In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3549
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
N ORA P ENALOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 117-1—Joan Humphrey Lefkow, Judge.
A RGUED O CTOBER 26, 2010—D ECIDED A UGUST 5, 2011
Before P OSNER, F LAUM, and S YKES, Circuit Judges.
S YKES, Circuit Judge. In November 2006 Nora Penaloza
drove from New Jersey to Bedford Park, Illinois, where
she met with a man named “Carlos” in the parking lot of
a motel. “Carlos” loaded three duffel bags containing
packages wrapped in brown tape into Penaloza’s car.
Penaloza then began to drive back to New Jersey. Agents
from the Drug Enforcement Administration (“DEA”)
stopped Penaloza, questioned her about the duffel bags,
2 No. 09-3549
and seized them. Penaloza was indicted for attempting
to possess with intent to distribute over five kilograms
of cocaine in violation of 21 U.S.C. § 841(a)(1).
During Penaloza’s trial, the jury heard the testimony
of Mario Elias, a DEA agent who was undercover as
“Carlos.” Elias explained that his transaction with
Penaloza developed out of an investigation into the
activities of Jorge Gutierrez, a suspected broker for a
Colombian drug-trafficking organization. Elias testified
that in his undercover identity as “Carlos,” he had agreed
to help Gutierrez transport a large shipment of cocaine.
Gutierrez told him to call Penaloza’s phone number to
make arrangements for delivery of part of this shipment.
Over multiple taped phone conversations, Elias and
Penaloza made plans to meet at the motel parking lot
near Chicago where he delivered the three duffel bags
containing sham cocaine to Penaloza. The government
also introduced the testimony of David Brazao, one of
the DEA agents who stopped Penaloza en route to New
Jersey. Brazao testified that Penaloza confessed to the
agents that she understood the duffel bags contained
drugs.
The jury convicted Penaloza, and she was sentenced
to 120 months of imprisonment. Penaloza appeals,
arguing that (1) the district court erred in admitting
Elias’s testimony about her connections to Gutierrez
because it was hearsay and unfairly prejudicial; (2) the
admission of this evidence amounted to a constructive
amendment of the indictment in violation of the Fifth
Amendment; and (3) the district court erred in admitting
No. 09-3549 3
Agent Brazao’s testimony about her confession because
it lacked foundation and was unfairly prejudicial. Each
of these arguments lacks merit, and we affirm.
I. Background
During the course of its investigation into Jorge
Gutierrez, also known as “Elivardo,” the DEA obtained
the assistance of a confidential informant (“CI”) who
worked for Gutierrez. The CI introduced Agent Elias to
Gutierrez as “Carlos,” a narcotics transporter who could
help them make international deliveries of cocaine. In
early 2006 Gutierrez arranged for the CI and “Carlos” to
transport 200 kilograms of cocaine from Colombia to Spain.
Unbeknownst to Gutierrez, the DEA, in conjunction with
Spanish law-enforcement authorities, intercepted and
seized this shipment of cocaine. Elias contacted Gutierrez
and told him a cover story so the DEA could continue
its investigation. Elias told Gutierrez that when he
arrived in Spain to make the delivery, the buyers were
unable to pay for the cocaine and asked for credit. Elias
said he released 130 kilograms of the cocaine to the
buyers and held the remaining 70 kilograms as collateral
to ensure that they followed through with payment.
Elias later told Gutierrez that he was bringing the 70
kilograms back to the United States and would hold it
for Gutierrez to find another buyer.
Gutierrez eventually found a buyer. In early Novem-
ber 2006, the CI gave Elias a phone number and told him
to call “Chavelo” to negotiate delivery of the 70 kilograms
4 No. 09-3549
of cocaine. Separately, Gutierrez contacted Elias and also
told him to call “Chavelo” at the same number. Elias
called the number but no one picked up. About 15 minutes
later, a woman called Elias back from the number. Elias
did not know the identity of the speaker; he understood
“Chavelo” to be a code name or nickname, and the
caller did not identify herself by name. After numerous
subsequent conversations and an eventual in-person
meeting to deliver the cocaine, however, Elias identified
Penaloza as the person in all the calls.
From November 6 to November 9, 2006, Elias taped nine
phone conversations with Penaloza during which they
tersely discussed the planned transaction using code
words. All the conversations were in Spanish. During
Elias’s first phone conversation with Penaloza, he intro-
duced himself as “Carlos” and told her he was “calling on
behalf of Elivardo.” Penaloza responded, “Ah, let’s see,
what can I say, I would . . . I would have to call you back.
Or if it’s not me, it will be my cousin Leo.” Later that
evening, Penaloza called Elias again. She said she had
spoken with her “cousin” and “he told me if you were
ready . . . that I’m the one who’s picking up the keys.” Elias
understood “keys”—“llaves” in Spanish—to be a street
term for kilograms. Elias then asked Penaloza whether
she was “bringing a car that’s ready.” Penaloza
answered, “[A]h, let’s see . . . I’d say no. Not really.” Elias
responded, “[T]he only thing that I said to Elivardo, was,
that I needed for you to bring a car that was ready . . . so
that I could go and take it, load the family and give it
to you . . . .” According to the trial testimony of an
FBI narcotics investigator, “family” is a code word for a
No. 09-3549 5
shipment of cocaine. In a conversation the following
day, Penaloza stated, “[T]he only thing I have to do is
go pick up the keys . . . . I don’t have to take anything
else?” Elias understood her to be referring to purchase
money for the cocaine and answered “no,” but added,
“I need a car that’s set up,” by which he meant a car
with a hidden compartment. Penaloza answered, “I have
a Pontiac but it’s little . . . . [Y]ou need a big one, right?”
Elias responded, “[D]oes it have some place . . . to hide
that, or not?” Penaloza replied, “No,” and Elias stated,
“Well, it can be put in the back . . . in the trunk,
then . . . there’s seventy.” A few hours later, Penaloza
again called Elias, and Elias asked her if the car had a
“clavo,” a Spanish slang term for a hidden compartment.
Penaloza and Elias planned to meet on the morning
of November 9, 2006, in the parking lot of the Sleep Inn
motel in Bedford Park, Illinois, near Chicago. When
they met, Penaloza said to Elias, “Leo told me to . . . ask
you if everything was OK[,] well-packed and the ap-
pearance good and everything.” Elias responded, “Every-
thing’s fine. I had to put it . . . double in each package . . .
so it wouldn’t be . . . so bulky.” Penaloza then gave
Elias the keys to her SUV, which Elias drove to another
location to load with three black duffel bags containing
sham cocaine wrapped in brown tape. Elias then drove
the car back to the motel parking lot where he explained
to Penaloza, “The packages are one and a half each
one, because . . . of the way we had to send them over
here.” The tape recording of this conversation captured
a zipping sound from the duffel bags as Elias explained
how the cocaine was packaged, and surveillance agents
6 No. 09-3549
photographed Elias and Penaloza while they stood at
the SUV. To conclude the transaction, Elias called
Gutierrez and handed the phone to Penaloza. He asked
Penaloza to “[t]ell him I took good care of you so he
won’t bother me.” Penaloza took the phone and said,
“Carlos was very proper, OK? He took care of me. He
was very worried about me.”
Penaloza then began to drive back to New Jersey, and
DEA agents followed her for about 45 minutes before
stopping her in Indiana. The agents read Penaloza her
Miranda warnings and then asked her about the cocaine
in her car. According to the police report summarizing
the stop, Penaloza initially said she had traveled to Chi-
cago as a Mary Kay Cosmetics representative, had just
checked out of her hotel, and did not know how the
three duffel bags ended up in her car. On further ques-
tioning, however, Penaloza admitted this was untrue
and told the agents that her cousin had offered her $500
to go to Chicago to retrieve some packages and bring
them back to New Jersey. When asked if she knew
whether the bags in her car contained drugs, Penaloza
said, “Yes.” The agents seized the duffel bags and let
Penaloza return to New Jersey.
A grand jury later indicted Penaloza for attempting
to possess more than five kilograms of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
The government moved in limine to introduce certain
background information about the DEA’s investigation
of Gutierrez. It asked the court to allow the introduc-
tion of evidence that the DEA had been investigating
No. 09-3549 7
Gutierrez; that Elias and Gutierrez had negotiated
the transportation of cocaine to Spain; that Elias told
Gutierrez that the Spanish buyers failed to pay and asked
Gutierrez to find a buyer for the 70 kilograms of cocaine
in the United States; and that Gutierrez subsequently
provided Elias with Penaloza’s phone number to ar-
range for delivery of the 70 kilograms of cocaine. The
government said the purpose of this evidence was to
provide the jury with context about why Elias con-
tacted and ultimately met with Penaloza.
The government also sought to introduce certain state-
ments by Gutierrez inculpating Penaloza, invoking
Rule 801(d)(2)(E) of the Federal Rules of Evidence,
which provides that statements by a defendant’s cocon-
spirator made during the course and in furtherance of
the conspiracy are not inadmissible hearsay. Pursuant to
United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), the
government submitted a written proffer to the dis-
trict court to try to establish the required preliminary
showing that Penaloza and Gutierrez were indeed cocon-
spirators. In the proffer the government reiterated the
same background evidence from its motion in limine
and argued that it showed that Penaloza and Gutierrez
were coconspirators. The government also pointed to
some statements by Gutierrez arguably referring to
Penaloza, as well as Penaloza’s statements on the
phone to Gutierrez after she received the duffel bags
from Elias.
The district court found the Santiago proffer insuf-
ficient to establish a conspiracy existed between Penaloza
8 No. 09-3549
and Gutierrez and barred the government from admitting
Gutierrez’s statements. At the same time, however, the
court granted the government’s motion in limine, per-
mitting it to introduce the background evidence of the
DEA’s investigation of Gutierrez as context for Elias’s
contacts with Penaloza. At trial the government intro-
duced this background through the testimony of Elias,
who described his introduction to Gutierrez in early
2006 and relevant steps in the investigation leading up
to his in-person meeting with Penaloza in November of
that year.
Agent David Brazao also testified for the govern-
ment, describing how he and the other officers stopped
Penaloza en route to New Jersey. Brazao explained that
he was part of the surveillance team that observed the
meeting between Penaloza and Elias on the morning of
November 9, 2006. After the transaction was completed,
Brazao and other officers followed Penaloza’s car on the
highway for about 45 minutes before initiating a traffic
stop near Portage, Indiana. Brazao testified that Penaloza
eventually “came clean with us and said, ‘Yes, I knew
it was drugs’ ” in the duffel bags.
Penaloza testified in her own defense. Her story was
that her brother in Montreal, Canada, asked her to go to
Chicago to pick up some parts and tools for his
auto-repair shop. She said her brother told her that her
cousin Leo knew people in Chicago who would give
her the “llaves,” which she thought referred to the
parts and tools. Penaloza presented a Spanish-language
expert who testified that the most common meaning
No. 09-3549 9
of “llaves” is “keys,” but that the word can also mean
“wrenches” or “faucets.” The expert admitted, how-
ever, that the government’s interpreter had correctly
translated “llaves” as “keys” in the context of the taped
conversations in this case and that the government’s
translations were overall “very good.” Penaloza testified
that she believed her cousin Leo had arranged for the
call she received from “Carlos” and that throughout her
conversations with “Carlos” about the “llaves,” she
thought they were talking about tools, not cocaine.
The jury convicted Penaloza on the sole charge of
attempt to possess with intent to distribute more than
five kilograms of cocaine. Penaloza was sentenced to
120 months of imprisonment.
II. Analysis
A. Evidence of Penaloza’s Connections to Gutierrez
We review a district court’s evidentiary rulings for
abuse of discretion. Romanelli v. Suliene, 615 F.3d 847, 854
(7th Cir. 2010). Penaloza first challenges the admission
of evidence relating to the DEA’s investigation of
Gutierrez. The district court allowed the government to
elicit this testimony to give the jury some context for
Agent Elias’s contacts with Penaloza. This evidence was
not hearsay, as Penaloza contends; it was not offered
for the truth of the matter asserted but rather for the
purpose of explaining why the agent took the investiga-
tive steps that he did. See United States v. Mancillas,
580 F.2d 1301, 1309 (7th Cir. 1978); see also, e.g., United States
10 No. 09-3549
v. Powers, 500 F.3d 500, 508 (6th Cir. 2007); United States
v. Castellini, 392 F.3d 35, 52 (1st Cir. 2004); United States v.
Wilson, 107 F.3d 774, 781 (10th Cir. 1997); United States
v. Collins, 996 F.2d 950, 953 (8th Cir. 1993). Had the gov-
ernment presented Penaloza’s taped phone calls without
first providing some background about the DEA investiga-
tion of Gutierrez, there would have been confusing
and unexplained gaps in the story. How did Elias
obtain Penaloza’s phone number and why did he call it?
Who was “Elivardo” and what was the significance of
the reference to 70 kilograms of cocaine? Elias’s limited
testimony about his related prior dealings with Gutierrez
gave the jury the contextual information necessary
to understand the significance of these references in the
taped phone conversations.
Background information of this sort is not hearsay, but
it may be inadmissible under Rule 403 of the Federal
Rules of Evidence if the danger of unfair prejudice sub-
stantially outweighs its probative value. United States
v. Bradshaw, 719 F.2d 907, 920 (7th Cir. 1983) (citing
Mancillas, 580 F.2d at 1310). Penaloza argues that ad-
mitting this background information in her trial was
unfairly prejudicial because it cast her as part of an inter-
national narcotics conspiracy and went into more detail
than necessary.
Penaloza overstates the prejudicial effect of the back-
ground evidence actually admitted at trial. Agent Elias
did not testify at length or in any significant detail
about the Gutierrez investigation. This part of his testi-
mony began with his negotiations with Gutierrez for
No. 09-3549 11
the Spanish cocaine delivery and ended with his first call
to Penaloza’s phone number; it spans just over four
pages of a 55-page direct-examination transcript. His
testimony about Penaloza’s involvement was limited to
the facts of the charged cocaine transaction; he did not
try to paint her as more broadly involved with Gutierrez
than this singular transaction itself would suggest.
The district court did not abuse its discretion in ad-
mitting this limited background information about the
DEA’s investigation of Gutierrez.
Moreover, any error (if there was error) was harmless.
See, e.g., United States v. Cooper, 591 F.3d 582, 590 (7th
Cir. 2010) (an error is harmful only if in the mind of an
average juror the prosecution’s case would have been
significantly less persuasive had the improper evidence
been excluded). Id. Here, the government introduced
nine tape-recorded conversations against Penaloza that
captured her conversations regarding whether her car
was properly “set up” as a drug-courier vehicle. These
conversation contained code words—“keys,” “family,”
and “clavo”—for drugs and hidden compartments.
When Penaloza met Elias in the parking lot, she asked
him whether everything was “well-packed and the ap-
pearance good and everything.” There were surveillance
photographs of this meeting. Penaloza permitted Elias
to drive her car to another location to load the duffel
bags. And upon his return, the recording captured a
zipping sound, consistent with Elias’s testimony that
he showed Penaloza the packages of sham cocaine
inside the bags. As if more were needed, Agent Brazao
testified that Penaloza confessed to knowing that the
12 No. 09-3549
bags contained drugs. In light of this overwhelming
evidence, any error in admitting the limited background
evidence of the Gutierrez investigation was harmless.
Penaloza also suggests that the government’s intro-
duction of this background evidence circumvented the
district court’s rejection of the government’s Santiago
proffer. The district court held that the government could
not admit statements that Gutierrez made to or about
Penaloza under Rule 801(d)(2)(E) because the govern-
ment had not proven by a preponderance of the evi-
dence that Gutierrez and Penaloza were coconspirators.
It is true that there was some overlap between the
Santiago proffer and the government’s summary of its
anticipated background evidence about the Gutierrez
investigation. But the district court distinguished be-
tween these categories of evidence; while rejecting the
Santiago proffer and excluding admission of Gutierrez’s
statements, the court permitted Agent Elias to place
some limited background information about the Gutierrez
investigation before the jury. Thus, the government
did not “circumvent” anything.
Penaloza also objects to the admission of the state-
ments she made to Gutierrez on the phone after she
received the duffel bags from Elias. She argues that these
statements could not be background evidence because
they were made after her transaction with Elias. As such,
she claims that they fell within the scope of the rejected
Santiago proffer. Again, Penaloza misconstrues the
district court’s ruling. The court barred the admission
of Gutierrez’s statements under Rule 801(d)(2)(E), but
No. 09-3549 13
explicitly reserved judgment on the possibility that
some of the evidence pertaining to Gutierrez “may, in
whole or in part, be otherwise admissible.” After Penaloza
inspected the sham cocaine Elias had placed in her car,
Elias handed her the phone, told her Elivardo was on
the line, and asked her to “[t]ell him I took good care of
you so he won’t bother me.” Penaloza took the phone
and said, “Carlos was very proper, OK? He took care
of me. He was very worried about me.” These were her
words, not Gutierrez’s, and they were admissible as
her own statements under Rule 801(d)(2)(A). Moreover,
they were not offered to prove the truth of the matter
asserted—that “Carlos” treated her well—but rather
to show that Penaloza understood him to be a narcotics
transporter who wanted her to confirm to his boss
he had completed the delivery smoothly. This was not
an end-run around the court’s rejection of the Santiago
proffer.
Finally, the admission of Penaloza’s statements on the
phone as the transaction was completed was not unfairly
prejudicial under Rule 403. Penaloza contends that the
jury might have been misled into believing that she was
part of Gutierrez’s narcotics network. Again, Gutierrez’s
side of the conversation was not admitted, and Penaloza’s
statements are ambiguous about how well she knew
Gutierrez. The probative value of this brief phone con-
versation was to show that she complied with Elias’s
request to confirm that the delivery had been success-
fully completed. There was nothing unfairly prejudicial
about the admission of this evidence.
14 No. 09-3549
B. Constructive Amendment
Penaloza also claims that the government constructively
amended the indictment by introducing evidence that
implicated her in a drug conspiracy. The Fifth Amend-
ment protects a defendant from being convicted of an
offense for which a grand jury has not indicted her.
United States v. Haskins, 511 F.3d 688, 692 (7th Cir. 2007). A
constructive amendment to an indictment, and thus a
violation of the Fifth Amendment, occurs “when either
the government (usually during its presentation of evi-
dence and/or its argument), the court (usually through
its instructions to the jury), or both, broadens the
possible bases for conviction beyond those presented by
the grand jury.” United States v. Crowder, 588 F.3d 929, 938
(7th Cir. 2009) (quotation marks omitted). The purpose
of the rule against constructive amendments is to give
the defendant reasonable notice so that she can prepare
a defense and to ensure that the defendant is not sub-
ject to, in effect, a second prosecution. United States
v. Trennel, 290 F.3d 881, 887-88 (7th Cir. 2002).
Penaloza failed to preserve this issue in the district
court, so our review is for plain error. See, e.g., United
States v. Presbitero, 569 F.3d 691, 698 (7th Cir. 2009). There
was no error at all. The indictment charged Penaloza
with one count of attempting to possess with intent to
distribute more than five kilograms of cocaine. There is
simply no basis for Penaloza’s assertion that the gov-
ernment introduced evidence that she was guilty of
conspiracy in addition to or instead of attempt. As we
have discussed, the government was careful to limit its
No. 09-3549 15
evidence of a link between Penaloza and Gutierrez to
two key facts, both of which pertained to the charged
transaction: (1) that in connection with a Novem-
ber 2006 delivery of the 70 kilos of cocaine reserved
from the earlier Spanish drug sale, Gutierrez had
provided Elias with a phone number that turned out to
be Penaloza’s; and (2) that Penaloza spoke to Gutierrez
on the phone after receiving the sham cocaine to con-
firm that the delivery was complete. Neither the gov-
ernment nor the district court ever suggested that
Penaloza conspired with Gutierrez. The government’s
opening statement and closing argument, and the
court’s jury instructions, were strictly confined to the
charged offense of attempted possession. There was no
constructive amendment of the indictment.
C. Agent Brazao’s Testimony
Finally, Penaloza argues that the district court should
not have admitted Agent Brazao’s testimony about her
confession because it lacked foundation. She contends
that Brazao was not the officer who interrogated her, did
not author the investigative report documenting the
traffic stop, and was not sufficiently specific about which
agents and what questions elicited her incriminating
statements. In addition, she claims that Brazao’s testi-
mony, when coupled with the evidence improperly
linking her to a conspiracy led by Gutierrez, unfairly
prejudiced the jury against her.
Brazao’s testimony about Penaloza’s confession was
a routine and entirely permissible introduction of a
16 No. 09-3549
nonhearsay admission by a party-opponent. F ED. R. E VID.
801(d)(2)(A) (“A statement is not hearsay if . . . [t]he
statement is offered against a party and is the party’s
own statement, in either an individual or representative
capacity . . . .”). Brazao was present when Penaloza con-
fessed; it is immaterial that he was not the interrogating
officer or the author of the investigative report. Penaloza’s
contention that the government needed to provide a
stronger foundation for the testimony is meritless. “[N]o
rule of evidence requires a ‘foundation’; ‘foundation’
is simply a loose term for preliminary questions designed
to establish that evidence is admissible.” A.I. Credit Corp.
v. Legion Ins. Co., 265 F.3d 630, 637-38 (7th Cir. 2001). It
may be good practice and “orderly procedure” for a
witness to establish that “a conversation occurred at
a particular time and place and between the witness
and someone else before the witness . . . testif[ies] to
the conversation’s content,” but Brazao’s testimony
covered these “foundational” facts. Id. at 638. Nothing
more was required. See id. (witness’s testimony about a
conversation was “specific enough to demonstrate the
conversation’s occurrence and relevance” and therefore
admissible, even if the witness did not identify all the
participants in or the exact date of the conversation).
Penaloza also suggests that Brazao’s testimony was
unfairly prejudicial because by the time the jury heard
it, the jury had already been “inculcated with the
notion that she was a part of an international drug con-
spiracy.” This is nothing more than a redundant ob-
jection to the background evidence about the Gutierrez
No. 09-3549 17
investigation and Penaloza’s call to Gutierrez, which,
as we have explained, the district court properly admitted.
A FFIRMED.
8-5-11