In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4056
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LEXANDER V ASQUEZ, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-00625-3—Charles R. Norgle, Sr., Judge.
A RGUED N OVEMBER 5, 2010—D ECIDED M ARCH 14, 2011
Before E VANS, S YKES, and H AMILTON, Circuit Judges.
E VANS, Circuit Judge. A jury convicted Alexander
Vasquez of conspiring to possess more than 500 grams
of cocaine with intent to distribute. He was subsequently
sentenced to serve a term of 240 months. On appeal,
Vasquez asks us to reverse his conviction and remand
the case for a new trial on several grounds: that the
judge (1) should have excluded evidence of his prior
drug conviction; (2) should have granted his motion to
2 No. 09-4056
suppress evidence found in a warrantless search of an
automobile; (3) deprived him of a meaningful oppor-
tunity to cross-examine a government witness; and
(4) should not have admitted recordings of telephone
conversations between a defense witness and a co-defen-
dant. We begin with the facts.
Vasquez and two co-defendants, Joel Perez and
Carlos Cruz, were arrested in Arlington Heights, Illinois,
following a failed cocaine transaction. The day’s events
started in the parking lot of a Shell gas station, moved to
a nearby parking lot at a Denny’s Restaurant, and finally
to the shared parking lot of a Walmart and McDonald’s.
The deal that flopped began several days earlier when
Perez contacted Cruz about obtaining a kilogram of
cocaine. Cruz then called Alejandro Diaz, whom he
knew to be involved in cocaine deals. Cruz, however,
didn’t know that Diaz was cooperating with law enforce-
ment agents. Cruz, Perez, and Diaz arranged for a deal
to go down in Arlington Heights on August 5, 2008.
On the day that it all came tumbling down, Cruz and
Perez, with Cruz driving, went to the Shell station for
the deal. There, they met Diaz who instructed them
to follow him to another location to get the cocaine.
Instead, Perez walked to the Denny’s parking lot next
door where Vasquez was waiting for him in a black
Bonneville. Perez slid into the passenger seat of the car
and called Cruz on a cell phone telling him that he was
not willing to follow Diaz; he wanted to complete the
deal at the current location. Cruz then went to the
Denny’s lot where he was introduced to Vasquez. Shortly
No. 09-4056 3
thereafter, Diaz called Cruz to find out why they were
not following him. Cruz told Diaz that Perez wanted
to complete the deal in the parking lot. Perez told Cruz
to tell Diaz that “we got the money here.” Vasquez re-
peated the statement, “tell him we got the money here.”
Cruz hung up with the understanding that Diaz was
returning to complete the deal.
Several minutes later, and after Diaz contacted his
handler, DEA Agent James Chupik, law enforcement
agents surrounded the parking lot and approached the
Bonneville to arrest Cruz, Perez, and Vasquez. In addi-
tion to several unmarked cars, six officers approached
the Bonneville on foot. As the officers approached,
Cruz, who was outside of the car, raised his hands in
surrender. Vasquez’s reaction was not nearly as sub-
missive. He put the Bonneville in reverse, striking two
Arlington Heights police cars. He then shifted gears
and headed for the exit. Agent Chupik moved in front of
the Bonneville, pointed his gun at Vasquez, and com-
manded him to stop. But Vasquez showed no signs of
stopping so Agent Chupik jumped out of the way as the
Bonneville sped out of the parking lot heading west
onto the eastbound lanes of Algonquin Road.
A few minutes later, police located the Bonneville
abandoned in a nearby Walmart parking lot. A bystander
told the police he saw two men run from the vehicle
toward a McDonald’s. An Arlington Heights detective
pursued Vasquez and Perez as they ran through the
kitchen of the McDonald’s and then out the back door.
At that point, Vasquez and Perez split up, each
running in a different direction. But the chase was short
4 No. 09-4056
lived—they were quickly apprehended by Arlington
Heights police. The police found a cell phone on Vasquez,
and two cell phones on the ground near Perez. Phone
records showed that there were calls between Vasquez
and both of Perez’s phones the day before and the day
of the arrest.
The Arlington Heights police towed the Bonneville to
the police station. During a search of the car later that
day, they found a hidden compartment in the passenger
side of the dashboard containing $23,000 in cash.
Based on this evidence, a federal grand jury returned an
indictment charging Vasquez with conspiring to possess
with intent to distribute more than 500 grams of cocaine
and with attempting to possess with intent to distribute
more than 500 grams of cocaine, each in violation of
21 U.S.C. § 846.
As the case progressed, Vasquez filed a motion to
suppress the evidence recovered from the search of the
Bonneville and the government filed a motion to
admit, pursuant to Federal Rule of Evidence 404(b),
evidence of Vasquez’s involvement in a cocaine trans-
action in 2002. The district judge denied Vasquez’s
motion and granted the motion filed by the govern-
ment. The judge found that the police had probable cause
to search the Boneville and that the 2002 cocaine transac-
tion, which resulted in a conviction, was admissible to
show Vasquez’s knowledge and intent under Rule 404(b).
At trial, Agent Chupik testified for the government.
Among other things, he testified that he instructed Diaz
to have Cruz and his “customers” come to a gas station
No. 09-4056 5
in Arlington Heights for the transaction. But according
to the actual transcript of the call, which the govern-
ment later published, Cruz referred to a single cus-
tomer as “him” and “this dude.” On cross-examination,
Vasquez’s counsel attempted to impeach Agent Chupik
on this point by refreshing his memory. The judge
limited cross-examination, however, finding that the
difference between “customers” and “customer” in this
instance was a trivial detail.
Later in the trial, Vasquez called several witnesses,
including Perez’s wife, Marina. Later still, the judge
allowed the government to recall Marina to the stand
and, among other things, question her about telephone
conversations she had with her husband while the case
was still pending.
Ultimately, the jury found Vasquez guilty on the con-
spiracy count and not guilty on the attempt charge. Issues
concerning the recall of Marina to the stand and the
telephone conversations she had with her spouse are at
the heart of Vasquez’s appeal, but we will put them
aside for the moment as we consider the other issues
raised on Vasquez’s appeal.
We begin with Vasquez’s claim that the judge should
have precluded the government from introducing his
prior drug conviction to show his knowledge and modus
operandi pursuant to Rule 404(b). We review the judge’s
ruling for an abuse of discretion. United States v. Conley,
291 F.3d 464, 472 (7th Cir. 2002). We will reverse only
if the record contains no evidence on which the judge
rationally could have based his ruling. Id.
6 No. 09-4056
Rule 404(b) provides that evidence of prior acts is ad-
missible to prove “motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or
accident,” but not “to prove the character of a person in
order to show action in conformity therewith.” Fed.
R. Evid. 404(b). We apply a four-part test to decide
whether Rule 404(b) evidence was properly admitted
and will find no error if:
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity
to commit the crime charged; (2) the evidence
shows that the other act is similar enough and close
enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury finding
that the defendant committed the similar act; and
(4) the evidence has probative value that is not sub-
stantially outweighed by the danger of unfair preju-
dice.
United States v. Vargas, 552 F.3d 550, 554 (7th Cir. 2008).
Here, the government introduced Vasquez’s prior
conviction to show that he had previously carried out a
cocaine deal with Perez using a hidden compartment in a
car. The evidence was not used to show propensity, but
rather to show modus operandi. United States v. Montoya,
891 F.2d 1273, 1285 (7th Cir. 1989) (upholding admission
of evidence under a modus operandi theory when prior
drug offense involved the defendant working with the
same person, using a car registered to another person,
and using a hidden compartment in the car).
No. 09-4056 7
The prior drug deal with Perez was certainly important
as it showed that Vasquez’s position that he was merely
an innocent bystander was a smoke screen. See United
States v. Chavis, 429 F.3d 662, 668 (7th Cir. 2005) (evidence
of a prior drug conviction is admissible when a de-
fendant claims that he was “simply in the wrong place
at the wrong time”); Vargas, 552 F.3d at 555-56 (evidence
that defendant had previously transported narcotics in
a trailer made it more likely that he knew about the
drugs hidden in the trailer in the instant case, and less
likely that he was an innocent victim).
Finally, limiting “instructions ‘are effective in reducing
or eliminating any possible unfair prejudice from the
introduction of Rule 404(b) evidence.’ ” United States v.
Jones, 455 F.3d 800, 809 (7th Cir. 2006) (internal citations
omitted). Here, the judge properly instructed the jury
regarding the purposes for which the Rule 404(b) evidence
was introduced.
Therefore, the introduction of Vasquez’s prior con-
viction clearly passes the admissibility test. It was ad-
missible to show Vasquez’s knowledge, intent, absence
of mistake and modus operandi. The judge did not abuse
his discretion in admitting the 2002 cocaine-related con-
viction.
Next, Vasquez argues that the judge should have
granted his motion to suppress the money discovered
during the search of the Bonneville. He argues that the
police violated his Fourth Amendment rights when they
conducted a warrantless search of the car after he was
taken into custody. We review a district judge’s denial of
8 No. 09-4056
a suppression motion under a dual standard: “the Court
reviews legal conclusions de novo and findings of fact
for clear error.” United States v. Jackson, 598 F.3d 340, 344
(7th Cir. 2010).
The search issue is a dead-bang loser. For one thing,
the Bonneville was abandoned, and it’s hard to see,
under the circumstances here, how Vasquez could argue
with a straight face that he maintained an expectation
of privacy in it after he ditched it and bolted off on the
run. On top of that, it’s clear that the pursuing police
had abundant probable cause to believe that drug
money was in the car. What was the probable cause?
Well, (1) Cruz told Diaz that Vasquez and Perez had the
money with them; (2) no money was found during
the searches of Vasquez and Perez; and (3) two drug-
detection dogs indicated that there were narcotics in
the passenger-side dashboard of the car. The motion to
suppress was properly denied.
Vasquez also claims that the judge denied him a mean-
ingful opportunity to cross-examine Agent Chupik, in
violation of his Sixth Amendment right to confront wit-
nesses against him. “Limitations on cross-examination
rise to the level of a Sixth Amendment violation when
they prevent the exposure of a witness’ bias and motiva-
tion to lie.” United States v. Smith, 308 F.3d 726, 738 (7th
Cir 2002). But the right to cross-examination is not with-
out limitation:
[T]rial judges retain wide latitude insofar as the Con-
frontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns
No. 09-4056 9
about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interro-
gation that is repetitive or only marginally relevant.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A Sixth
Amendment violation occurs when the defendant shows
that he was denied the opportunity to elicit testimony that
would be “relevant and material to the defense.” United
States v. Williamson, 202 F.3d 974, 979 (7th Cir. 2000)
(internal citation omitted). In this case, the judge found
that the information Vasquez hoped to elicit from
Agent Chupik, which Vasquez argues shows bias, was
trivial and a collateral issue, and therefore not relevant.
We review the judge’s ruling for abuse of discretion. Id.
Vasquez argues that the judge erred by refusing to
allow his counsel to attempt to impeach Agent Chupik
with a supposedly inconsistent statement he made in an
affidavit. Specifically, when discussing the calls between
Cruz and Diaz, Agent Chupik said in his affidavit that
there were “customers.” In fact, the calls only refer to a
single customer. The government points out, however,
that in the rest of the affidavit, Agent Chupik refers to a
single customer, undercutting Vasquez’s argument that
Agent Chupik was deliberately lying. If anything, it
suggests that Agent Chupik simply misspoke. Moreover,
Agent Chupik’s affidavit was based on a draft transcript
that had been translated from Spanish to English, and
neither the draft transcript nor the affidavit were presented
to the jury.
It is within the discretion of a trial judge to limit cross-
examination, especially when, as here, the discrepancies
10 No. 09-4056
are minor. See United States v. Mojica, 185 F.3d 780, 788-89
(7th Cir. 1999) (district court did not abuse discretion
in limiting cross-examination of a witness regarding
prior drug use when the inconsistencies were “no more
than minor discrepancies”). Thus, the judge did not
abuse his discretion when he limited Vasquez’s cross-
examination of Agent Chupik.
Vasquez also argues that the judge erred in ruling that
the he could not use transcripts to refresh Agent Chupik’s
memory. The Government acknowledges that this was
an error, but responds that it was harmless because the
judge ruled irrelevant the point on which Vasquez
was trying to refresh Agent Chupik’s memory. Evi-
dentiary rulings are reviewed for an abuse of discretion.
United States v. Schalk, 515 F.3d 768, 774 (7th Cir. 2008).
Vasquez is correct—the judge incorrectly stated that
there was “no basis to cross-examine with respect to
something not in evidence.” A document does not need
to be “admissible as substantive evidence in order to
be used for the purposes of impeaching a witness (or
refreshing his recollection).” Pecoraro v. Walls, 286 F.3d
439, 444 (7th Cir. 2002). But the government is correct
that it is within the judge’s discretion to preclude
counsel from refreshing a witness’ memory on a point
the judge has ruled trivial and a collateral issue. There-
fore, while the judge’s ruling was in error, it was
harmless error at best in this case.
Finally, we turn to Vasquez’s primary argument, the
resolution of which is where we part company with our
dissenting colleague. Vasquez asserts that the district
No. 09-4056 11
judge erred in several respects regarding the recalling of
Marina as a witness in the government’s rebuttal case
and, more importantly, in admitting into evidence the
Metropolitan Correctional Center (MCC) recordings of
her telephone conversations with her husband.
There’s no doubt that Vasquez’s trial would have
been cleaner had Marina Perez not been injected into the
show. But to put things in perspective, it’s best to step
back for a moment and look at the big picture. Joel
Perez and Cruz pled guilty to the charges against them.
Vasquez, however, elected to go to trial. Instead of relying
on a generalized defense—that the government failed
to prove his guilt beyond a reasonable doubt—Vasquez
elected to offer something in the nature of an actual
affirmative “defense” on the merits. It would be that he
was only an innocent bystander who just happened to
be in the wrong place at the wrong time. In the real
world of criminal court trials, that sort of “defense” is
difficult to sell. And it’s especially hard to sell when a
defendant, like Vasquez here, elects not to take the stand
and tell the jury his version of how he just happened to
be where the drug deal was about to go down. So how
does he get this “defense” before the jury? Enter Marina.
She was his only hope, and a slim one at that.
When called by Vasquez as a witness, Marina said
that her husband, earlier in the day, asked her to pick
him up at the place where the drug deal died. But later,
she asked Vasquez to go in her place. He agreed, and
he took the Bonneville, rather than his own car, only
because it was more convenient to do so. So if believed,
12 No. 09-4056
the jury might think that Vasquez had no idea a drug
deal was in play and that he just showed up by pure
happenstance with a car full of cash stashed away in a
hidden compartment. The if is a mighty big if, especially
when one considers that the jury knew that Vasquez
had participated in a remarkably similar drug deal in-
volving cocaine, Perez, some $15,000 in cash, and a car
in 2002.
The government obviously thought Marina’s tale was
a fish story. Based on the way the case stood at the
time, the government could have let Marina leave the
stand after a short cross-examination. That might have
been the safest course to take. But instead, the govern-
ment filed a motion to continue the trial over the
weekend based on recordings it had obtained of tele-
phone conversations between Marina and her husband,
who was incarcerated at the MCC at the time. The gov-
ernment argued that the conversations between the
two went directly to the truthfulness and accuracy of
Marina’s testimony and raised potential conflict-of-
interest issues. Vasquez’s counsel objected to the gov-
ernment’s motion to no avail. The judge held that the
MCC recordings were admissible as extrinsic evidence
of Marina’s interest, bias and prejudice, and of her prior
inconsistent statements.
When the trial resumed, the government called
Marina in its rebuttal case and published four recorded
conversations between her and her husband. During
questioning, Marina acknowledged that she had met
with Vasquez’s lawyer several times before August 20,
No. 09-4056 13
2009 (the only meeting she mentioned in her direct testi-
mony). She also admitted that she understood that
Vasquez’s lawyer could get Perez a lower sentence and
that the lawyer wanted Perez to enter a plea and avoid
implicating Vasquez. Defense counsel’s objection to Ma-
rina’s testimony was overruled. And then the MCC
recordings came in. They included this exchange:
Marina: So what’d Beau [Vasquez’s lawyer] tell
him [Vasquez]? What did Beau tell
him?
Perez: A blind plea would be good, then he
can guarantee this and that. You know
what I mean? Just certain things, you
know? I got to explain to you.
Marina: He’s telling him about a blind plea
also?
Perez: Yeah, he is. I gotta explain to you. You
know what I mean. He says, if you
want, have his wife talk to me, this or
that. I have to explain to you tomor-
row.
The jury also heard Marina tell her husband that
Vasquez’s lawyer also said “everybody is going to lose”
if they go to trial.
Vasquez argues that the judge abused his discretion in
allowing the government to recall Marina during its
rebuttal case solely for the purpose of impeachment. He
is correct that “a party may not call a witness for the
14 No. 09-4056
sole purpose of impeaching him.” United States v. Giles,
246 F.3d 966, 974 (7th Cir. 2001). But Rule 611 gives the
district court authority to “exercise reasonable control
over the mode and order of interrogating witnesses and
presenting evidence so as to . . . make the interrogation
and presentation effective for the ascertainment of the
truth.” Fed R. Evid. 611. Furthermore, the judge has “broad
discretion to determine whether the government’s evi-
dence [falls] within the proper scope of rebuttal.” United
States v. Liefer, 778 F.2d 1236, 1249 n.11 (7th Cir. 1985)
(no error when court allowed government to recall two
defense witnesses as government rebuttal witnesses).
Here, the government recalled Marina after it dis-
covered the recorded conversations because it believed
that they proved she was biased. Vasquez argues that
the judge abused his discretion in allowing the govern-
ment to recall Marina because it had an opportunity
to cross-examine her previously. But there is no
authority for the odd proposition that allowing a party
to recall a witness based on new information is an
abuse of discretion. The government sought to intro-
duce evidence that one of Vasquez’s main witnesses
was biased. The judge did not abuse his discretion in
allowing the government to recall Marina for this purpose.
Second, Vasquez argues that the MCC recordings were
inadmissable hearsay. Extrinsic evidence of a witness’
bias, however, is admissible to impeach that witness and
is never a collateral issue. United States v. Lindemann,
85 F.3d 1232, 1243 (7th Cir. 1996). In the recordings,
Marina says she talked with Vasquez’s counsel several
No. 09-4056 15
times about the future of both Vasquez and her
husband, and that she believed counsel could help her
husband get a lower sentence. The government offered
the recordings to prove that Marina had an incentive to
lie—to get her husband a lower sentence. Moreover, when
the government questioned Marina about the calls, her
answer supported the government’s theory:
Government: And you thought that the defendant’s
attorney was recommending that
your husband enter a plea where he
did not admit the role of Alexander
Vasquez, isn’t that right?
Marina Perez: Where [Perez] did not admit, yes, be-
cause [Vasquez] is going to trial.
Accordingly, Marina’s testimony and the MCC re-
cordings were admissible as extrinsic evidence to
show Marina’s bias and interest in trying to get her
husband a lower sentence.
The recordings are also admissible as prior inconsistent
statements. Vasquez argues that prior inconsistent state-
ments must be “in fact inconsistent” under Federal Rule
of Evidence 613. United States v. Crovedi, 467 F.2d 1032,
1037 (7th Cir. 1972). But “two statements need not be
diametrically opposed to be inconsistent.” United States v.
Jones, 808 F.2d 561, 568 (7th Cir. 1986). Here, the govern-
ment argued that Marina’s statements to her hus-
band—that he and Vasquez were in trouble and likely to
be convicted—is arguably inconsistent with her story
that it was her idea that Vasquez took the Bonneville on
the day of the deal. While there may well be other ways
16 No. 09-4056
to look at this situation, we do not believe that the
judge abused his discretion in permitting her to be ques-
tioned on the point.
The admission into evidence of the MCC recordings
themselves, however, is a horse of a different color. The
government argues that the judge did not err because it
never sought to admit the recordings for their truth.
But the government’s argument ignores the fact that
the judge said, without question, that “[w]ith respect to
interest, bias, and prejudice . . . if any of these statements
can be interpreted as such to indicate an interest, bias or
prejudice, they would go in for their truth.” (emphasis
added). Vasquez is correct—on this point, the judge
made the wrong call. But Vasquez gets no traction on
this point if the error in admitting the MCC recordings
for their truth was harmless. See United States v. Olano,
507 U.S. 725, 734 (1993). “The test for harmless error is
whether, in the mind of the average juror, the prosecu-
tion’s case would have been ‘significantly less persuasive’
had the improper evidence been excluded.” United States
v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007). On appeal,
the burden lies on the government to prove that a rea-
sonable jury would have reached the same verdict
without the challenged evidence. United States v.
Williams, 493 F.3d 763, 766 (7th Cir. 2007).
Looking at the evidence as a whole, although the issue
is close, we believe that the error was harmless. What
was the evidence? We start with Vasquez’s flight as
possible evidence of guilt. While we agree with our
dissenting colleague that flight evidence must be viewed
No. 09-4056 17
with caution, United States v. Robinson, 161 F.3d 463, 469
(7th Cir. 1998), we think it’s important to note that there
are degrees of flight. A defendant walking down a street
who runs into a yard and then into a house after he
hears an officer say, “Stop, police” is one thing. The flight
here goes far beyond that. If there were degrees of flight,
what happened here would be flight in the first degree.
How else do you describe throwing the Bonneville into
reverse, endangering officers (recall that Agent Chupik,
with gun drawn, had to jump out of the way), hitting
two police squad cars, and gunning it the wrong way
into a roadway from the parking lot, ditching the car a
few moments later and trying to escape by running
through the kitchen and out the back door of a McDon-
ald’s?
Add to that, we have the cell phone logs showing
several Perez\Vasquez contacts leading up to the aborted
deal and Vasquez saying to Cruz “tell him we got the
money here.” And then there’s the striking similarity
between this caper and the one (also with Perez) that
lead to Vasquez’s drug conviction in 2002. The $23,000
in cash found in the hidden compartment of the
Bonneville (recall $15,000 was hidden in the car during
the 2002 deal) puts a little frosting on the cake. This
evidence, we believe, would have moved the jury to
convict Vasquez without a nudge from anything it
heard in the government’s rebuttal case.
For these reasons, the judgment of the district court
is A FFIRMED.
18 No. 09-4056
H AMILTON, Circuit Judge, dissenting. I respectfully
dissent. I agree with my colleagues that the district
court did not abuse its discretion by allowing evidence
of Vasquez’s 2002 conviction, by allowing evidence
found in the search of the automobile, or by limiting the
cross-examination of Agent Chupik. I also agree that
the district court’s error in preventing the defendant
from refreshing Agent Chupik’s recollection was harm-
less. However, I cannot agree that the MCC tapes were ad-
missible or that the district court’s errors in admitting
the MCC tapes were harmless. I would reverse the con-
viction and remand for a new trial.
Marina Perez’s second visit to the witness stand in
the government’s rebuttal case, to explore a phantom
inconsistency and to admit erroneously the MCC tapes,
caused unfair prejudice to the defendant. The jury heard
evidence that the defendant’s lawyer had advised him
to plead guilty and had said that if the three defendants
went to trial, “everyone is going to lose.” That evidence
had no genuine probative value, and it is difficult to
imagine more prejudicial evidence. Even if a limiting
instruction telling the jury that such damaging evidence
should not be considered for the truth of the matters
asserted could have been effective, which I doubt, no
instruction was given. The district court admitted the
rebuttal evidence as proof of the truth of the matters
asserted in the taped MCC telephone calls, which my
colleagues and I all agree was an error.
The whole episode made for a fairly dramatic conclu-
sion for the trial. The defense case concluded on a Thurs-
No. 09-4056 19
day, and the trial recessed for the weekend. On Sunday,
the government filed an emergency motion for a con-
tinuance to prepare a rebuttal case using the MCC tapes
of Marina Perez’s conversations with her husband. On
Monday, the court allowed the delay and sent the jury
home. Mrs. Perez was called to testify again on Tuesday.
In her testimony, she admitted the key legitimate point
that the government was entitled to make: that she ex-
pected or at least hoped that Vasquez’s lawyer could
help her husband receive a lighter sentence. But the gov-
ernment’s rebuttal did not stop there. After Mrs. Perez
testified, the government played the tapes through
another witness. On Wednesday, after further drama,
the case was given to the jury.1 Mrs. Perez’s testimony
and the government’s attempted impeachment figured
prominently in the government’s closing argument to
the jury. Then, after the jury had heard that Vasquez’s
attorney had told him to take a plea and that he was
going to lose at trial, that same attorney rose, with his
credibility destroyed, to give closing argument on
Vasquez’s behalf.
One theory for questioning Mrs. Perez about the MCC
tapes and then admitting the tapes was that they were
1
The further drama included the government threatening
Vasquez’s lawyer with investigation and prosecution, Tr. 571,
and the court holding Joel Perez in contempt of court because
he refused to testify and telling him that he faced life in
prison if he continued to refuse. Tr. 578-79. After that finding
and threat, the government said: “I don’t know if we need
Mr. Perez still or not.” Tr. 579. He did not testify.
20 No. 09-4056
prior statements by Mrs. Perez that were inconsistent
with her trial testimony for the defense. But inconsistent
with what? Mrs. Perez testified that Vasquez drove to
the site of the drug meeting because she asked him to
pick up her husband with the Perez’s car. Nothing in
the MCC tapes is inconsistent with that testimony. The
government’s theory was that Mrs. Perez’s belief that
Vasquez would be convicted was inconsistent with her
testimony that it was her fault that Vasquez happened
upon the scene of the transaction. See Gov’t Br. 18. The
theory seems to be that if Mrs. Perez’s trial testimony
were honest, she necessarily would have believed that
as long as she testified truthfully, the jury would unerr-
ingly find Vasquez not guilty. Because she was very
worried that Vasquez would be convicted, goes the
theory, the jury should conclude that she lied in her
trial testimony.
That theory of the supposed inconsistency makes
sense only if we assume that, if Mrs. Perez was telling the
truth, she also must have had an extraordinary and
even naive confidence in the infallibility of juries in
telling the difference between true and false testimony.
Any citizen who has followed recent news of exonera-
tions of innocent but convicted defendants would be
entitled to worry. One can be a great believer in the
wisdom of juries, as I am, without assuming they are
infallible. Let’s assume for purposes of argument that Mrs.
Perez’s testimony about asking Vasquez to drive the
Perez’s car to pick up her husband was true. Even so,
anyone as familiar as she was with the evidence against
both her husband and Vasquez—who were then both in
No. 09-4056 21
the federal lock-up under federal indictment—could
reasonably worry that she might not be believed. If a
witness’s expression of the view that a trial might come out
the wrong way can be treated as inconsistent with the
witness’s testimony for the “right” result, we will see more
cases with attempted impeachment like this.
I recognize that a prior statement need not be “dia-
metrically opposed” with a witness’s testimony to be
inconsistent, but genuine inconsistency is still neces-
sary. See United States v. Hale, 422 U.S. 171, 176 (1975);
United States v. Jones, 808 F.2d 561, 568 (7th Cir. 1986);
accord, United States v. Cody, 114 F.3d 772, 776-77 (8th Cir.
1997). The supposed inconsistency here was non-existent.
It was an abuse of discretion to admit the evidence on
that theory.2
The government’s bias theory also does not justify
admission of the MCC tapes. Evidence of a witness’s
bias is always relevant, of course. See, e.g., United States v.
Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996). But the
first problem here is that before the MCC tapes were
2
My colleagues also suggest that Mrs. Perez failed to disclose
several meetings with Vasquez’s lawyer when she testified in
the defense case. Slip op. at 12-13. She testified about the only
meeting she was asked about. Tr. 419. The fact that she had
other meetings, which she was not asked about, was not
inconsistent with her testimony. A witness should not be
impeached for having failed to volunteer information not
sought by the questioner. In fact, in a criminal trial, volunteered
information often poses a greater danger to the fairness of
the trial than omissions do.
22 No. 09-4056
admitted, Mrs. Perez had already admitted the asserted
bias: she hoped that Vasquez’s lawyer would help her
husband receive a lower sentence. There was no need
for further extrinsic evidence of the point, especially
where that extrinsic evidence posed all the problems
that the MCC tapes did here. In light of Mrs. Perez’s
candid (if perhaps naive) admission, the tapes provided
no or little additional probative value, but caused sub-
stantial unfair prejudice to defendant Vasquez.
Neither theory of admission—prior inconsistent state-
ments or evidence of bias—supported admission of the
MCC tapes at all. My colleagues and I agree at least,
however, that the district court erred in admitting the
MCC tapes for the truth of the matters asserted by the
speakers. Bias is not an exception to the hearsay rule,
and even genuinely inconsistent statements are not ad-
missible for the truth of the matters asserted. In this
case, the tapes included hearsay, double hearsay,
and even triple hearsay. In the most extraordinary and
prejudicial example, the jury heard Joel Perez tell
Marina Perez that Vasquez had told him that Vasquez’s
lawyer had told Vasquez that he should plead guilty:
Marina: So what’d Beau [Vasquez’s lawyer] tell
him [Vasquez]? What did Beau tell
him?
Joel: A blind plea would be good, then he
can guarantee this and that. You know
what I mean? Just certain things, you
know? I got to explain to you.
Marina: He’s telling him about a blind plea
also?
No. 09-4056 23
Joel: Yeah, he is. I gotta explain to you. You
know what I mean. He says, if you
want, have his wife talk to me, this or
that. I have to explain to you tomor-
row.
Supp. App. 13.3 The jury also heard Marina Perez tell her
husband that Vasquez’s lawyer (who was his lead trial
attorney) had told her that if the three defendants went
to trial, “everybody is going to lose.” Supp. App. 11. The
government highlighted that comment in its questioning
of Mrs. Perez. Tr. 528-29. The erroneous admission of
this highly prejudicial hearsay and triple hearsay for the
truth of the matters asserted should require a new trial.
My colleagues conclude, however, that the erroneous
treatment of the MCC tapes evidence was harmless
because the government had so much other evidence
against Vasquez. I respectfully disagree. The issue is
whether the reviewing court is “convinced that the jury
would have convicted even absent the error.” United
States v. Simmons, 599 F.3d 777, 780 (7th Cir. 2010) (holding
3
The government argues for a different interpretation, that
Joel Perez was telling Marina that Vasquez’s lawyer had told
Joel that Joel should enter a blind guilty plea (i.e., a plea with-
out an agreement). In context, the better reading, and certainly
a permissible interpretation available to the jury, is that both
Joel’s lawyer and Vasquez’s lawyer were telling their respec-
tive clients that they should enter blind guilty pleas. That
explains Marina’s “also,” since Joel’s lawyer was advising
him at the time to enter a blind plea.
24 No. 09-4056
that arguable errors in admitting evidence were
harmless in light of defendant’s own admissions about
his involvement in crime). The standard calls upon an
appellate court not to “become in effect a second jury,”
see Neder v. United States, 527 U.S. 1, 19 (1999), but to
determine “whether it appears ‘beyond a reasonable
doubt that the error complained of did not contribute
to the verdict obtained.’ ” Id. at 15, quoting Chapman v.
California, 386 U.S. 18, 24 (1967). Accord, e.g., United States
v. McGowan, 590 F.3d 446, 456 n.1 (7th Cir. 2009); United
States v. Williams, 493 F.3d 763, 766 (7th Cir. 2007).
The standard is not easy to satisfy, and four factors here
lead me to conclude this error was not harmless: the
modest strength of the rest of the government’s case
against Vasquez, the prejudicial character of the
evidence that was admitted erroneously, the fact that
the jury acquitted Vasquez of one of two charges, and
the importance that the government itself attributed to
its flawed rebuttal evidence.
Looking first at the strength of the rest of the case, we
can all agree that the government had a solid case
against both Perez and Cruz. Both were recorded making
arrangements for the cocaine purchase, and both
showed up at the agreed time and place. The case
against Vasquez was not as clear. Vasquez was not re-
corded at all. He was not even mentioned in any of
the recorded calls. The agents, the confidential informant,
and even Cruz were expecting only a single customer
to show up for the meeting. They knew nothing about
Vasquez until they saw him arrive in the Perez’s car at
No. 09-4056 25
the nearby Denny’s parking lot, from where he could
see Perez and Cruz. He never got out of the car, and
the agents did not hear him talk with anyone.
On the other hand, of course, Vasquez arrived at the
scene of a planned drug meeting driving a car carrying
$23,000 in a hidden compartment. He fled in the car,
dramatically and dangerously, as the agents tried to
make the arrests. He had previously been convicted of
a drug deal with Perez using a car with a similar
hidden compartment. And Cruz testified that he heard
Vasquez tell Perez on the telephone: “tell him we got the
money here.”
Let’s put aside the flight evidence for a moment and
focus on the other evidence. Marina Perez’s testimony
provided an innocent explanation for Vasquez’s presence
on the scene in the car with the hidden money. She said
she planned to pick up her husband but had an argu-
ment with him. She asked Vasquez to pick him up and
to take the Perez’s car because his own was parked in
by that car. The credibility of her testimony is at least
debatable. And Cruz, the co-defendant who set up the
meeting with the informant, testified that Perez was not
even supposed to bring any money to the meeting, Tr. 237-
38, which is at least consistent with her testimony.
Cruz’s testimony about Vasquez’s statement, “tell him
we got the money here,” was important. Apart from the
flight evidence, it was the strongest evidence against
Vasquez, and it was actually inconsistent with Marina
Perez’s testimony. My colleagues treat the statement
as an undisputed fact, but that is a mistake when we
26 No. 09-4056
are evaluating whether an error was harmless. The credi-
bility of that key bit of testimony was subject to strong
attacks, far stronger than the government’s attacks on
Mrs. Perez’s testimony. Cruz was a cooperating de-
fendant with powerful incentives to help the govern-
ment prove its case against Vasquez, the only one of the
three who went to trial. On the witness stand, Cruz
admitted having lied to the government about Vasquez
and several other subjects. Tr. 250-52, 254-56, 268-72, 289.
Most important, Cruz admitted that he first told the
government about Vasquez’s supposed “money” com-
ment less than one week before trial. Tr. 263-64. By
that time, Cruz had already been debriefed by the gov-
ernment several times, all without ever mentioning
the single most damaging part of his testimony
against Vasquez. On this record, the jury could easily
have treated the “money” comment as a late and false
invention by Cruz. The Rule 404(b) evidence—the
prior conviction—was strong evidence, but it remained
404(b) evidence that could not make the case by itself.
Without the flight evidence and the MCC tapes errone-
ously admitted for their truth, then, the government
had evidence that was legally sufficient to convict
Vasquez, but the case was far from a slam-dunk. The
dramatic evidence of the dangerous flight strengthened
the case substantially and makes it easier for my col-
leagues to describe the district court’s error as harmless.
But the flight evidence cannot carry that much weight,
in my view. The Supreme Court and we have re-
peatedly cautioned against too much reliance on flight
No. 09-4056 27
as evidence of guilt for the crime charged because there
are so many links in the chain of inferences:
We have long adhered to the Supreme Court’s caution-
ary language urging courts to be wary of the proba-
tive value of flight evidence. See Wong Sun v. United
States, 371 U.S. 471, 483 n.10 (1963) (“[W]e have con-
sistently doubted the probative value in criminal
trials of evidence that the accused fled the scene of
an actual or supposed crime.”). While we allow evi-
dence of flight to be presented, courts must engage
in careful deliberation when considering its admis-
sion. Determination of the probative value of flight
as evidence of a defendant’s guilt depends on the
degree of confidence with which four inferences can
be drawn: (1) from behavior to flight; (2) from flight
to consciousness of guilt; (3) from consciousness
of guilt to consciousness of guilt concerning the
crime charged; and (4) from consciousness of guilt
concerning the crime charged to actual guilt of the
crime charged. See United States v. Levine, 5 F.3d 1100,
1107 (7th Cir. 1993); see also United States v. Jackson,
572 F.2d 636, 639 (7th Cir. 1978) (adopting this
analysis as set forth in United States v. Myers, 550
F.2d 1036, 1049 (5th Cir. 1977)).
United States v. Robinson, 161 F.3d 463, 469 (7th Cir. 1998).
If we follow that cautious approach to flight evidence,
we should not rely on it to save the jury’s verdict from
the error we all agree was made in admitting the
highly prejudicial evidence from the MCC tapes.
28 No. 09-4056
We must also consider the prejudicial effect of the
improper evidence. The evidence from the MCC tapes,
admitted here erroneously for their truth and with no
true probative value, was just about as prejudicial as one
could expect to encounter in a trial. The jury heard
that Vasquez’s lawyer—the man who would soon make
a closing argument asking them to find reasonable
doubt in the government’s case—had told Vasquez that
he should plead guilty and had said that if he and his co-
defendants went to trial, “everyone is going to lose.”
A juror who heard and believed that evidence would
surely discount anything she heard from that lawyer.
In terms of prejudice, these harpoons are com-
parable to evidence of a defendant’s own withdrawn
guilty plea. Such a plea is virtually never admissible
because of its powerful force. See Fed. R. Evid. 410(1);
Kercheval v. United States, 274 U.S. 220, 223-24 (1927).
We also have strong indications from both the jury
and the government itself that the erroneous admis-
sion of the MCC tapes was not harmless. Even with the
prejudicial and erroneous evidence, the jury still found
Vasquez not guilty on the charge of attempted possession
with intent to distribute. That verdict is hard to
reconcile with the jury’s conviction on the conspiracy
charge, and the split verdict certainly has the whiff of a
compromise verdict in a close case. Such verdicts are
permissible in criminal cases, of course, but when deter-
mining whether, beyond a reasonable doubt, a conceded
error was harmless, we should not ignore that strong
signal that the jury viewed the case as a close one, even
No. 09-4056 29
with the evidence of flight and the improper rebuttal
evidence.
The government also showed how important it
believed the improper rebuttal evidence was by its extra-
ordinary efforts to obtain its admission. The trial seemed
nearly over when the government filed its emergency
Sunday motion for a continuance to enable it to prepare
this rebuttal case. The events of the next several days,
including especially the government’s emphasis on the
improper evidence in its closing argument, showed that
the government believed that Mrs. Perez had seriously
weakened its case and that the improper rebuttal
evidence strengthened its case considerably. My col-
leagues disagree with that assessment, but in applying
the harmless error standard, we should give more weight
to the views of the party who sought admission of the
improper evidence, as shown by that party’s conduct
at trial.
I am not trying to suggest that Vasquez is actually
innocent or that I necessarily believe Marina Perez’s
testimony about why he was in the car at the scene of
the bust. Those are questions for the jury. But in light of the
closeness of the case, the highly prejudicial nature of the
improper evidence, the jury’s split verdict, and the gov-
ernment’s emphasis on the improper evidence, I am not
convinced beyond a reasonable doubt that the jury
would have convicted Vasquez in the absence of the
improper and highly prejudicial MCC tape evidence.
I would vacate the judgment and order a new trial.
3-14-11