In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1705
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A DALBERTO S ANTIAGO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 784-1—Samuel Der-Yeghiayan, Judge.
A RGUED A PRIL 6, 2011—D ECIDED JULY 11, 2011
Before F LAUM, E VANS and T INDER, Circuit Judges.
F LAUM, Circuit Judge. A jury convicted Adalberto
Santiago of conspiracy to possess with intent to distribute
and to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and 18 U.S.C. § 2, and of distribution
of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
On each count, the district court sentenced Santiago to
the 240-month mandatory minimum for offenses in-
volving 50 grams or more of a mixture containing cocaine
2 No. 10-1705
base. See 21 U.S.C. § 841(b)(1)(A)(iii). The court ordered
that the sentences run concurrently. Santiago appeals
his conviction on two grounds: that the district court
erroneously admitted gang affiliation evidence under
Federal Rule of Evidence 403, and that the government
presented insufficient evidence to establish that the
substance at issue was “cocaine base” for purposes of
§ 841(b)(1). For the following reasons, we affirm.
I. Background
In 2002, the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) and the Cook County Sheriff’s department were
in the midst of a three-year joint investigation into the
Spanish Cobra street gang in Chicago. ATF case agent
David Gomez coordinated that investigation, which
targeted a number of Spanish Cobra members, in-
cluding Felipe Padilla.
In September of 2002, Agent Gomez directed a confiden-
tial informant known as “Suave,” a former Spanish
Cobra himself, to arrange a drug deal with Padilla.
During that transaction, which occurred on September 26,
2002, Agent Gomez posed as a suburban drug dealer
named “Loquito.” The original plan, as negotiated by
Suave and Padilla, was for Agent Gomez and Suave to
purchase four and a half ounces of crack cocaine from
Padilla at Padilla’s home. But, on the day of the deal,
Padilla changed the location to a K-Mart parking lot,
explaining that “Sabu” had the drugs there.
It is undisputed that Santiago’s nickname is Sabu.
At Santiago’s trial, Agent Gomez testified that, as part
No. 10-1705 3
of the Spanish Cobra investigation, he had learned the
identities of various Spanish Cobras by viewing photos
of them and learning their nicknames. Therefore, when
Padilla mentioned Sabu, Agent Gomez understood him
to be referring to Santiago.
Agent Gomez and Suave drove to the K-Mart in Agent
Gomez’s vehicle, which was equipped with a camera
and microphones. Numerous audio and video re-
cordings from those devices were admitted at Santiago’s
trial. Padilla met Agent Gomez and Suave in the
parking lot in his own vehicle, and told them that Sabu
would be driving a green van. About an hour later,
Agent Gomez observed a green van drive into the
parking lot. He testified that, despite the fact that the
van parked several car lengths away, he recognized the
driver as Santiago.
Padilla got out of his vehicle and went to the window
of the green van to speak with the driver. Padilla then
walked over to Agent Gomez’s vehicle, and spoke with
Agent Gomez and Suave. That conversation was
recorded by the microphones in Agent Gomez’s vehicle,
and a recording of it was played at trial. During the
conversation, Padilla told Agent Gomez and Suave
that they needed either to accompany Sabu to another
location to get the drugs, or to give Sabu the money
up front and he would go get the drugs. When Agent
Gomez rejected those options, Padilla said “ya know he
ain’t gonna burn me man, right? That’s Cobra folk. How
the fuck you gonna burn Cobra folk?” At the trial, Agent
Gomez explained that he understood Padilla to be
4 No. 10-1705
saying that members of the Spanish Cobras would not
rip each other off, and therefore they could trust Sabu.
Despite that reassurance, Agent Gomez refused. Eventu-
ally, the green van left to get the drugs. The van returned
about 15 minutes later, and again, according to his testi-
mony, Agent Gomez was able to identify the driver
as Santiago.
Padilla went over to the green van and exchanged $2,750
in cash for the drugs. Agent Gomez, Suave, and Sabu
remained in their respective vehicles. Therefore, no
images or recordings of Sabu were captured by the
devices in Agent Gomez’s vehicle. When Padilla
returned to Agent Gomez’s vehicle, he handed a package
to Suave and said that the drugs were “cooked, fresh off
the lamb.” Agent Gomez testified that he understood
Padilla to be saying that the substance was crack cocaine.
Agent Gomez and Suave then drove away. At that
point, Suave said that the green van was a Chevrolet
Express, and Agent Gomez agreed. Suave also said he
had observed the van’s license plate number. Agents later
obtained certified vehicle records indicating that that
license plate belonged to a blue 1996 GMC Savana, which
was registered to Santiago and his girlfriend, Mayra
Hernandez. Agent Gomez testified that the 1996 GMC
Savana and the 1996 Chevrolet Express have very
similar body types.
About two years later, on September 2, 2004, Santiago
was charged in a two-count indictment for his alleged
involvement in the September 26, 2002 transaction. Count
One charged Santiago with conspiracy to possess with
No. 10-1705 5
intent to distribute and to distribute 121.3 grams of mix-
tures containing cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and 18 U.S.C. § 2. Count Two
charged him with distribution of 121.3 grams of mixtures
containing cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). On October 27, 2004, Santiago was charged
in a superseding indictment, which added Padilla to
each count.
In May 2006, the government discovered that the
drugs from the September 26, 2002 transaction had
been destroyed. Santiago filed a motion to dismiss the
indictment based on the unavailability of the drug evi-
dence, which the district court denied. On January 8,
2007, Santiago filed a motion in limine to bar the intro-
duction of evidence concerning his gang affiliation,
arguing that such evidence was not relevant under
Federal Rule of Evidence 402, and was unduly prejudicial
under Rule 403. The district court denied that motion
as well.
Santiago’s four-day jury trial began on January 22, 2007.
During its opening statement, the government twice
referenced the ATF’s investigation of the Spanish Cobra
gang. The government called Agent Gomez as its first
witness. As described above, Agent Gomez made
several references to the Spanish Cobras during his testi-
mony. Those comments related to the Spanish Cobra
investigation generally, his ability to identify Santiago
as the driver of the green van, and Padilla’s statement
about “Cobra folk.” Two of the government’s remaining
three witnesses—Investigator Jose Rosario and Sergeant
6 No. 10-1705
Marlon Parks, both of the Cook County Sheriff’s Office—
mentioned the Spanish Cobras once, each to explain that
he was involved in the joint investigation in 2002.
The government’s final witness was former Cook
County Sheriff’s Police Department chemist Nicole
Wenzel, who had analyzed the drug evidence recovered
on September 26, 2002, before it was destroyed. She
testified that she performed two chemical tests that
indicated that the narcotics were cocaine base.
At trial, phone records from Padilla’s cell phone were
admitted into evidence. Those records showed a number
of calls between Padilla’s phone and a cell phone
registered to Santiago’s girlfriend, which occurred on
September 26, 2002, and the few days prior to that date.
The records showed that Padilla called the girlfriend’s
cell phone shortly after he spoke with Suave to arrange
the September 26th deal. They also showed nine calls
between the two phones during the transaction on the
26th. Agent Gomez testified that he observed Padilla
make numerous calls on the date of the transaction,
which he understood at the time to be to Sabu.
During its closing argument, the government told the
jury, “do not convict, let me repeat that, do not convict
Adalberto Santiago because he is a member of the
Spanish Cobras.” The prosecutor went on to say that
jurors could use the gang evidence “to understand the
relationship between Santiago, Padilla and the CI,” in
considering Padilla’s reference to “Cobra folk,” and to
“assess Special Agent Gomez’s ability to identify Sabu.”
In the rebuttal portion of its closing, the government
No. 10-1705 7
made additional references to gangs, referring to Padilla
and Santiago as “gang members” on two occasions, and
referencing the gang twice in relation to the larger
joint investigation.
The district court included a limiting instruction re-
garding the use of the gang evidence in the jury instruc-
tions. The instruction read: “During the trial, references
were made to gangs or gang membership. Such
evidence does not mean that the defendant committed
the offenses charged in this case.” The government and
Santiago agreed to that instruction. The jury returned
a verdict of guilty on both counts, as well as a special
verdict finding that the narcotics in the case were
50 grams or more of mixtures containing cocaine base
in the form of “crack” cocaine.
Santiago filed a motion for acquittal based on insuf-
ficient evidence and a motion for a new trial based on
the admission of gang evidence. The district court denied
each motion. On March 11, 2010, the district court sen-
tenced Santiago to the mandatory minimum sentence
of 240 months’ imprisonment on each count to run con-
currently.
II. Discussion
A. Admission of Gang References
Santiago’s primary argument on appeal is that the
district court erred in admitting evidence concerning
the Spanish Cobras and his membership in that gang.
According to Santiago, admission of the gang evidence
8 No. 10-1705
was improper under Federal Rule of Evidence 403
because its minimal probative value was substantially
outweighed by its prejudicial effect. In light of “the trial
judge’s first-hand exposure to the witnesses and
the evidence as a whole, and because of the judge’s famil-
iarity with the case and ability to gauge the impact of
the evidence in the context of the entire proceeding,”
we review the district court’s decision to admit the evi-
dence for abuse of discretion. United States v. Alviar,
573 F.3d 526, 536 (7th Cir. 2009) (citation omitted).
We recognize that a jury is likely to associate gangs
with “criminal activity and deviant behavior,” such that
the admission of gang evidence raises the specter of
guilt by association or a verdict influenced by emotion.
United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996). In
recognition of the prejudicial nature of gang affiliation
evidence, “we examine the care and thoroughness
with which a district judge considered the admission
or exclusion of gang-involvement evidence.” United States
v. Westbrook, 125 F.3d 996, 1007 (7th Cir. 1997). But the
risk of prejudice associated with gang evidence does not
render it automatically inadmissible. In numerous cases,
we have upheld the admission of gang evidence as
more probative than prejudicial. See United States v.
Montgomery, 390 F.3d 1013, 1018 (7th Cir. 2004) (admission
of gang evidence proper to help establish motive);
United States v. King, 627 F.3d 641, 649 (7th Cir. 2010)
(admission of gang-related evidence is appropriate
“to demonstrate the existence of a joint venture or con-
spiracy and a relationship among its members”) (citation
No. 10-1705 9
omitted); Clark v. O’Leary, 852 F.2d 999 (7th Cir. 1988)
(witness’ membership in rival gang admissible for pur-
poses of impeachment to show bias); United States ex rel.
Garcia v. Lane, 698 F.2d 900 (7th Cir. 1983) (evidence
of defendant’s gang affiliation admissible to explain
earlier inconsistent statement of witness due to fear of
retaliation).
Evidence of Santiago, Padilla, and Suave’s membership
in the Spanish Cobras was necessary to help the jury
make sense of Padilla’s reference to “Cobra folk.” Without
an explanation of what “Cobra” meant, the jury would
not have been able to understand the exchange
between Padilla and Agent Gomez after the green van’s
first arrival in the parking lot. And omitting the re-
cording of that conversation from the trial would have
left the jurors to speculate why the individual in the
green van showed up to a drug deal without the drugs.
Moreover, the “Cobra folk” statement was probative
of the conspiracy charged in Count One. To prove the
conspiracy charge under 21 U.S.C. § 846, the government
was required to demonstrate more than a buyer-seller
relationship between Santiago and Padilla. United States
v. Rivera, 273 F.3d 751, 755 (7th Cir. 2001). It needed to
show an agreement between the two to possess and
distribute the cocaine base. United States v. Suggs, 374
F.3d 508, 518 (7th Cir. 2004). To determine whether a
conspiracy exists, we look to a number of factors,
including the level of mutual trust between the individu-
als. Id. The “Cobra folk” statement revealed Padilla’s
confidence that Sabu would not rip him off, and thus was
10 No. 10-1705
directly probative of the trust between Santiago and
Padilla.1
Reference to Agent Gomez’s involvement in the
larger Spanish Cobras investigation was relevant to his
ability to recognize the name Sabu and identify the
driver of the green van as Santiago.
We recognize that some of the gang references at Santi-
ago’s trial may have been unneeded. In our view, Investi-
1
We do not necessarily agree with the government’s contention
that, apart from the “Cobra folk” comment, gang membership
evidence was essential to proving the conspiracy allegations set
forth in Count One of the indictment. We have explained that
common membership in a group gives rise to only a weak
inference that two people are involved in a given activity where
the group itself is not somehow connected to the activity in
question. United States v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996).
The government did not present any evidence at Santiago’s trial
demonstrating that the Spanish Cobras, as an organization, are
involved in the drug trade, and consequently “the probative
value of the common gang membership in proving . . . a joint
venture [between Santiago and Padilla] was minimal at best.” Id.
at 865. We reiterate that“[c]harging a drug conspiracy that
involves gang members . . . does not give the government carte
blanche to splash gang references throughout the trial.” United
States v. Hardin, 209 F.3d 652, 663 (7th Cir. 2000), overruled on
other grounds by United States v. Nance, 236 F.3d 820 (7th Cir.
2000). But, here, evidence of gang membership was required to
explain Padilla’s comment, which itself was probative of the
charged conspiracy. Therefore, the admission of the evidence
was not error.
No. 10-1705 11
gator Rosario and Sergeant Parks could have avoided
referring to the Spanish Cobras investigation. And the
government’s characterization of Padilla and Santiago
as “gang members” in the rebuttal portion of its closing
argument appears unnecessary. But we do not believe
these references gave rise to “the danger of unfair prej-
udice that must be balanced against probity to determine
the admissibility of evidence under Rule 403.” United
States v. Thomas, 86 F.3d 647, 653 (7th Cir. 1996) (emphasis
in original). The evidence of Santiago and Padilla’s gang
membership “did not substitute for direct evidence
that [they] actually joined the drug distribution conspir-
acy,” and thus any unfair prejudice that might have
resulted was limited. Id. For these reasons, we believe
the district court was within its discretion in con-
cluding that the probative value of the gang evidence
outweighed its prejudicial effect.
Even assuming that a few of the gang references were
more prejudicial than probative, their admission was
harmless. As noted above, evidence that Santiago was
a Spanish Cobra was properly admitted. Therefore, the
jury was going to hear about his gang affiliation. Any
impact of the additional statements regarding the gang
had on the jury would have been very slight. See United
States v. Jung, 473 F.3d 837, 842–43 (7th Cir. 2007) (errone-
ous admission of evidence is harmless “if we are con-
vinced that the error did not influence the jury or only
had very slight effect”). Furthermore, the evidence of
Santiago’s guilt was overwhelming. Agent Gomez
testified that he was able to identify Santiago as the
driver of the green van each time it arrived at the K-Mart
12 No. 10-1705
parking lot. Vehicle records show that Santiago owns a
van similar to the one described by Agent Gomez. And
phone records indicate that Padilla and Santiago (or his
girlfriend) communicated prior to and during the trans-
action. Consequently, we conclude that any error was
harmless. See Jung, 473 F.3d at 843 (erroneous admission
of evidence harmless where evidence of defendant’s
guilt was overwhelming).
B. Sufficiency of Evidence Regarding Drug Type
Santiago also argues that the government presented
insufficient evidence to support the jury’s finding that the
drugs at issue were crack cocaine, as opposed to some
other form of cocaine base.2 He maintains that, as such, he
is not eligible for the ten-year mandatory minimum
sentence set forth in 21 U.S.C. § 841(b)(1)(A)(iii). Santiago
relies on our decision in United States v. Edwards, 397
F.3d 570, 577 (7th Cir. 2005), in which we held that the
phrase “cocaine base” in 21 U.S.C. § 841(b)(1)(A)(iii) refers
only to crack cocaine. However, the Supreme Court
recently disagreed, holding that the term “cocaine base,” as
it is used in § 841(b)(1), “means not just ‘crack cocaine,’ but
cocaine in its chemically basic form.” DePierre v. United
States, __ S.Ct. __, 2011 WL 2224426, at *11 (June 9, 2011).
In light of DePierre, Santiago’s challenge fails.
2
There is no dispute that the drugs were cocaine base, as the
chemical analysis performed by Cook County Sheriff’s
Police Department chemist Nicole Wenzel showed.
No. 10-1705 13
III. Conclusion
For the foregoing reasons, we AFFIRM Santiago’s con-
viction.
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