United States v. Hidalgo-Sanchez

29 F.4th 915

UNITED STATES of America, Plaintiff-Appellee,

v.Pablo HIDALGO-SANCHEZ and Luis F. Gomez, Defendants-Appellants.

No. 20-2673

No. 21-1158

United States Court of Appeals, Seventh Circuit.

Argued January 5, 2022

Decided March 31, 2022

Timothy W. Funnell, Attorney, Office of the United States Attorney, Green Bay, WI, Jonathan H. Koenig, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Jeffrey W. Jensen, Sr., Attorney, Milwaukee, WI, for Defendant-Appellant Pablo Hidalgo-Sanchez.

Michael Bernard Nash, Attorney, Chicago, IL, for Defendant-Appellant Luis F. Gomez.

Before Kanne, Wood, and Brennan, Circuit Judges.

Kanne, Circuit Judge.

Pablo Hidalgo-Sanchez and Luis F. Gomez, among others, were indicted for their roles in a drug-distribution conspiracy operating in Milwaukee, Wisconsin. Each was convicted by a jury and now appeals.

Hidalgo-Sanchez challenges the sufficiency of the evidence against him, the propriety of venue in the Eastern District of Wisconsin, and the failure of the trial judge to give a limiting instruction to the jury, but we find no reversible error among these issues.

Gomez challenges the government's use of bolstering testimony. We agree that the government's use of such testimony constituted error, but ultimately conclude that the error does not warrant reversal.

Therefore, we affirm both convictions.

I. BACKGROUND

A. Factual Background

In June 2017, twenty-one people were indicted for their alleged roles in a drug-trafficking conspiracy that sought to distribute methamphetamine, cocaine, and heroin in Milwaukee, Wisconsin. Among the indicted were defendants Pablo Hidalgo-Sanchez (also known by the name "PeeWee") and Luis F. Gomez (also known as "Paco"), the appellants in this case.

The indictment was the result of a long-term investigation by the DEA and the High Intensity Drug Trafficking Area ("HIDTA") task force. DEA agents first identified a money courier operating in Chicago and Milwaukee, and the investigation expanded from there. Eventually, investigators obtained authorization to monitor phones used by members of the organization. The information investigators learned from these wiretaps enabled them to further surveil the organization using pole cameras and in-person observation.

Gomez is the purported leader of the organization. He was in communication with suppliers in Mexico and he oversaw the importation of controlled substances to the Milwaukee area. The organization moved drugs to the Midwest by hiding them in secret compartments in vehicles that were then loaded onto commercial car carriers. When the drugs reached their destination, they were replaced with proceeds and the cars were sent back to their source.

Over the course of the investigation, agents seized four such vehicles. The basic details of each of these seizures are outlined below:

• On March 5, 2017, law enforcement officers seized a silver Chrysler 300 near Albuquerque, New Mexico, containing eleven kilograms of cocaine.

• On April 18, 2017, law enforcement officers seized a silver Volkswagen Jetta in West Chicago, Illinois, containing $145,380.

• On May 14, 2017, law enforcement officers seized a Mercury Marquis in Seward, Nebraska, containing $99,920 and one kilogram of cocaine.

• On July 25, 2017, law enforcement officers seized a Mercedes SUV in Livingston County, Michigan, containing about five kilograms of methamphetamine.

While Gomez arranged the first three of these intercepted shipments, Hidalgo-Sanchez was responsible for the last. After they were arrested, Gomez and Hidalgo-Sanchez were charged in Count One of the indictment, together with fifteen others, with conspiring to distribute one kilogram or more of heroin, five kilograms or more of cocaine, and fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and also with aiding and abetting the conspiracy in violation of 18 U.S.C. § 2.

B. Evidence

The evidence in this case consists of physical evidence, testimony based on in-person surveillance and other law enforcement activities, pole-camera videos, and the fruits of a wiretap investigation. In addition to call recordings and transcripts of those calls, the wiretap investigators also collected GPS location information for all of the phones used in intercepted calls. Depending on the carrier, the location information would indicate a broad area around a cell tower or a smaller subsection of that area, or it might even pinpoint a phone within thirty meters. Investigators would often send officers to conduct in-person surveillance at the location where a call was made so that they could collect more information or identify new coconspirators.

Evelyn Lazo, a Milwaukee police officer and HIDTA task force member, participated in all aspects of the investigation. She is also a native Spanish speaker, so she was able to verify that the English translations of the intercepted calls were accurate. Because she was intimately acquainted with the voices of everyone recorded on the calls, she was able to identify the speakers on all calls. She also testified that Hidalgo-Sanchez identified his own voice on two of the calls when he was arrested.

Detective Matthew Cooper explained how investigators associated phone numbers with specific people. They began with information that linked coconspirators Jonathan Martinez-Acosta and Juan Avina to certain phone numbers. Then they began to intercept calls on those numbers. Officer Lazo explained that when they intercepted calls or text messages, they received toll data. Toll data includes the phone numbers of the calling and receiving phones, the date and time of the call, how long the call lasted, and sometimes location information. Detective Cooper testified that they started identifying other people intercepted on the calls. If someone was not known to the investigation, then they might use in-person surveillance to figure out their identity. Using these methods, they were able to associate all of the intercepted phone numbers with specific people and, when appropriate, expand the wiretap to include those numbers.

1. Bryan Banks

One man, Bryan Banks, gave key testimony during the trial. Banks testified that he worked with Gomez, among others. He explained how much he paid for kilograms of cocaine. He also told the jury that he and his coconspirators referred to drugs and money using coded language. He ordered kilograms using just a bare number (e.g., "one" or "two"). Heroin was "dog," "puppy," "boy," or "China rice." He also explained that "hard and solid" cocaine was preferable to "powdery" cocaine because the latter might have been adulterated. Banks identified Gomez as the man he would get drugs from. He also identified Gomez's voice on several intercepted calls.

On July 12, 2017, a call between Banks and Gomez was intercepted. In that call, Banks requested "two." Then he and Gomez met up at the location where Banks stored his product. Milwaukee police officer and HIDTA task force member Miguel Correa, Jr. testified about another such meeting: On September 15, 2017, Banks texted Gomez, indicating that he wanted "one." Officer Correa immediately went to Banks's residence, where he witnessed Gomez arrive and meet Banks out of sight.

2. Chrysler 300

Detective Cooper testified that he directed agents to surveil a Wal-Mart parking lot on January 25, 2017, in anticipation of a heroin shipment arriving. The agents collected video and photographic evidence that showed coconspirators Martinez-Acosta and Mario Esquivel-Sotelo receive a gray Chrysler 300 from a commercial car carrier. Detective Cooper entered the car's license plate number into a national automated license plate reader program that would alert him if one of the program's cameras identified the plate number.

Later that day, several calls between Gomez and Martinez-Acosta were intercepted. Gomez confirmed that they got the right vehicle and told Martinez-Acosta that he would tell him "how to open that shit up so that [he] can get out those things and then put it in the garage." Gomez also warned Martinez-Acosta that the car has "a listening device and it shows where the car is," so he shouldn't say anything.

Detective Cooper received an alert from the license plate reader program on March 5, 2017, that the Chrysler 300 was in New Mexico. He notified the New Mexico State Police, who intercepted it. Those officers found eleven kilograms of cocaine, a GPS tracker, and an audio recorder.

3. Jetta

Detective Cooper testified that on February 28, 2017, a pole camera captured video of Gomez backing out of his garage in a silver Volkswagen Jetta. A few days later, Gomez and several others were seen with the Jetta in an alley behind Gomez's apartment. Shortly thereafter, security cameras covering a Wal-Mart parking lot showed the Jetta being loaded onto a commercial car carrier. Officer Correa noted that a white SUV he had surveilled previously was monitoring the loading and left upon completion.

Homeland Security Investigations Special Agent and HIDTA task force member Russell Andrew Dykema testified that he shot video of the silver Jetta being loaded onto another car carrier on April 18, 2017. The jury also saw this video. After the Jetta was loaded onto the carrier, Special Agent Dykema followed it for "hours" into Illinois. A number of other officers arrived, stopped the car carrier, inspected the Jetta, and found $145,380 and a GPS tracking device with an audio recorder.

About a month later, a phone conversation that Gomez had with two men in Mexico only identified as Peñasco and Tomas—characterized by the government as the sources of supply—was intercepted. They discussed the seizure of the Jetta and the cash in it. They thought it was very "strange."

4. Grand Marquis

Detective Cooper testified that a March 22, 2017, pole-camera video showed a commercial car carrier depositing a white Mercury Grand Marquis in an alley. Esquivel-Sotelo and Oscar...