United States v. Elvis Medrano

83 F.4th 1073

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 16, 2023
• Docket: 22-3219
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-3219 UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ELVIS C. MEDRANO, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 2:20-cr-00017 — James Patrick Hanlon, Judge.

____________________

ARGUED SEPTEMBER 7, 2023 — DECIDED OCTOBER 16, 2023

____________________ Before BRENNAN, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges. BRENNAN, Circuit Judge. After the government presented substantial evidence against Elvis Medrano, a jury found him guilty of conspiracy to possess with intent to distribute con- trolled substances. He challenges that conviction and asks for a new trial. He argues that a trial exhibit—screenshots of a text 2 No. 22-3219

message conversation between him and another individual— should not have been admitted because the conversation was hearsay. Given the considerable evidence introduced against Medrano, any error in admitting that exhibit was harmless. So, we affirm the judgment of the district court. I A From March 2020 until his arrest in August 2020, Medrano engaged in a conspiracy to distribute mixtures and substances containing detectable amounts of methamphetamine, co- caine, and 3,4-Methylenedioxymethamphetamine (MDMA) in the Southern District of Indiana. A drug supplier shipped drugs from California to Indiana, where Medrano and others used the United States Post Office and a post office employee to distribute the drugs in Indiana. Several other individuals were involved. During this time, Medrano was a fugitive. Officers tracked and attempted to arrest him on several occasions. On June 1, 2020, officers found Medrano at a motel in Indiana. When of- ficers attempted to arrest him, he fled and led officers on a high-speed chase. Medrano evaded arrest, but officers found his truck, and took a co-conspirator, Nikki Foster, into cus- tody. They later obtained a warrant to search Medrano’s mo- tel room. There officers found his burner phone, as well as drug paraphernalia including scales, baggies, and substances used to dilute methamphetamine. They also recovered the key to a post office box, which officers later determined Medrano had received from Christina Johnson, a post office employee. No. 22-3219 3

Around July 2020, officers tracked Medrano to another motel in Indiana. Once again, Medrano led officers on a high- speed chase and avoided arrest. Officers executed a search warrant for Medrano’s motel room and found drug parapher- nalia, including substances used to dilute methamphetamine, a vacuum sealer, rubber bands, baggies, a pipe, a scale with calibrating weights, a gas stove for cooking methampheta- mine, and a drug ledger. They also located another phone be- longing to Medrano. Officers finally arrested Medrano at a residence in Indiana. There they discovered methamphetamine, as well as drug paraphernalia, including baggies, scales, and substances used to dilute methamphetamine. They also found a third phone belonging to Medrano. This phone contained text messages between Medrano and a contact identified as “Rob Mar- shalltown.” The text messages were later introduced at trial as Exhibit 218(B). B A grand jury returned a superseding indictment charging Medrano with conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846. 1 The district court held a four-day trial. At trial, the government introduced overwhelming evidence against Medrano. This included the testimony of

1 Medrano was also indicted for and convicted of being a felon in pos-

session of ammunition. At oral argument he confirmed he does not chal- lenge that conviction, which would stand regardless of our decision on the admission of Exhibit 218(B). Oral Argument at 2:00–2:35. 4 No. 22-3219

several law enforcement officers, post office employees and inspectors, and expert witnesses and lab technicians. The gov- ernment introduced several exhibits, including text messages between members of the conspiracy, drugs, drug parapherna- lia, photos of drugs and drug paraphernalia, postal service tracking reports and receipts, and photos of drugs in the postal boxes. Motel surveillance videos were shown to the jury. Two cooperating witnesses testified. Christina Johnson, a postal employee who Medrano recruited to the conspiracy, testified that she gave him access to post office boxes for oth- ers to ship him drugs and that he asked her to track drug packages. And Brandy Gregory, another co-conspirator, testi- fied that she witnessed Medrano and others selling and pur- chasing drugs on multiple occasions. Medrano objected to the admission of several trial exhib- its, but here only a text message conversation with Mar- shalltown, Exhibit 218(B), is at issue. At trial, Medrano argued the text message conversation was hearsay. The district court overruled his objection, concluding that the exhibit was ad- missible. After trial, the jury found Medrano guilty. The district court sentenced him to 360 months’ imprisonment, and he timely appeals. II Medrano objects to the district court’s admission of the text messages between him and Marshalltown as non-hearsay statements of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E). He argues that the statements are hearsay and represent only a buyer-seller relationship, not a co-conspira- tor relationship. No. 22-3219 5

Because “decisions regarding the admission and exclusion of evidence are peculiarly within the competence of the dis- trict court,” Pittman ex rel. Hamilton v. County of Madison, 970 F.3d 823, 829 (7th Cir. 2020), they are reviewed for abuse of discretion. We will reverse a district court’s factual determi- nation only if it is clearly erroneous. United States v. Powers, 75 F.3d 335, 340–41 (7th Cir. 1996). “We will not reverse if the error is harmless in light of the trial record as a whole.” Vi- ramontes v. City of Chicago, 840 F.3d 423, 430 (7th Cir. 2016). Rule 801(d)(2)(E) provides that a statement is not hearsay if it was “offered against an opposing party” and “made by the party’s coconspirator during and in furtherance of the conspiracy.” The government must prove by a preponder- ance of the evidence that “(1) a conspiracy existed; (2) the de- fendant and declarant were members of the conspiracy; and (3) the statement was made during the course and in further- ance of the conspiracy.” United States v. Singleton, 125 F.3d 1097, 1107 (7th Cir. 1997). As an initial matter, neither party addressed whether in- dependent evidence supported the district court’s determina- tion that Marshalltown was a member of the conspiracy. In Bourjaily v. United States, the Supreme Court, looking to the Federal Rules of Evidence, held that preliminary questions concerning admissibility of evidence “shall be determined by the [district] court” and that the district court may consider any evidence it wishes, unhindered by considerations of admissibility in making those determinations. 483 U.S. 171, 175–76 (1987). The Court held, however, that it “need not de- cide … whether the courts below could have relied solely upon … hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence.” Id. 6 No. 22-3219

at 181. Since then, this court has made clear that the statement alone is not sufficient to establish a conspiracy exists and that some independent evidence must be offered. See, e.g., United States v. Quiroz, 874 F.3d 562, 570 (7th Cir. 2017) (citing United States v. Lindemann, 85 F.3d 1232, 1239 (7th Cir. 1996)). While abundant evidence supported the finding that Medrano participated in a larger conspiracy, notably, the gov- ernment did not provide independent evidence that Medrano conspired with Marshalltown or that Marshalltown otherwise participated in the larger conspiracy. The district court stated it “studied” Exhibit 218(B) and “in the context of th[at] spe- cific exhibit, and with all of the other facts and circumstances of the evidence that has been admitted,” it found that “the fac- tors articulated for co-conspirator statements are satisfied.” This raises the question whether a district court can rely solely on hearsay statements and evidence of the larger conspiracy involving the defendant, but not the declarant, to find that a conspiracy between the defendant and declarant existed. We need not resolve the independent evidence question because any error in admitting Exhibit 218(B) was nonconsti- tutional harmless error. Though Medrano argued at trial and argues on appeal that the admission of the exhibit violated the Confrontation Clause—and thus, the admission was a consti- tutional error—the text messages in that exhibit are nontesti- monial, and thus do not implicate the Constitution. See Crawford v. Washington, 541 U.S. 36, 56 (2004) (recognizing “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact” in con- trast to “a casual remark to an acquaintance”). A nonconstitutional error committed at trial that is un- likely to have altered the outcome of the trial is harmless. No. 22-3219 7

Kotteakos v. United States, 328 U.S. 750, 764–65 (1946). As with much of American law, harmless error began with English common law. The English harmless error rule provided that the “erroneous admission or rejection of a piece of evidence was not a sufficient ground for setting aside the verdict and ordering a new trial unless upon all the evidence it appeared to the judges that the truth had thereby not been reached.” JOHN HENRY WIGMORE, 2 WIGMORE ON EVIDENCE: EVIDENCE IN TRIALS AT COMMON LAW § 21, at 1 (4th ed. 2023). In contrast to harmless error, an error that would have altered the outcome of the trial or otherwise deprived the defendant of a fair trial is prejudicial. See United States v. Harden, 893 F.3d 434, 451–52 (7th Cir. 2018); United States v. Lauderdale, 571 F.3d 657, 661 (7th Cir. 2009). Courts use two approaches to distinguish between harm- less error and prejudicial error. The first looks to whether the jury reached the correct result, despite the trial court’s error. See, e.g., WIGMORE § 21, at 9 & n.17 (collecting cases). The sec- ond looks to whether the trial court’s error affected the jury’s deliberation or contributed to the judgment. See id. at 10. Our court has adopted the second approach. See, e.g., United States v. Diggs, 81 F.4th 755, 757–58 (7th Cir. 2023); United States v. Gomez, 763 F.3d 845, 863 (7th Cir. 2014) (en banc). Because Medrano challenges a nonconstitutional trial er- ror, we apply the second approach. That approach is memori- alized in Federal Rule of Criminal Procedure 52(a), which pro- vides, “[a]ny error … that does not affect substantial rights must be disregarded.” Thus, “[t]he test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been significantly less persuasive had the improper evidence been excluded.” United States v. Curtis, 781 8 No. 22-3219

F.3d 904, 911 (7th Cir. 2015). “We will affirm if ‘the error had no substantial influence on the verdict’ because ‘other un- tainted incriminating evidence is overwhelming.’” United States v. Chaparro, 956 F.3d 462, 482 (7th Cir. 2020) (quoting United States v. Zuniga, 767 F.3d 712, 717 (7th Cir. 2014)). So “[e]ssentially, an evidentiary error is harmless if it did not have a substantial influence on the verdict.” United States v. Pulliam, 973 F.3d 775, 782 (7th Cir. 2020), as amended (Sept. 8, 2020). The government bears the burden of proving that an error was harmless. United States v. Hidalgo-Sanchez, 29 F.4th 915, 929 (7th Cir. 2022). While the line between harmless and prejudicial error can be difficult to draw, these facts fall well on the harmless side. The evidence of Medrano’s guilt was overwhelming. See WILLIAM J. BAUER PATTERN CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT §§ 5.09–5.10 (2020 ed.) (listing the ele- ments of conspiracy). A conspiracy existed. The government presented multiple sets of text messages between members of the conspiracy and Medrano discussing drug trafficking. Postal employees and inspectors testified to the existence of the conspiracy and how Medrano and others used the post office to further their conspiracy. And a co-conspirator, Brandy Gregory, testified that she witnessed Medrano and others on multiple occasions selling and purchasing drugs. Medrano was a member of the conspiracy. Postal employ- ees and inspectors also testified to how Medrano recruited a post office employee and utilized the post office to further his conspiracy. Christina Johnson, the postal employee who Medrano recruited for the conspiracy, testified that she gave Medrano access to post office boxes for others to ship him drugs and that Medrano asked her to track drug packages. No. 22-3219 9

Several law enforcement officers testified that they chased Medrano as he evaded arrest and searched Medrano’s differ- ent motel rooms. The government presented evidence of drugs, drug paraphernalia, and photos of drugs and drug paraphernalia taken from Medrano’s motel rooms. In addition to Medrano’s acts and declarations, the acts and declarations of co-conspirators inculpated him where they were done in furtherance of the objects of the conspiracy, were done during the existence of the conspiracy, and were reasonably foreseeable. United States v. Santiago, 582 F.2d 1128, 1143 (7th Cir. 1978) For example, postal employees and inspectors testified about how co-conspirators used the post office to further their conspiracy. To corroborate that testi- mony, the government presented postal service tracking re- ports and receipts, as well as photos of drugs in postal boxes. Such acts, although not done by Medrano, implicate him and were used as evidence against him at trial. * * * The disputed exhibit was one small piece of the substantial physical, electronic, and testimonial evidence supporting a conviction against Medrano on the drug count. Even assum- ing the district court erred in admitting the exhibit, any error was harmless. Accordingly, we AFFIRM the judgment of the district court.