In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2125
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E RIC O ZUNA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 495—James B. Zagel, Judge.
A RGUED F EBRUARY 21, 2012—D ECIDED M ARCH 19, 2012
Before E ASTERBROOK, Chief Judge, B AUER, Circuit Judge,
and SHADID, District Judge.
S HADID, District Judge. Eric Ozuna was found guilty
of unlawful possession of a firearm in violation of
18 U.S.C. § 922(g)(1). He was sentenced to a term of
The Honorable James E. Shadid, District Judge for the United
States District Court for the Central District of Illinois, sitting
by designation.
2 No. 11-2125
113 months. On appeal, Ozuna argues that the district
court abused its discretion by failing to exclude evidence
regarding his gang affiliation as unfairly prejudicial.
We disagree and affirm the judgment.
I. BACKGROUND
At approximately 11:46 p.m. on November 6, 2009,
Alainya Bandy called 9-1-1 to report hearing gunshots
fired near her home in the 4800 block of North Lawndale.
After about 10 minutes, Bandy heard people walking in
the yard outside of her house. She looked out her bed-
room window and saw a man in her back yard. Bandy
watched as the man walked down her driveway, looked
into the back alley behind her garage, and then walked
back up the driveway into her yard. She placed a
second call to 9-1-1 to report the man trespassing on
her property.
Chicago Police Officers Martin Staunton and Timothy
Martin were parked in an unmarked police car less than
one block from Bandy’s home when they received
the call dispatching them to the 4800 block of North
Lawndale. Officer Martin got out of the car a few houses
away from Bandy’s residence to search on foot while
Officer Staunton continued around the block to the
alley behind the house and drove up the alley at about 20
to 25 miles per hour with his headlights off. As he ap-
proached the back of Bandy’s house, Officer Staunton
saw two men dressed in dark clothing standing in the
alley at the end of Bandy’s driveway. Officer Staunton
perceived a “significant” height difference between the
No. 11-2125 3
men. The shorter man began running first. The taller
man was closer to Officer Staunton, permitting Officer
Staunton to observe him holding a gun in his hand.
Upon noticing Officer Staunton’s car in the alley, the
men fled up the driveway and through a gangway
toward the front of Bandy’s house. Office Staunton
began chasing the men. As he rounded the corner of
Bandy’s garage, Officer Staunton paused to get his bear-
ings around a blind spot before pursuing the men into
the back yard. Bandy looked out her window and caught
a glimpse of Officer Staunton as he paused. She recalled
hearing Officer Staunton yell “police” before seeing him
in her back yard and hearing the sound of running
through her back yard and the “rustling” of the chain
link fence separating the yard from the gangway after
she saw the officer.
After rounding the garage, Officer Staunton was ap-
proximately 30 feet away from the taller man, later identi-
fied as Ozuna. The shorter man was later identified as
Sergio Sanchez, who, the record indicates, is six inches
shorter than Ozuna. Officer Staunton could no longer
see Sanchez, but saw Ozuna throw the handgun over
a fence and into Bandy’s neighbor’s yard. As Office
Staunton chased Ozuna and Sanchez up the gangway,
Officer Martin intercepted them from the front of
the house. Officer Martin saw Ozuna and Sanchez
running toward him with Officer Staunton only a few
feet behind. Officer Martin ordered them to the ground,
and they were arrested without incident. At the time of
his arrest, Ozuna had previously been convicted of
a felony.
4 No. 11-2125
Officer Piotr Nestorowicz arrived on the scene very
shortly thereafter. Officer Staunton advised Officer
Nestorowicz that he saw Ozuna throw a gun into the
neighbor’s back yard and instructed him where to find
it. Within seconds, Officer Nestorowicz recovered a .38
caliber Smith & Wesson revolver with a defaced serial
number containing two live rounds of ammunition from
the neighbor’s yard.
Ozuna was charged with unlawful possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) in the
United States District Court for the Northern District
of Illinois. Prior to trial, Ozuna’s counsel advised the
government that Sanchez would be testifying as to the
events of November 7, 2009. The government moved
in limine for authorization to cross-examine Sanchez
regarding his shared gang affiliation with Ozuna. After
holding that the gang would not be referred to by name
and that if it came up, it would be referred to generically
as an “organization,” the district court took the remainder
of the motion under advisement, indicating that it
would reserve ruling until hearing the substance of
Sanchez’ testimony on direct examination.
Trial commenced on December 17, 2010. The govern-
ment presented Bandy, Officer Staunton, Officer Martin,
Officer Nestorowicz, the officer who examined the hand-
gun for fingerprints, and a Chicago Police dispatcher
during its case in chief. Ozuna called a single witness,
Sanchez, in his defense. During his testimony, Sanchez,
who had not previously been convicted of a felony or
any other crime for that matter, testified that he was
No. 11-2125 5
the one holding the gun on November 7, 2009 and that
he threw the gun into the neighbor’s back yard
before Officer Staunton even pulled up behind Bandy’s
house. Sanchez further admitted that he and Ozuna
grew up in the same neighborhood, had known each
other since elementary school, had many of the same
friends and acquaintances, and were good friends.
Near the end of direct examination, defense counsel
asked for a sidebar on the issue of the gang evidence. The
following discussion took place:
Mr. Madden: Judge, I just want to get—be clear
I would like to front the gang evidence.
The gang evidence is going to be rele-
vant. Obviously, I objected to it origi-
nally, and I understand—
The Court: Not on what I’ve heard. The door has
not been opened. It’s conceivable
that something could open on cross,
but if he’s careful—it’s not open.
Mr. Madden: Thank you, Your Honor.
Defense counsel then resumed direct examination with
five more questions before resting. Before cross-examina-
tion, the government asked for a sidebar and argued
that the door had been opened. The district court again
stated that everything about the relationship between
Ozuna and Sanchez was open, but that the gang mem-
bership was not.
During cross-examination, counsel for the govern-
ment asked Sanchez where he had obtained the gun, and
the following dialog transpired.
6 No. 11-2125
Q. Where did you get the gun from?
A. From where I used to live, 4827 North Lawndale.
That’s where we had it.
Q. Who lives there?
A. Nobody. Nobody that I know of, but I used to live
there.
Q. You used to live there and knew that there was
a gun there.
A. I already knew. That’s where we always keep
them, usually keep them at.
Q. Who is “we”?
A. The organization I used to belong to.
Q. What organization is that?
(December 20, 2010 Trial Transcript at 423-24) Ozuna’s
counsel objected, and the objection was sustained. How-
ever, the district court allowed counsel to inquire
about other aspects of the organization, which led to
the following dialog.
Q. Could you tell us more about what that organiza-
tion is?
A. It’s a gang that I used to be in.
Q. And were you in that gang with the defendant?
A. Yes.
Id. Counsel for the government then went on to cross-
examine Sanchez on the rules and behaviors of the mem-
bers of the gang, including oaths of loyalty, taking the
No. 11-2125 7
blame for another member’s crime, etc., without further
objection.
In closing argument, counsel for the government
again raised the subject of Ozuna’s gang affiliation.
“Sergio Sanchez is this man’s loyal friend, his fellow
gang member, somebody he wants to protect, someone
he took an oath to protect at one point. Sanchez says that
he’s out of the gang, but he sure knows all the rules,
doesn’t he? He knows what is going on in the gang
these days.” Id. at 495.
Prior to deliberations, the district court gave a cau-
tionary instruction admonishing the jury that the
evidence regarding Ozuna’s membership in a street
gang could not be considered in finding that he was
more or less likely to have committed the charged of-
fense. Ozuna was then found guilty of unlawful posses-
sion of a firearm by a felon.
Ozuna filed a Rule 33 motion for new trial asserting
that cross-examination regarding Sanchez and Ozuna’s
gang affiliation should not have been allowed. The
district court rejected the motion, finding that Sanchez’
testimony had opened the door to the admission of the
gang affiliation evidence and that the evidence should
not have been restricted at all. Ozuna received a sen-
tence of 113 months.
II. DISCUSSION
On appeal, Ozuna contends that the district court
abused its discretion by failing to exclude evidence re-
8 No. 11-2125
garding his gang affiliation under Federal Rule of
Evidence 403 and that the error was not harmless. The
district court’s decision to admit evidence is reviewed
for abuse of discretion, given the judge’s position to
assess the impact of the evidence in the context of the
trial witnesses and evidence as a whole. United States v.
Santiago, 643 F.3d 1007, 1011 (7th Cir. 2011), citing United
States v. Alviar, 573 F.3d 526, 536 (7th Cir. 2009). This
Court accords the underlying decision great deference,
and it will be disturbed only if no reasonable person
could agree with the ruling. United States v. Thomas, 321
F.3d 627, 630 (7th Cir. 2003).
There is no question that evidence of a defendant’s
gang affiliation is potentially prejudicial and inflam-
matory, as it poses the risk that the jury will associate
gang membership with a propensity for committing crimes
and find the defendant guilty by association. Santiago,
643 F.3d at 1011; United States v. Harris, 587 F.3d 861, 867
(7th Cir. 2009). Despite this risk, however, evidence of
gang affiliation is not automatically inadmissible. Id. In
fact, such evidence has been deemed admissible where
it is found to be more probative than prejudicial. Id.,
citing United States v. Montgomery, 390 F.3d 1013, 1018 (7th
Cir. 2004); United States v. King, 627 F.3d 641, 649 (7th Cir.
2010); Clark v. O’Leary, 852 F.2d 999 (7th Cir. 1988). We
are of the opinion that the evidence of gang affiliation
was admissible, from the beginning, to show bias, interest,
or motive. As a result, we now examine the issue on
the way the evidence came in rather than the fact that
it did come in.
No. 11-2125 9
Following the guidance set forth in Santiago, Harris,
and Montgomery, the district court considered the
proffered gang affiliation evidence in this case both pre-
trial, at sidebar during the trial, and again on post-trial
motions. It is important to note that the excerpts from
the two sidebars cited previously in this opinion reveal
that both counsel and the district court could see the
relationships between Ozuna and Sanchez coming out
in open court as the trial progressed. The district court
attempted to reduce any prejudicial impact of the
evidence by directing that the proper name of the gang
not be used, denying the admissibility of Sanchez’ gang
tattoos, and reserving the ultimate question of admissi-
bility until after hearing Sanchez’ testimony on direct
examination. This is a common and prudent practice in
the trial courts when considering these types of issues.
The district court further directed that the govern-
ment could ask questions on the subject only if Sanchez
first raised it himself. Just as common in the trial courts
is that one side, this time the government, then asked
Sanchez questions designed so that Sanchez would
“open the door” and mention his gang membership. Once
open, the district court allowed the questioning that
brought about the testimony of the shared gang affilia-
tion between Sanchez and Ozuna and the loyalty
among members. The jury was instructed that Ozuna’s
membership in a street gang could not be considered
in finding that he was more or less likely to have com-
mitted the charged offense.
Ozuna revisited this issue in his motion for new trial.
The district court again found that Sanchez’ testimony
10 No. 11-2125
had not only opened the door to the evidence but also
that the government should not have been required to
open the door as a prerequisite to admission in the first
place given the relevance of the evidence to the past
relationship between the witness and Ozuna. We agree.
To be relevant, Rule 401 provides that evidence must
have a tendency to make the existence of any fact of
consequence to the determination of the action more or
less probable than it would be without the evidence.
Here, the evidence was offered to show Sanchez’ bias
in favor of his fellow gang member. Proof of bias is
almost always relevant, as “[a] successful showing of
bias on the part of a witness would have a tendency
to make the facts to which he testified less probable in
the eyes of the jury than it would be without such testi-
mony.” United States v. Abel, 469 U.S. 45, 51-52 (1984).
Moreover, “common membership in an organization,
even without proof that the witness or party has per-
sonally adopted its tenets, is certainly probative of bias.”
Id. Sanchez and Ozuna’s membership in the Spanish
Cobras clearly supported the inference that Sanchez’
testimony was slanted or even manufactured in Ozuna’s
favor, particularly as Sanchez, unlike Ozuna, had not
previously been convicted of a felony. It was therefore
relevant and probative.
Under Rule 403, relevant evidence is admissible
unless its probative value is substantially outweighed
by the danger of unfair prejudice. The district court
saw the evidence unfold and was in the best position to
evaluate the probative value of the gang affiliation evi-
No. 11-2125 11
dence while weighing that value against any potential
prejudice. In an abundance of caution, the district court
took substantial precautions to avoid the risk of undue
prejudice that made the issue appear to be more
complex than it actually was. The facts of this case dem-
onstrate a common pattern that occurs in trial courts,
with one side claiming that certain evidence is crucial
to its ability to present its case and the other side
insisting that it cannot receive a fair trial if the evidence
is allowed. The district court balanced the competing
concerns to allow the government to explore a relation-
ship between Ozuna and Sanchez while going to con-
siderable lengths to protect Ozuna’s right to a fair trial.
With the benefit of hindsight, the Court finds that these
precautionary measures were largely unnecessary, as the
prejudice to Ozuna did not substantially outweigh
the considerable probative value of the evidence in estab-
lishing Sanchez’ bias or motivation for testifying that
he carried the handgun on the night in question. We
hold that the admission of the evidence regarding the
shared gang affiliation and tenets of gang membership
was not an abuse of discretion.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
3-19-12