. Ciesiolka,
614 F.3d 347, 355 (7th Cir. 2010). That rule mandates
exclusion if, among other things, the probative value of
the evidence is substantially outweighed by the danger
of unfair prejudice. Fed. R. Evid. 403.
Gang-related evidence can be especially troublesome.
Because “gangs generally arouse negative connotations
and often invoke images of criminal activity and deviant
behavior . . . [g]uilt by association is a genuine concern
whenever gang evidence is admitted.” United States v.
Montgomery, 390 F.3d 1013, 1018 (7th Cir. 2004). But
“[w]e have consistently held that, under appropriate
circumstances, gang evidence has probative value war-
ranting its admission over claims of prejudice.” United
States v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996); see also
Montgomery, 390 F.3d at 1018 (collecting cases). In particu-
lar, gang-related evidence may be admitted “to demon-
strate the existence of a joint venture or conspiracy and
a relationship among its members.” United States v.
Westbook, 125 F.3d 996, 1007 (7th Cir. 1997); see also
United States v. Alviar, 573 F.3d 526, 537-38 (7th Cir.
2009) (approving the admission of gang-related evidence
to prove conspiracy allegations).
Here, although a large amount of gang-related evidence
was admitted, there was a strong link between it and
the crimes charged. The probative value of the evi-
dence was high, as it helped establish the relationship
among King, Zambrano, and Guajardo, the rank of those
men within the gang, and King’s criminal intent. More
specifically, it was central to the government’s theory
No. 09-1974 13
that King and Zambrano, as leaders of the Latin Kings,
could and did insure that the gang provided protection
to Guajardo’s drug trafficking operation, which they
exchanged for drugs and money. Furthermore (and as
we discuss later in more detail), without establishing
King and Zambrano’s positions in the gang and rela-
tionship to each other, King’s incriminating statements
regarding Zambrano’s involvement in the conspiracy
may have looked like a lot of hot air.
King focuses our attention on three specific instances
referred to at trial: (1) the May 28, 2006, “violation” at
Frankie & Johnny’s bar; (2) the June 1, 2006, “Crown
Town” meeting; and (3) the November 21, 2006, conversa-
tion concerning the immigration (the “mica”) business.5
The May 28 violation, where King ordered a lower-ranking
Latin King to be beaten for throwing a beer at Zambrano’s
wife, helped corroborate Guajardo’s testimony that King
was a high-ranking member of the gang, had a close
relationship with Zambrano, and could deliver on his
promise to provide protection for Guajardo. Similarly,
the June 1 meeting (the evidence of which was limited
by the district judge), where King rebuked several Latin
King officers who disobeyed his order to punish the
member who threw the beer, demonstrated King’s rank
5
The government contends that King forfeited his argument
that this evidence was improperly admitted under Rule 404(b).
Although the government’s contention has merit, see Alviar,
573 F.3d at 538, we need not decide this question because
we find no error in the admission of the evidence.
14 No. 09-1974
within the gang and his ability to follow through on
his promise to Guajardo.
The November 21 conversation is a little different.
There, King explained to Guajardo that Zambrano had
financial problems and was unable to raise funds from
his “immigration” business. We agree with King that
the subject of illegal aliens, especially when combined
with gang activity, is a sensitive one. But King’s com-
ments came in the context of his conversation with
Guajardo about the insurance payment. More specif-
ically, King was providing justification for Zambrano’s
requirement that the payment be made up front. The
evidence therefore helped explain the manner of
Guajardo’s subsequent payments and King and
Zambrano’s financial motive to commit the crime. Al-
though there was some other evidence on this point,
the record does not indicate that it was overkill. Because
the disputed evidence concerned the crimes charged
and was not unduly prejudicial considering its high
probative value, we conclude that the district judge
did not abuse his discretion in admitting it.
The next two issues can be disposed of quickly. The
first is whether the district judge erred in refusing to
instruct the jury on entrapment. This is a legal question,
which we review de novo. United States v. Millet, 510 F.3d
668, 675 (7th Cir. 2007). When claiming entrapment, a
defendant must establish: (1) lack of predisposition to
engage in criminal conduct; and (2) government induce-
ment of the crime. Id. Typically, all of the action is on
the first element. When analyzing predisposition, we
No. 09-1974 15
consider several factors, the most important of which
is “whether the defendant evidenced reluctance to
engage in criminal activity which was overcome by
repeated Government inducement.” United States v.
Blassingame, 197 F.3d 271, 281 (7th Cir. 1999).
King argues that he was not predisposed to commit the
crimes because he never sold drugs on a prior occasion.
This is an insufficient showing of reluctance. Moreover,
the evidence established that, while it was Guajardo
who first floated the insurance idea to King, it was King
who then discussed the proposition with Zambrano and
initiated negotiations with Guajardo. The record does not
indicate any unwillingness on King’s part to provide
protection for Guajardo or to accept cocaine as payment.
See United States v. Orr, 622 F.3d 864, 870 (7th Cir. 2010)
(finding that “the ready commission of the criminal act
amply demonstrates the defendant’s predisposition”)
(citation and emphasis omitted). The district judge prop-
erly rejected an instruction on entrapment.
The next issue is whether the district judge properly
denied King’s motion for a new trial without questioning
the jurors about their note. We review this decision for
an abuse of discretion. See United States v. Kizeart,
102 F.3d 320, 326 (7th Cir. 1996); United States v. Sanders,
962 F.2d 660, 673 (7th Cir. 1992). A judge’s duty to investi-
gate “arises only when the party alleging misconduct
makes an adequate showing of extrinsic influence to
overcome the presumption of jury impartiality.” United
States v. Davis, 15 F.3d 1393, 1412 (7th Cir. 1994) (citation
and emphasis omitted). In other words, “[a] defendant’s
16 No. 09-1974
mere allegations of taint or his unsubstantiated sus-
picions do not necessitate inquiry by the court.” Id. (em-
phasis omitted).
Here, King simply points to the jury note itself, which
stated only that some jurors “ha[d] concerns regarding
personal safety and security.” Nothing in the note sug-
gested exposure to outside influences. See Garcia v. An-
drews, 488 F.3d 370, 376 (6th Cir. 2007) (finding that a
juror’s “own subjective fear” was not extrinsic to the
trial); United States v. Thornton, 1 F.3d 149, 155-56 (3d Cir.
1993) (finding that jurors’ “general apprehensiveness
about their safety” did not indicate extraneous influ-
ences). Rather, as King argued in the district court, the
jurors’ fears likely originated from the invocation of his
membership with the Latin Kings. As this evidence
was part of and intrinsic to the trial, there was no cause
for inquiry with the jurors. The district judge properly
denied King’s motion for a new trial.
The final issue for us is whether the evidence sup-
ported a conspiracy conviction. In challenging the suf-
ficiency of the evidence, King faces a “nearly insurmount-
able hurdle.” United States v. Corson, 579 F.3d 804, 809
(7th Cir. 2009). That is so because we “view all the evi-
dence and draw all reasonable inferences in the light
most favorable to the prosecution and uphold the verdict
if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Hicks, 368 F.3d 801, 804-05 (7th Cir. 2004) (citation
omitted and emphasis added). We do not reweigh the
evidence, second-guess the jury’s credibility determina-
No. 09-1974 17
tions, or overturn a conviction because we would have
voted to acquit.
A conspiracy is “a knowing and intentional agreement
between two or more people to fulfill a particular
criminal objective.” United States v. Kincannon, 567 F.3d
893, 897 (7th Cir. 2009). So here, the question is whether a
jury could reasonably infer that King and Zambrano 6
agreed to cooperate to provide protection for Guajardo’s
cocaine sales in exchange for money and drugs. As the
government concedes, the evidence of Zambrano’s agree-
ment was indirect. But that is fine, as long as, when
viewed in the light most favorable to the government, the
evidence was sufficient to support a conviction. See
United States v. Taylor, 116 F.3d 269, 271 (7th Cir. 1997)
(“[T]he government may establish that agreement, as it
may the other elements of the charge, through circum-
stantial evidence.”); see also United States v. Gilmer, 534
F.3d 696, 703 (7th Cir. 2008) (“A conspiracy may be
shown by evidence which shows that the co-conspirators
embraced the criminal objective of the conspiracy, that
the conspiracy continued towards its common goal,
and that there were co-operative relationships.”).
During his conversations with Guajardo, King repeatedly
referenced Zambrano and the need to confer with him.
6
In its appellate brief, the government also argues that Aguilar
was a member of the conspiracy. At oral argument, how-
ever, it became clear that Zambrano is the only potential co-
conspirator, with Aguilar being more of a customer of the
conspiracy. Guajardo, a cooperating witness, is also ineligible.
See Corson, 579 F.3d at 811.
18 No. 09-1974
When Guajardo initially proposed the insurance arrange-
ment, King responded that he needed to “talk to
Carnel” and “sit down with the Viejo” first. When
Guajardo and King met again, King asked for “one off
the top for me and the Viejo,” meaning a kilo of cocaine
up front. King clarified that the payment could be in the
form of money or cocaine, but if Guajardo paid with
cocaine, “I give it to somebody and they move that shit.”
King then promised that “[a]nything I’m going to agree
to the Viejo going to be right with it, you know.” A few
days later, when Guajardo told King that he had received
his supply, King confirmed that he and Zambrano
wanted a kilo of cocaine up front to cover the insurance
costs. King said that he would “sell it real quick for me
and Carnal [sic].” After making an initial cash payment,
Guajardo later delivered a sham kilo to King while
Zambrano was present (although in a different part of
the restaurant). King’s statements therefore support the
government’s theory of the case, including the existence
of an agreement between King and Zambrano.
The gang-related evidence that we previously dis-
cussed helped establish that King’s comments were not
mere boasting. Guajardo testified that Zambrano was a
“Corona” of the Latin Kings, that King was appointed
the “Supreme Inca” by Zambrano, and that together,
they were the two most powerful Latin Kings not in
prison. The constitution found at King’s home stated
that a “Corona” is the highest-ranking officer of the Latin
King nation. The gang’s rules forbid members from
accumulating debts. And King had punished lower-
ranking gang members for offending Zambrano and
No. 09-1974 19
disobeying orders. This evidence showed that King and
Zambrano were leaders of the gang, that King worked
closely with Zambrano, and that King could back up
his promise to Guajardo that he and Zambrano would
provide protection for Guajardo’s drug trafficking con-
sistent with gang rules—or so a jury could find. See gen-
erally Alviar, 573 F.3d at 537 (explaining the role of gang-
related evidence in proving conspiracy allegations and
finding that “[t]he fact that [the defendants] were
bound together by their gang membership made it
more likely that they participated in a conspiracy”).
Furthermore, Guajardo had an important conversa-
tion with Zambrano himself. After he delivered the
sham kilo to King, Guajardo spoke to Zambrano about
Aguilar, who also had insurance protection through
King and Zambrano. Guajardo expressed concern
because he was late on a payment to Aguilar for cocaine
and did not want to pay a penalty. Zambrano replied
that he had called Aguilar and told him to call Guajardo. A
jury could infer that, had Zambrano not been a part of
the drug trafficking insurance conspiracy, he would not
have been interested in or involved with Guajardo’s
debts to Aguilar.
King’s primary argument is that there was no direct
evidence that Zambrano and King had a “meeting of the
minds”—that is, no recordings of Zambrano agreeing to
the insurance arrangement. But, as King concedes and as
we previously discussed, a conspiracy can be established
by indirect evidence. Taylor, 116 F.3d at 271. Furthermore,
the record explains why Guajardo never spoke to
20 No. 09-1974
Zambrano. When Guajardo suggested that he talk to
Zambrano himself, King replied, “Yeah, no, we don’t do
it that way. I’ll sit down with Viejo and I’ll get back with
you.” Essentially, King is asking us to reweigh the evi-
dence, which we cannot do. Corson, 579 F.3d at 812. King
was entitled to argue to the jury that, due to the lack of
direct evidence of Zambrano’s agreement, they should
reject the government’s conspiracy theory. We cannot say
that, when viewing all the evidence in the light most
favorable to the government, there was no rational basis
for the jury’s decision to find King guilty on the con-
spiracy count.
For all these reasons, the judgment of the district court
is A FFIRMED.
12-3-10