NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0110n.06
No. 13-1099
FILED
UNITED STATES COURT OF APPEALS Feb 07, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
OBIEL LUNA-SANTILLANES, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
BEFORE: SILER, MCKEAGUE, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. On August 23, 2012, a jury found defendant Obiel
Luna-Santillanes (Santillanes) guilty of (1) conspiracy to distribute and to possess with intent to
distribute heroin and cocaine, 21 U.S.C. §§ 841(a), 846; (2) possession with intent to distribute
cocaine—aiding and abetting, 21 U.S.C. § 841(a); 18 U.S.C. § 2; (3) possession of a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c); and (4)-(7) four counts of being an alien
in possession of a firearm, 18 U.S.C. § 922(g)(5). He appeals the district court’s order denying his
motion to suppress evidence seized as a result of the warrantless installation of a GPS tracking
device on a red Lincoln Aviator, and challenges the sufficiency of the evidence and the
constitutionality of the jury-selection procedures. We AFFIRM.
I. BACKGROUND
Santillanes’s arrest arose from a Drug Enforcement Agency (DEA) investigation into an
alleged drug-trafficking organization near Detroit. Since October 2010, DEA agents had been
receiving information from a confidential source (the CS) regarding the organization, which agents
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referred to in warrant applications as the “Luna-Santillanes marijuana trafficking organization.” The
CS had provided information about a person named Zimiri Jimenez1 (known at the time only as
Seymour) whom agents had determined was coordinating and directing marijuana deliveries for the
organization.
On March 4, 2011, the CS informed DEA Task Force Officer (TFO) Todd Murray that
Jimenez was using a cell phone with the number 313-254-6219, and was driving a red Lincoln
Aviator when making narcotics deliveries. A week later, the CS informed Murray that Jimenez,
calling from the 6219 phone, had told the CS that he expected a shipment of cocaine to arrive in
Detroit in about four days. Based on that information, on March 15, 2011, Murray sought and
obtained a warrant to secure location information from the 6219 cell phone, hoping that by tracking
the phone he could locate the organization’s stash houses.
During this same time period, officers conducted surveillance of a house located at 60 Stoner
Street in River Rouge, Michigan. On March 22, 2011, Murray observed the red Aviator associated
with Jimenez parked in front of the house and also observed a silver Chrysler Sebring parked in the
back. Title searches revealed that the Aviator was registered to Donnita Grace Cleveland from
Highland Park, Michigan, and the Sebring was registered to Santos Martinez-Guerrero from Detroit,
neither of whom was a suspect in the investigation.
On March 23, 2011, at Murray’s direction, the CS called the 6219 number and, speaking to
Santillanes, requested a sample of heroin. Santillanes told the CS to meet one of his associates at
a parking lot near Vernor and Interstate 75. The CS went to the lot with an undercover officer, TFO
1
Jimenez is listed on the district court docket as “Zimiri Jimenez, also known as Zimri
Rodilfo Jiminez.” The Government refers to him as “Jiminez” throughout its brief, but we use the
district court’s spelling here.
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Keith Marshall. Jimenez arrived in a car that Murray recognized as the silver Sebring that had been
parked behind the Stoner Street house. Jimenez met with the CS and Marshall, and gave Marshall
a heroin sample.
On April 13, 2011, the CS informed Murray that Santillanes and two others planned to drive
to “pick up some cocaine” the next day. The CS said they would take two cars—the Aviator and
a white Trailblazer—and that Santillanes would not be in the same car as the cocaine. Agents placed
GPS trackers on both vehicles that day.
The next day, Murray tracked the location of the 6219 phone and the two vehicles as they
traveled to Chicago and back in close proximity to each other. As the cars and phone neared Detroit,
DEA agents and officers set up surveillance along Interstate 94. When officers spotted the Aviator,
they notified the Michigan State Police and asked the police to conduct a traffic stop. During the
stop, the Aviator’s driver and sole occupant, Jose Chavira-Velazquez (Velazquez), consented to a
search of the vehicle and the state troopers found a bag containing three bricks of heroin. Officers
removed the GPS devices from the Aviator and the Trailblazer within a matter of hours. After the
stop, the 6219 phone was no longer used.
On May 1, 2011, the CS told Murray and TFO Brian Elko that Velazquez and Jimenez were
now using a black Mazda rental car to conduct narcotic transactions, and stated that when they took
the Mazda they would leave the Sebring parked at a Sterling Heights apartment complex. On May
2, 2011, Elko and Murray found the Sebring at the apartment complex and attached a GPS device
to it. On May 8, 2011, they attached a GPS device to the Mazda.
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On May 9, 2011, Murray and Elko watched while the CS met with Jimenez and Velazquez
to get heroin. Jimenez and Velazquez arrived in the Mazda, talked with the CS, Jimenez placed
heroin in the Mazda for the CS, and then Jimenez and Velazquez left in the Sebring.
The next day, at Murray’s direction, the CS called Santillanes at 313-254-8857, while
Murray listened and recorded the conversation. Santillanes asked whether the CS had “like[d] that
stuff,” and stated that he had “a bunch more” and “some green airforces” —apparently a code term
for marijuana—on the way. The CS asked Santillanes how much he should charge for “that stuff”
since he had not sold it before. Santillanes advised him to mark it up “ten,” and charge $80,000.
On July 6, 2011, after being told by the CS that Santillanes had just received a shipment of
drugs, Murray, Elko and TFO Paul Tennies conducted surveillance at the Stoner Street residence.
They saw Velazquez exit the house and start digging with a shovel in the back yard, while Jimenez
and Santillanes watched. Eventually Tennies saw Jimenez reach into the hole and pull out a black
object that appeared to be a brick of narcotics and take it inside the house. An hour later Jimenez
came out of the house and removed a black plastic bag with something inside it from the hole and
took it inside the residence.
Murray obtained a search warrant for the residence the next day, which was executed on July
8, 2011. Santillanes, Jimenez, and Velazquez were inside the house—Santillanes in the east
bedroom, Velazquez in the west bedroom, and Jimenez in the bathroom. Officers recovered a
loaded Glock .40 caliber semi-automatic pistol, three cell phones (including the 8857 phone), three
tactical vest covers, and miscellaneous documents from the east bedroom. One of the phones
contained pictures of Santillanes holding firearms found elsewhere in the house. In the basement,
agents found a Norinco MAK-90 Sporter semi-automatic rifle and a cell phone. They seized two
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laptops and a cell phone from the kitchen; a Garmin GPS and documents from the Sebring; and a
Cobray Street Sweeper twelve-gauge shotgun, an Intratec nine-millimeter semi-automatic pistol, and
ammunition from the hole in the backyard.
Santillanes was arrested two weeks later, after a run-in with agents in an investigation
targeting another drug trafficker, Oday Khalasawi. Agents in that investigation had heard that
Khalasawi had two kilograms of cocaine for sale and had gotten a confidential source to arrange to
purchase it. While conducting surveillance of Khalasawi’s house on the morning of the purchase,
officers saw Santillanes and Khalasawi leave the house and get into the Sebring, and saw Jimenez
and Velazquez leave and get into a minivan. Both cars started driving toward the location of the
planned sale and officers pulled them over. They found two kilograms of cocaine and a loaded
handgun in the minivan and arrested Santillanes, Jimenez, and Velazquez.
At trial, in addition to testimony regarding the above incidents, cooperating witness Arkan
Alyas testified that in February 2010, he witnessed Santillanes drive away with between 700 and 800
pounds of marijuana that had just been delivered to the Detroit tire shop where Alyas worked. Alyas
also testified that he had previously witnessed Santillanes advise Oday Eunice, a marijuana
trafficker, to wait to make a marijuana delivery because “the situation at the border” was not good.
A grand jury returned an indictment against Santillanes, Jimenez, and Velazquez. Khalasawi
was later added as a defendant in a superseding indictment.
II. DISCUSSION
Santillanes appeals the denial of his motion to suppress, and challenges the sufficiency of
the evidence and the constitutionality of the jury-selection procedures.
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A. MOTION TO SUPPRESS
When reviewing the denial of a motion to suppress, we review the district court’s factual
findings for clear error and its legal conclusions de novo. United States v. Hurst, 228 F.3d 751, 756
(6th Cir. 2000).
Santillanes contends that his Fourth Amendment rights were violated when Murray attached
the GPS device to the Aviator and used it to monitor the vehicle’s movements without first obtaining
a warrant, and that therefore all evidence seized as a result of that violation—including the heroin
seized during the traffic stop and the evidence seized from the Stoner Street house—should not be
admissible against him.
The district court held a suppression hearing, at which Special Agent Edward Moore of the
DEA and TFO Murray testified. The district court found suppression unwarranted because (1)
Santillanes lacked standing to challenge the search of the Aviator, and in the alternative, (2) even
if Santillanes had standing to contest the search, the inevitable-discovery and independent-source
exceptions to the exclusionary rule permitted admission of the evidence. We affirm.
The simplest response to Santillanes’s arguments is that, assuming standing, the officers
would have inevitably discovered all of the evidence seized. The independent-source doctrine
permits the introduction of evidence “if the government can show it was discovered through sources
‘wholly independent of any constitutional violation.’” United States v. Leake, 95 F.3d 409, 412 (6th
Cir. 1996) (quoting Nix v. Williams, 467 U.S. 431, 442–43 (1984)). The inevitable-discovery
doctrine permits the admission of illegally obtained evidence if the government proves that it
“inevitably would have been acquired through lawful means had the government misconduct not
occurred.” United States v. Kennedy, 61 F.3d 494, 497–98 (6th Cir. 1995) (citing Nix, 467 U.S. at
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444). The doctrine “‘requires the district court to determine, viewing affairs as they existed at the
instant before the unlawful search, what would have happened had the unlawful search never
occurred.’” Id. at 498 (quoting United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992)).
The exceptions apply here because, as the district court found, the Government established
that the officers would have found the car and been able to conduct the traffic stop without using the
GPS tracking information. The CS told Murray about the planned trip to obtain drugs, that
Santillanes—a known user of the 6219 phone—would be on the trip, and that the group would be
driving the Aviator and the Trailblazer. In short, officers knew the date of the planned trip, its
purpose, the cars to be used, and of Santillanes’s involvement, without any reliance on the GPS
device. The only information that officers gleaned from the use of the GPS device was information
regarding where the group was at any given moment, but they got the same information using the
location data from the 6219 phone, for which they had a warrant. Accordingly, the district court
correctly found that officers had an independent source for the location data and, based on that
information and the information from the CS, would have inevitably spotted the Aviator on
Interstate 94 and been able to conduct the stop.
Because the evidence from the traffic stop was, therefore, admissible, there is no need to
address Santillanes’s arguments regarding its use in the warrant application.
B. SUFFICIENCY OF THE EVIDENCE
Next Santillanes argues that the Government presented insufficient evidence on each count
to sustain the guilty verdicts on the conspiracy and gun charges.2
2
Santillanes did not argue insufficiency with respect to Count 2, possession with intent to
distribute cocaine—aiding and abetting.
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This court “review[s] de novo a challenge to the sufficiency of the evidence supporting a
criminal conviction.” United States v. Carson, 560 F.3d 566, 579 (6th Cir. 2009). In doing so, we
ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). We “neither independently
weigh[] the evidence, nor judge[] the credibility of witnesses who testified at trial.” United States
v. Talley, 164 F.3d 989, 996 (6th Cir. 1999).
1. CONSPIRACY
To sustain Santillanes’s conspiracy conviction, the Government must point to evidence
sufficient to prove: (1) an agreement to violate the drug laws; (2) Santillanes’s knowledge of and
intent to join the conspiracy; and (3) Santillanes’s participation in the conspiracy. United States v.
Welch, 97 F.3d 142, 148–49 (6th Cir. 1996), cert. denied, 519 U.S. 1134 (1997). The agreement
need not be express; “a tacit agreement or mutual understanding” is sufficient. United States v.
Ramirez, 635 F.3d 249, 258 (6th Cir. 2011). And, although a defendant’s “mere association with
conspirators is not enough to establish participation in a conspiracy,” Pearce, 912 F.2d at 162
(citation omitted), “a defendant’s guilty knowledge and voluntary participation may be inferred from
surrounding circumstances,” United States v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991) (citation
and emphasis omitted), and from “the defendant’s actions and reactions to the circumstances,”
United States v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001).
In objecting to the sufficiency of the evidence to support the conspiracy charge, Santillanes
contends that “there was simply no evidence beyond speculation that [he] was connected to any of
the drugs seized.” Specifically, he argues that the Government did not introduce evidence showing
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“that he participated in any drug related activities” or that he “repeatedly bought drugs from, sold
drugs to, and middled drugs for various co-conspirators.”
We conclude that the evidence was sufficient. First, evidence regarding the CS’s May 10,
2011 phone call to the 8857 number linked Santillanes to the May 9, 2011 transaction in which
Velazquez and Jimenez delivered heroin to the CS. In the phone conversation, which was recorded
and played for the jury, Santillanes asked the CS if he “like[d] that stuff,” told the CS that he had
“a bunch more” if the CS “want[ed] to make something,” and advised the CS regarding how much
to mark up the price of the heroin for resale. A rational trier of fact could infer from the
conversation that Santillanes had provided the heroin for the May 9 transaction and was offering to
provide more.
The Government also introduced evidence connecting Santillanes to the two kilograms of
cocaine recovered in the July 21, 2011 traffic stop. DEA Agent Edward Moore testified regarding
his investigation of Khalasawi and Khalasawi’s plan to sell the cocaine to a confidential informant
working with Moore. Officers who assisted with the arrest testified that on the morning of the
planned sale, Santillanes, Khalasawi, Jimenez, and Velazquez all left Khalasawi’s house at the same
time and drove toward the gas station where the transaction was supposed to take place. Santillanes
and Khalasawi took the Sebring, and Jimenez and Velazquez drove a minivan. Officers stopped the
vehicles en route and found the two kilograms of cocaine and a loaded handgun in the minivan.
Khalasawi and Santillanes were not in the same vehicle as the cocaine, but Special Agent Edward
Donovan testified that in his experience, in such situations the owner of the drugs will ride in a
separate vehicle from the drug courier. A rational trier of fact could infer from this evidence that
Santillanes was aware of and participating in the planned transaction. This inference gains
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additional support from the fact that Santillanes gave officers a fake name during the traffic stop.
See Salgado, 250 F.3d at 447 (“[A] defendant’s participation in the conspiracy’s common purpose
may be inferred from the defendant’s actions and reactions to the circumstances.”).
Finally, other evidence showed that, except for a brief trip to California, Santillanes lived
at the Stoner Street residence with Jimenez and Vazquez, and that Santillanes used cell phones and
vehicles connected with the drug transactions and the trip to Chicago, and Santillanes was present
when a suspected brick of heroin was removed from the hole in the backyard. Taken as a whole,
this evidence was sufficient for a jury to find Santillanes knew of and participated in an agreement
to violate drug laws, as required to sustain his conviction under § 846.
2. FIREARMS
The jury convicted Santillanes of one count of possession of a firearm in furtherance of a
drug-trafficking crime, 18 U.S.C. § 924(c) and four counts of being an alien in possession of a
firearm, 18 U.S.C. § 922(g)(5). Santillanes argues that there was insufficient evidence to support
the convictions because “none of the witnesses testified that they had frequently seen [Santillanes]
carrying a gun during drug deals,” and Santillanes’s fingerprints were not found on any of the
firearms. We disagree.
i. ALIEN-IN-POSSESSION
To support a conviction under § 922(g)(5), the Government must show that: (1) the
defendant is an illegal alien, (2) he knowingly possessed the firearm, and (3) the firearm traveled
in or affected interstate commerce. 18 U.S.C. § 922(g)(5)(A). Santillanes concedes the first and
third elements, but argues that there was insufficient evidence of possession.
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Possession of a firearm “may be either actual or constructive and it need not be exclusive but
may be joint.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), abrogated on other
grounds by Scarborough v. United States, 431 U.S. 563 (1977). Both actual and constructive
possession “may be proved by direct or circumstantial evidence.” Id. Actual possession requires
that the defendant have “immediate possession or control” of the firearm. Id. Constructive
possession requires that the defendant “knowingly ha[ve] the power and the intention at a given time
to exercise dominion and control over an object, either directly or through others.” Id. A
defendant’s mere proximity to a firearm is insufficient to show constructive possession. United
States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (“‘Presence alone’ near a gun . . . does not ‘show
the requisite knowledge, power, or intention to exercise control over’ the gun to prove constructive
possession.”) (emphasis omitted) (quoting United States v. Birmley, 529 F.2d 103, 107–08 (6th Cir.
1976)). “[O]ther incriminating evidence, coupled with presence” is required “to tip the scale in
favor of sufficiency.” Birmley, 529 F.2d at 108. For example, evidence of a defendant’s “dominion
over the premises where the firearm is located” is sufficient to establish constructive possession of
the firearm. United States v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007) (citation omitted). But
where possession of premises is nonexclusive, the evidence must show some additional connection
between the defendant and the firearm to establish constructive possession. See United States v.
Bailey, 553 F.3d 940, 944 n.3 (6th Cir. 2007) (discussing with approval “the widely held rule that
nonexclusive possession of the premises cannot establish constructive possession over items found
within the premises”).
The Government introduced sufficient evidence of possession to support the § 922(g)(5)
charges. The firearms at issue were the Glock .40 caliber semi-automatic pistol, the Norinco
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MAK-90 Sporter semi-automatic rifle, the Cobray Street Sweeper twelve-gauge shotgun, and the
Intratec nine-millimeter semi-automatic pistol. All four firearms were found at the Stoner Street
residence. Officers testified that Santillanes was living at the residence with Jimenez and
Velazquez, that Santillanes was found in the east bedroom, and that the Glock was in plain view
under the night stand in that bedroom, where officers also found Santillanes’s cell phone. Based on
these facts, a rational trier of fact could find that the room was Santillanes’s bedroom and that he
constructively possessed the Glock. See United States v. Malone, 308 F. App’x 949, 952 (6th Cir.
2009) (collecting cases and observing, “[t]his court has repeatedly and frequently held that
constructive possession may be shown to exist if the contraband is found in a defendant’s bedroom
or personal living space”); United States v. Grubbs, 506 F. 3d 434, 440–41 (6th Cir. 2007) (noting,
“we have sustained a conviction for constructive possession when the weapon is found in areas over
which the defendant exercised control, such as his bedroom”).
The Norinco rifle was found in the basement, and the Street Sweeper shotgun and Intratec
pistol were in the hole in the backyard. The Government introduced photographs from Santillanes’s
cell phone showing him holding the Street Sweeper and Norinco firearms in the Stoner Street
residence, and TFO Tennies testified that he saw Santillanes monitoring the removal of items from
the hole in the backyard of the residence just two days prior to the raid. The photographs are
evidence that Santillanes actually possessed the Street Sweeper and Norinco firearms.3 And, a
3
Santillanes’s attorney conceded as much in closing argument. He stated,
Pictures of [Santillanes] were taken on the cell phone, of him having a gun strapped
to his chest, that he was wearing some kind of fatigues or whatever. He is an alien
who did in fact possess that firearm or those firearms. He’s not denying this
incident. Those pictures show that he is an alien in possession of the firearm. We
are not asking you jurors to disregard the situation.
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rational trier of fact could infer from Tennies’s testimony and the evidence that Santillanes resided
at the Stoner Street residence, that he had knowledge of and, at least, shared control over the Intratec
pistol. See Grubbs, 506 F.3d at 440 (suggesting that it would have been rational for the jury to
conclude that the defendant houseguest had constructive possession of the firearm found under his
brother’s mattress if the evidence had showed that the defendant, e.g., “owned the home where the
handgun was found, . . . had some contact with the room where it was found, or . . . knew of its
location”) (internal citations omitted).
ii. POSSESSION IN FURTHERANCE OF DRUG TRAFFICKING
This count stems from the firearm found in the minivan occupied by Jimenez and Velazquez
during the traffic stop on the day of the arrest. Santillanes was convicted on the charge under
Pinkerton liability. See Pinkerton v. United States, 328 U.S. 640 (1946). Pursuant to the Pinkerton
doctrine, a conspirator may be convicted for reasonably foreseeable “substantive offenses of other
conspirators committed during and in furtherance of the conspiracy.” United States v. Martin, 920
F.2d 345, 348–49 (6th Cir. 1990).
The evidence supports Santillanes’s conviction on this charge. As discussed above,
sufficient evidence supported the jury’s finding that Santillanes was involved in a drug conspiracy
with Jimenez and Velazquez. See United States v. Henning, 286 F.3d 914, 920 (6th Cir. 2002) (“The
Pinkerton rule is necessarily premised on the existence of a conspiracy.”).
Sufficient evidence also supported the jury’s finding that Jimenez and Velazquez possessed
the handgun in furtherance of the planned cocaine sale to the confidential informant. To prove the
“in furtherance” element, the Government must show a “specific nexus between the gun and the
crime charged,” United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001), i.e., the firearm must
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“advance, promote, or facilitate the crime.” United States v. Paige, 470 F.3d 603, 609 (6th Cir.
2006) (citing Mackey, 265 F.3d at 462–63). Factors relevant to finding a nexus between the firearm
and the crime include whether the gun was quickly and easily available for use, what type of gun
it was, whether it was loaded, the legality of its possession, the type of drug activity
conducted—e.g., the size of the sale—and the time and circumstances under which the gun was
found. Mackey, 265 F.3d at 462. Here, the firearm was a loaded nine-millimeter semi-automatic
handgun. It was found, with two kilograms of cocaine, in the minivan occupied by Jimenez and
Velazquez when they were stopped en route to the scheduled drug transaction. The cocaine was in
a gift bag on the floor behind the drivers seat. The handgun was in a cavity behind the glove box.
A picture of the gun in the cavity was entered into evidence, and the jury was instructed that it must
find that the gun was “strategically located so that it was quickly and easily available for use” in
order to find that it was possessed “in furtherance of” the drug crime. Agent Donovan testified that
in his experience, drug dealers often bring guns to a drug deal because “the most volatile time of a
drug deal is when the drugs and the money are about to be exchanged.” Thus, the Government
presented evidence that the gun was loaded, small, accessible, and found in a vehicle being used to
transport a large amount of cocaine to a drug transaction, and that it is not uncommon for drug
dealers to carry guns in such circumstances. This is sufficient evidence for a rational trier of fact
to find that Jimenez and Velazquez possessed the gun in furtherance of a drug crime.
Sufficient evidence also supports a finding that Santillanes would have foreseen that Jimenez
and Velazquez would carry the firearm to help advance the conspiracy. See Martin, 920 F.2d at 348.
This court has held that evidence supporting an inference “that a defendant in a drug conspiracy
should have foreseen his coconspirator’s firearm possession . . . must be more than a mere
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generalized presumption that drug transactions involve guns.” United States v. Wade, 318 F.3d 698,
702 (6th Cir. 2003). Rather, the evidence must show that the defendant either “‘knew the weapon
was present, or at least knew it was reasonably probable that his coconspirator would be armed’”
because, e.g., “the quantity of drugs at issue is so large that the participants would expect others to
be carrying protection.” Id. (quoting United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir. 1994)).
The two kilograms of cocaine at issue here, which Agent Donovan testified could be sold for
between $52,000 and $64,000, is sufficient under this court’s precedent to support an inference that
Santillanes should have foreseen that Jimenez and Velazquez would carry a gun. See id. (collecting
cases, e.g., United States v. Odom, 13 F.3d 949, 959 (6th Cir. 1994) (finding gun possession
foreseeable in conspiracy involving at least 2.385 kilograms of cocaine); United States v. Christian,
942 F.2d 363, 367 (6th Cir. 1991) (finding gun possession foreseeable where conspirators’ car
contained $60,000), abrogated on other grounds by Bailey v. United States, 516 U.S. 137 (1995));
see also United States v. Woods, 604 F.3d 286, 291 (6th Cir. 2010) (reviewing decisions of this court
finding an inference of foreseeability based on the quantity of drugs and noting, “[e]ach of these
cases involved narcotics worth at least $60,000 located near the firearm”). The Government also
presented evidence that guns were found in the house that Santillanes shared with his conspirators,
and that they stored the guns and drugs together in the hole in their backyard. Taken as whole, this
was sufficient evidence to support the inference that Santillanes would have foreseen that his
coconspirators would be armed.
C. JURY SELECTION
Finally, Santillanes argues that the district court’s jury selection procedures
unconstitutionally excluded Hispanics from the jury array. Santillanes forfeited this issue by failing
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to adequately raise it below. Santillanes filed a motion with the district court titled Motion
Challenging Jury Selection Process, without any exhibits or brief in support. The body of the
motion, with paragraph numbers and breaks omitted, reads as follows:
Mr. Luna-Santillanes is a Mexican citizen being charged in an indictment involving
conspiracy to possess with intent to deliver heroin, cocaine and marijuana and other
criminal charges. The jury selection process in the Eastern District of Michigan
produces an under representation of Hispanics. As a result, Mr. Luna-Santillanes
faces a jury that cannot adequately have a fair cross section of Hispanics in his jury
array. US v. Ovalle, 136 F.3d 1092 (6th Cir. 1998) ordered a new trial based on the
under representation of Hispanics. In order for Mr. Luna-Santillanes to have a
constitutionally required trial, this Court must conduct a hearing to determine
whether there is an under representation of Hispanics in the Eastern District of
Michigan jury array and if not, what remedy, if any, can be offered to Mr.
Luna-Santiallnes [sic].
WHEREFORE, Mr. Luna-Santillanes respectfully requests that this Honorable Court
to conduct [sic] a hearing to determine whether Mr. Luna-Santillanes is being denied
a fair jury trial, including ordering the access to the jury records relating to Hispanics
in the jury array and that this Court conduct an evidentiary hearing.
The district court, pursuant to Eastern District of Michigan Administrative Order No. 00-AO-
060, referred the motion to the Chief Judge. Addressing the motion, the Chief Judge explicitly
construed it as a request for access to records to support an intended future motion to challenge the
jury selection process, and not as the challenge itself, stating: “[T]he Court views its inquiry as
limited to Defendant’s request for juror information and records, as opposed to the merits of any
constitutional challenge he might pursue using such juror information.” Pursuant to Administrative
Order No. 00-AO-060, Santillanes was already entitled to review information regarding juror
number, race, and Hispanic ethnicity for the current jury wheel, and records relating to prior jury
wheels were available for public inspection pursuant to 28 U.S.C. § 1868. The Chief Judge denied
Santillanes’s request for access to additional records on the basis that Santillanes had not shown how
additional records would be of assistance in proving a violation of the Jury Selection and Service
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No. 13-1099
United States v. Santillanes
Act or the Sixth Amendment. See Administrative Order No. 00-AO-060 (setting forth a good-cause
standard for access to information beyond juror number, race, and ethnicity) (quoted in United States
v. O'Reilly, 05-CR-80025, 2008 WL 115537, at *2 (E.D. Mich. Jan. 10, 2008)). Santillanes filed
nothing else with the district court on the issue and made no further argument. Santillanes was on
notice that if he wished to further challenge the jury selection process he was required to renew his
objection and present his case. To the extent Santillanes now challenges the denial of his request
for an evidentiary hearing, he forfeited this argument by failing to renew the issue. To the extent
he challenges the denial of further discovery, he has not shown that the additional information was
necessary. And, to the extent he challenges the actual jury selection procedures, he has made no
showing that Hispanics were systematically excluded from the jury array.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the conviction in all respects.
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