In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

Nos. 20-2167 & 20-2366 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

XAVIER ELIZONDO & DAVID SALGADO, 

Defendants-Appellants. 

____________________ 

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:18-cr-286 — Matthew F. Kennelly, Judge. 

____________________ 

ARGUED SEPTEMBER 22, 2021 — DECIDED DECEMBER 21, 2021 

____________________ 

Before SYKES, Chief Judge, and FLAUM and BRENNAN, Circuit 

Judges. 

BRENNAN, Circuit Judge. Chicago Police Officers Xavier 

Elizondo and David Salgado used their positions to embezzle 

drugs and cash, some of which they distributed to informants.

As part of their scheme, they encouraged informants to 

present false information to state judges to obtain search 

warrants, which in turn yielded more drugs and cash. The FBI 

caught on and initiated sting operations. The first sting failed 
2 Nos. 20-2167 & 20-2366 

because officers discovered security cameras the FBI had set 

up at a vacant apartment, leading the defendants to inventory 

the full amount of money they recovered there. After seeking 

and obtaining court authorization to wiretap Elizondo’s 

phone, the FBI conducted another sting operation. In the 

second sting agents recorded Elizondo and Salgado stealing 

cash they recovered from an FBI-controlled rental vehicle. 

Salgado saw law enforcement towing the rental vehicle the 

next day, and he told Elizondo, who in turn instructed

Salgado to “relocate” items from Salgado’s home. 

A grand jury indicted Elizondo and Salgado on conspiracy 

and theft charges related to their scheme. Elizondo was also 

charged with obstruction of justice for instructing Salgado to 

destroy or conceal evidence. They went to trial and a jury 

found them guilty on all counts. Elizondo and Salgado 

appeal: (1) the use of the evidence obtained from the 

government’s wiretap application; (2) the district court’s 

Batson inquiry during jury selection; (3) the sufficiency of 

evidence on the obstruction charge; and (4) the district court’s 

calculation of the intended loss under the Sentencing 

Guidelines. 

We find no reversible error. The wiretap application was 

not an improper subterfuge search because the government 

was forthright about the scope of its investigation. Likewise, 

we can trace the logic of the district court’s Batson inquiry, and 

that court followed the applicable steps. The evidence 

presented at trial on the obstruction charge was sufficient for 

the jury to infer that Elizondo acted with the intent to prevent 

the use of evidence in an official proceeding. Finally, there 

was no clear error in the district court’s loss calculation at 
Nos. 20-2167 & 20-2366 3

sentencing. We therefore affirm Elizondo and Salgado’s 

convictions and sentences.

I.

A. Factual Background

The criminal scheme. Elizondo and Salgado were Chicago 

Police Department (“CPD”) officers assigned to the 10th 

district team that worked gang and narcotics investigations 

for an area of the city’s west side. Elizondo was the team’s

sergeant, which afforded him supervisory responsibilities. 

Officers embedded with gang teams proactively investigate 

crimes and develop relationships with confidential 

informants, wearing civilian clothes to blend in with their 

surroundings. They also investigate, prepare, and obtain 

search warrants based on the informants’ anonymous tips. 

Between mid-2017 and January 2018, Elizondo and 

Salgado used their positions as gang-team officers to steal 

cash and drugs from search locations. They distributed 

portions of the proceeds to informants. The two officers also 

encouraged informants to supply false information to state

judges to obtain search warrants, which they then executed, 

stealing portions of the proceeds from those searches. 

The investigation’s origins. In late 2017, after receiving 

information about alleged corrupt activity, the FBI began 

investigating Elizondo and Salgado’s CPD unit. Jeffrey 

Owens, who went by the nickname “Cuba,” had been 

working with the FBI as a confidential source on other 

investigations. Cuba served as the FBI’s confidential 

informant in this investigation. Antwan Davis—an 

acquaintance of Cuba’s who FBI agents believed had a 

relationship with corrupt CPD officers—introduced Cuba to 
4 Nos. 20-2167 & 20-2366 

Elizondo and Salgado. The FBI recorded conversations 

between Cuba and Davis, in which Cuba sought to obtain 

information about the officers. 

The Maplewood apartment ruse. At the FBI’s direction, Cuba 

told Elizondo and Salgado about a “drug stash house” where

he claimed large quantities of illegal narcotics were kept. But 

the FBI had set up a sting operation. No drugs were placed at 

the “stash house,”—an apartment located on Maplewood 

Avenue. Instead, in December 2017, FBI agents placed $15,000 

in cash at the apartment and equipped it with surveillance 

cameras. Elizondo spoke to Cuba, offering to search the 

apartment and give Cuba and Davis a portion of the items 

recovered. Elizondo and Salgado obtained a search warrant 

by arranging for Davis to provide false information to a state

judge. 

On December 20, 2017, Elizondo, Salgado, and several 

other officers raided the Maplewood apartment. Salgado 

recovered the $15,000 in cash that the FBI had planted. The 

CPD officers executing the search also discovered the hidden 

surveillance cameras and disconnected them. So the officers 

inventoried the $15,000 and did not steal any of it. On 

December 28, 2017, Elizondo told Cuba that he and his team 

had inventoried the full amount of cash recovered from the 

apartment because the cameras had recorded the officers’

search. Per Elizondo, “if they didn’t find the cameras, it would 

have been a good Christmas for everybody.” 

The initial Title III application and order. Next, on January 24, 

2018, the government sought court authorization to intercept 

wire and electronic communications over Elizondo’s phone 

under Title III of the Omnibus Crime Control and Safe Streets 

Act of 1968. The government made its application to the Chief 
Nos. 20-2167 & 20-2366 5

Judge of the United States District Court for the Northern 

District of Illinois, who has responsibility for such matters in 

that district. To support its request for a wiretap, the 

government included the affidavit of FBI Special Agent Marc 

Recca. In his affidavit, Agent Recca stated that the requested 

wiretap concerned offenses involving the distribution of 

narcotics (21 U.S.C. § 841), conspiracy to distribute narcotics 

(21 U.S.C. § 846), and wire fraud (18 U.S.C. § 1343). Each of 

those statutes is a predicate under Title III. See 18 U.S.C. 

§ 2516(1)(c), (e). 

The affidavit described the scope of the government’s 

investigation to the Chief Judge:

[t]he FBI is investigating allegations that CPD 

officers ... including ELIZONDO and 

SALGADO, are engaged in a corrupt scheme to: 

(1) steal and embezzle evidence—namely, 

narcotics and money—recovered during 

searches conducted pursuant to their duties as 

sworn law enforcement officers; and (2) provide 

false information to judges in support of search 

warrants as a means to fraudulently obtain 

property.

The Chief Judge granted the government’s application for a 

Title III order on January 24, 2018. The government 

intercepted Elizondo’s phone conversations between January 

24, 2018, and January 31, 2018. 

The rental-vehicle ruse. At the FBI’s direction, Cuba told 

Elizondo on January 28, 2018—four days into the wiretap of

Elizondo’s phone—that a drug dealer was storing drugs and 

cash in a vehicle near Midway Airport on Chicago’s 
6 Nos. 20-2167 & 20-2366 

southwest side. The vehicle was in fact an FBI-controlled 

rental car in which agents had placed $18,200 in cash. That 

night, Elizondo and Salgado, along with two other officers,

arrived at the vehicle’s location and searched the car. 

Elizondo discovered the cash, which was hidden in the right 

compartment of the trunk. He showed the cash only to 

Salgado, not the other officers, and he conferred with Salgado 

privately. Next, Elizondo directed the other officers to move 

the rental vehicle to a nearby warehouse parking lot to 

continue the search, not a usual CPD practice. There, Salgado 

took the cash from the trunk, and Elizondo placed it in his 

CPD vehicle. Later that evening, Elizondo called Salgado and 

told him, “[w]e’re good.” The officers inventoried only 

$14,000 of the $18,200 seized from the rental vehicle. 

The obstruction of justice. On January 29, 2018, CPD Internal 

Affairs Lieutenant Timothy Moore—who was detailed as an 

FBI task force officer—and FBI Special Agent Robert Leary 

went to CPD’s Homan Square facility to recover the 

inventoried $14,000 and the rental vehicle used in the 

previous night’s operation. Moore and Leary called a tow 

truck for the car, and Salgado approached them in the parking 

lot. Moore identified himself as being from the CPD’s Internal 

Affairs Division, and he stated he would be in contact with 

Salgado. 

Now worried, Salgado called Elizondo and told him CPD 

Internal Affairs had towed the vehicle. Elizondo asked, “you 

know what to do, right?” Salgado responded, “Yeah.” 

Elizondo said, “Just relocate everything, alright?” Salgado 

responded, “Huh?” Elizondo replied, “Just relocate 

everything[,] you know?” Salgado responded in the 

affirmative. Less than ten minutes later, Salgado called back 
Nos. 20-2167 & 20-2366 7

and Elizondo told him to “just make sure, whatever you have 

in your house isn’t there no more, you know what I mean?” 

Salgado responded, “Yeah, yeah.” He asked Elizondo where 

to put the items that were in his house, to which Elizondo 

responded, “I don’t know[.]” 

Salgado then traveled from Homan Square to his home, 

where he stayed briefly. Elizondo and Salgado both deleted 

call records from their cellphones over the next twelve hours, 

including records of the calls in which Elizondo instructed 

Salgado to remove items from his home. 

Elizondo’s subsequent conversations. After speaking with 

Salgado, Elizondo had several conversations with other 

individuals that revealed he believed he was under criminal 

investigation. In one conversation, Elizondo spoke to Davis 

and asked about Cuba’s identity and legal name because “it 

seems a little odd he says there’s gonna be drugs and money 

there when we go there and it’s just money, you know?” 

Around the same time—about 20 minutes after the last 

recorded call in which he instructed Salgado to remove or 

conceal evidence—Elizondo spoke to CPD officer Mike 

Karczewski, telling him that the incident with the rental

vehicle involved the FBI. 

A few minutes later, Salgado called Elizondo and told him 

Moore was with the Confidential Matters unit of CPD Internal 

Affairs, which investigates criminal activity by police officers. 

Elizondo speculated that he and Salgado were the targets of 

an investigation “because we do so many search warrants[.]”

Later that night, Elizondo also spoke by phone with CPD 

officer Jose Lopez. Elizondo told Lopez that law enforcement 

had “planted” money “in the car last night.” Further, 

Elizondo stated that Cuba was obviously “working with the 
8 Nos. 20-2167 & 20-2366 

feds.” Lopez confirmed he shared Elizondo’s suspicion, 

noting “with money that big it’s gonna be the–it’s gonna be 

the feds.” Elizondo speculated the investigation was 

specifically by the “FBI, group public corruption, I’m 

assuming.” 

The post-interception Title III application and order. The next 

day, on January 30, 2018, the government requested judicial 

authorization to use intercepted communications to 

prosecute offenses including embezzlement, theft, 

conspiracy, and obstruction of justice, asserting that the 

communications were intercepted “incidentally and in good 

faith during the course of the interceptions conducted 

pursuant to the Interception Order” under 18 U.S.C. § 2517(5). 

The Chief Judge agreed and granted the government’s postinterception application that same day. 

B. Procedural History

The grand jury returned an indictment charging Elizondo 

and Salgado with conspiracy to embezzle, steal, and misapply 

property in CPD custody, in violation of 18 U.S.C. § 371, and 

theft of federal funds, in violation of 18 U.S.C. § 641. Salgado 

was also charged with making a materially false statement to 

a federal agent. Both defendants pleaded not guilty. 

Elizondo moved to suppress the communications the FBI 

had intercepted by wiretap, arguing the government had 

engaged in a subterfuge search by seeking a Title III order to 

intercept communications related to narcotics and wire-fraud 

offenses but instead investigating offenses that were not 

predicates under Title III. The government opposed, and in its 

written opinion and order the district court denied the

motion. The court concluded that the government’s citation to 
Nos. 20-2167 & 20-2366 9

the narcotics and wire-fraud statutes was not a subterfuge 

because at the time of the wiretap application there was 

probable cause to believe Elizondo would violate each set of 

statutes. 

Elizondo and Salgado were then charged in a seven-count 

superseding indictment. Counts One, Two, and Three 

charged both defendants with conspiracy to embezzle, steal, 

and misapply property; conspiracy against Fourth 

Amendment rights; and theft of federal funds, respectively.

Count Four charged Elizondo with attempting to corruptly 

persuade Salgado to destroy or conceal an object for use in an 

official proceeding—the federal grand jury investigation—in

violation of 18 U.S.C. § 1512. Count Five charged Salgado with 

making a materially false statement to a federal agent by 

telling an FBI agent that he did not remember whether he 

returned home on January 29, 2018. Finally, Counts Six and 

Seven charged both Elizondo and Salgado, respectively, with 

altering or destroying a record with intent to impede, 

obstruct, and influence the investigation and administration 

of a matter within the FBI’s jurisdiction. Both defendants 

proceeded to trial together. 

At jury selection, the district judge raised, sua sponte, a 

Batson challenge, stating that one of Elizondo’s attorneys

engaged in a pattern of striking black prospective jurors. The 

judge noted there were twelve black prospective jurors 

among the 58 members of the venire panel. Of the twelve, four 

were excused for cause or hardship, leaving eight black 

members of the venire panel—three of which were far enough 

down the list that it was highly unlikely any of them would 

be seated on the jury. That left five black prospective jurors 

with a greater likelihood of being seated. Defense counsel had 
10 Nos. 20-2167 & 20-2366 

used peremptory strikes to exclude each of them. After 

hearing the attorneys’ positions on the matter, the district 

judge sustained the Batson challenge and overruled the 

peremptory strike of Juror No. 14, who was black and seated 

on the jury. 

During trial, the government presented evidence of the 

defendants’ scheme, including the testimony of informants 

who worked with Elizondo and Salgado. The government 

played Title III intercepts and excerpts of conversations 

between Cuba and Elizondo and Davis, which Cuba had 

consensually recorded (that is, with one party’s consent) at 

the FBI’s direction. In those recordings, Davis discussed the 

defendants’ scheme, and Elizondo explained the decision to 

inventory the full $15,000 seized from the Maplewood 

apartment. Two FBI agents testified they had worked with 

Elizondo while he was detailed to the FBI, where grand juries 

were empaneled at the beginning of an investigation and 

before a confidential source was deployed. At the close of the 

nine-day trial, the jury convicted Elizondo and Salgado on all 

counts. 

At Elizondo and Salgado’s sentencing hearings, the 

government objected to the probation department’s loss 

calculation, comprised of the $4,200 the defendants 

misappropriated during the rental-vehicle ruse, plus the 

value of cash and other items taken on other occasions. The 

government contended the aggregate intended loss exceeded 

$6,500. The district court sustained the government’s 

objections and found by a preponderance of the evidence that 

the government had shown the intended loss was between 

$6,500 and $15,000. Elizondo was sentenced to 87 months’ 
Nos. 20-2167 & 20-2366 11

imprisonment, and Salgado was sentenced to 71 months’ 

imprisonment. Both defendants timely appealed. 

II. 

Section (A) below covers the government’s application for 

a Title III order and Elizondo’s motion to suppress the 

recordings obtained as a result of that order. In Section (B), we 

evaluate defendants’ challenges to the district court’s juryselection procedures, including its Batson inquiry. Section (C) 

addresses Elizondo’s appeal from the denial of his motion for 

a judgment of acquittal on the obstruction charge. Finally, 

Section (D) analyzes the defendants’ objections to the district 

court’s calculation of the intended loss under the Sentencing 

Guidelines. 

A. Title III Application and the Motion to Suppress 

We begin with Elizondo and Salgado’s challenge to the 

legality of the government’s application for a wiretap and the 

denial of Elizondo’s motion to the suppress the evidence so 

obtained. “[W]e review the district court’s factual findings for 

clear error and its conclusions of law de novo.” United States 

v. Santiago, 905 F.3d 1013, 1018 (7th Cir. 2018) (citation 

omitted). 

Title III enumerates a list of offenses that allow the 

government to apply for an order to intercept 

communications “when such interception may provide or has 

provided evidence of” the specified crimes. 18 U.S.C. 

§ 2516(1). Narcotics-distribution and wire-fraud offenses are 

predicate crimes under Title III, but the crimes with which 

Elizondo and Salgado were charged—including conspiracy to 

embezzle and steal property, conspiracy to violate
12 Nos. 20-2167 & 20-2366 

constitutional rights, and theft of federal funds—are not. See

18 U.S.C. § 2516(1)(c), (e).

A judge may enter an ex parte order for the interception of 

communications if (a) there is probable cause to believe the 

target is committing or will commit an enumerated offense; 

(b) there is probable cause to believe “particular 

communications concerning that offense will be obtained 

through such interception”; and (c) “normal investigative 

procedures have been tried and have failed or reasonably 

appear to be unlikely to succeed if tried or to be too 

dangerous.” 18 U.S.C. § 2518(3)(a)-(c). 

Under 18 U.S.C. § 2517(5), communications related to nonenumerated offenses may be used so long as the government 

makes a timely post-interception application to a judge and 

the communications are “otherwise intercepted in accordance 

with” Title III’s provisions. In United States v. Arnold, this 

court stated that “[t]he post-interception application 

requirement of § 2517(5)” prevents “subterfuge searches.” 773 

F.2d 823, 829 (7th Cir. 1985); see also In re Grand Jury Subpoena 

Served on Doe, 889 F.2d 384, 388 (2d Cir. 1989) (same). That is, 

18 U.S.C. § 2517(5) prevents the government applicant for a 

Title III order from “nam[ing] one crime while in fact he may 

have anticipated intercepting evidence of a different crime for 

which the prerequisites could not be satisfied.” Arnold, 773 

F.2d at 829 (quoting United States v. Marion, 535 F.2d 697, 700–

01 (2d Cir. 1976)); accord United States v. Campagnuolo, 556 F.2d 

1209, 1213 (5th Cir. 1977) (same). 

By its terms, Title III contains no requirement that the 

interception of communications related to non-enumerated 

offenses must be inadvertent—taking the government by 

surprise—rather than merely incidental. See United States v. 
Nos. 20-2167 & 20-2366 13

Goffer, 721 F.3d 113, 122–23 (2d Cir. 2013); United States v. 

Rajaratnam, No. 09-CR-1184-RJH, 2010 WL 4867402, at *5 

(S.D.N.Y. Nov. 24, 2010), aff’d, 719 F.3d 139 (2d Cir. 2013). Title 

III’s failure to require inadvertent interception as a 

prerequisite to the later use of communications relating to 

non-enumerated offenses is significant, as “absent 

provision[s] cannot be supplied by the courts.” ANTONIN

SCALIA & BRYAN A. GARNER, READING LAW: THE 

INTERPRETATION OF LEGAL TEXTS 94 (2012); Rotkiske v. Klemm, 

140 S. Ct. 355, 360–61 (2019). Rather, given the lack of 

statutory language to the contrary, the government may use 

communications intercepted incidentally upon a proper postinterception application. And “[e]vidence of crimes other 

than those authorized in a wiretap warrant are intercepted 

‘incidentally’ when they are the by-product of a bona fide 

investigation of crimes specified in a valid warrant.” United 

States v. McKinnon, 721 F.2d 19, 23 (1st Cir. 1983).

Here, we agree with the district court that the government

did not engage in a subterfuge search because it was 

forthright in its application for a wiretap. The government 

described the scope of its investigation when it applied for a 

Title III order, and it did not conceal anything material. Thus, 

the wiretap was not a subterfuge search, and the 

communications at issue were “otherwise intercepted in 

accordance with” Title III. 18 U.S.C. § 2517(5). 

In applying for the Title III order to intercept Elizondo’s

communications, the government detailed its investigation as 

follows: 

[t]he FBI is investigating allegations that CPD 

officers ... including ELIZONDO and 

SALGADO, are engaged in a corrupt scheme to: 
14 Nos. 20-2167 & 20-2366 

(1) steal and embezzle evidence—namely, 

narcotics and money—recovered during 

searches conducted pursuant to their duties as 

sworn law enforcement officers; and (2) provide 

false information to judges in support of search 

warrants as a means to fraudulently obtain 

property.

Although the government explained it anticipated 

intercepting communications that would constitute evidence 

of drug trafficking and wire fraud, it did not limit its 

investigation to those offenses. Rather, the government

described the contours of the criminal scheme it was probing 

and applied for a wiretap to uncover additional evidence of 

that scheme. The Chief Judge was not misled into granting the 

application for a wiretap order.

Several of the crimes with which the defendants were 

charged—conspiracy to embezzle and steal property, 

conspiracy to violate Fourth Amendment rights, and theft of 

federal funds—are offenses for which it is foreseeable that the 

investigation the government described in its initial wiretap 

application would yield evidence. Title III does not prohibit 

the use of incidentally-obtained wiretap evidence to 

prosecute those offenses, as a suspect is not “insulated from 

evidence of one of his illegal activities gathered during the 

course of a bona fide investigation of another of his illegal 

activities merely because law enforcement agents are aware 

of his diversified criminal portfolio.” McKinnon, 721 F.2d at 

23. 

The wiretap ultimately revealed evidence related to 

crimes Elizondo and Salgado committed in connection with 

the cover-up of the underlying embezzlement offenses. 
Nos. 20-2167 & 20-2366 15

Likewise, the interception of such evidence was incidental 

and not a subterfuge because Elizondo and Salgado have not 

shown that collecting evidence related to the cover-up 

offenses was the government’s true objective in applying for 

a wiretap. See McKinnon, 721 F.2d at 22–23; Arnold, 773 F.2d at 

829. Instead, the record establishes that the government 

sought to use the wiretap to uncover evidence that the 

defendants were engaged in the illegal distribution of 

narcotics. 

Although Elizondo and Salgado contend otherwise, there 

was probable cause to believe the wiretap would intercept 

communications proving that they were violating Title IIIpredicate narcotics offenses. In conversations that the FBI

consensually recorded before it obtained the initial Title III 

order—and that were recounted in the government’s initial 

application—Elizondo described giving informants a cut of 

the drugs and cash that he and other CPD officers obtained 

during searches for which those informants provided tips. 

According to Agent Recca’s affidavit, Elizondo explained he 

had to inventory the $15,000 in cash recovered during the 

December 20, 2017 search because the security cameras had 

recorded the officers. 

We conclude the government has shown that the rentalvehicle ruse was designed in part to elicit further and more 

conclusive evidence of drug-trafficking activity than the 

evidence the government had at its disposal when it applied 

for the initial Title III order. At the FBI’s direction, Cuba told 

Elizondo that the rental vehicle contained narcotics, and 

Elizondo later confirmed that was his understanding in a 

recorded call. It was foreseeable that the ruse could have led 

Elizondo to make unambiguous statements about his plan to 
16 Nos. 20-2167 & 20-2366 

distribute drugs. That the wiretap did not record Elizondo 

making such statements has little bearing on our inquiry in 

this context. 

Elizondo and Salgado argue the government could have 

designed other sting operations to elicit stronger evidence of 

their drug-trafficking activity, but we are not persuaded. The 

the government could have used alternative investigative 

techniques, but that is not sufficient to show the Title III 

application was an improper subterfuge search. Moreover, 

Agent Recca’s affidavit explained that the use of sham 

narcotics would create a significant risk to the government’s 

objectives: if Elizondo or others were to field test those 

narcotics, they would likely deduce a sting operation was in 

progress and therefore take further steps to avoid detection. 

We find no error in the government’s application for a 

Title III wiretap order or the district court’s application of the 

law to the facts Elizondo adduced. So, we affirm the denial of 

his motion to suppress the fruits of that wiretap.

B. Jury Selection and the Batson Inquiry

We turn next to defendants’ assertions that the district 

court erred during jury selection. They advance two related 

contentions: first, that the district court improperly shifted the 

burden applicable to Batson challenges, and second, that the 

jury-selection proceedings were unreasonably rushed. We 

examine the Batson issue first.

Before addressing the district court’s Batson inquiry, we 

recognize the parties’ dispute over the applicable standard of 

review on this question. The defendants ask for de novo 

review of the district court’s Batson procedure, and the 

government argues for plain error review because the 
Nos. 20-2167 & 20-2366 17

defendants did not object to that procedure. Although the 

defendants argue they were not required to formally object 

under Federal Rule of Criminal Procedure 51, their 

contentions before that court went to the merits of the Batson

analysis rather than to how it proceeded. That would counsel 

reviewing the district court’s Batson inquiry for plain error.

See United States v. Heron, 721 F.3d 896, 901–02 (7th Cir. 2013) 

(where a defendant fails to alert the trial court of the specific 

grounds for an objection under Batson, our review is only for 

plain error); accord United States v. Gooch, 665 F.3d 1318, 1330–

32 (D.C. Cir. 2012) (discussing the application of plain error 

review where Batson objections are not properly raised with 

the district court).

Even if we were to conclude otherwise, though, we would 

still review the district court’s Batson findings for clear error 

and owe great deference to its credibility determinations. See 

United States v. Lovies, 16 F.4th 493, 500 (7th Cir. 2021) (citing 

United States v. Cruse, 805 F.3d 795, 806 (7th Cir. 2015); United 

States v. Rutledge, 648 F.3d 555, 558 (7th Cir. 2011)). “Deference 

is necessary because a reviewing court, which analyzes only 

the transcripts from voir dire, is not as well positioned as the 

trial court to make credibility determinations.” Rutledge, 648 

F.3d at 558 (quoting Miller-El v. Cockrell, 537 U.S. 322, 339 

(2003)). Accordingly, we will affirm unless we “arrive at a 

definite and firm conviction that a mistake has been made.” 

Cruse, 805 F.3d at 806. 

A Batson challenge requires the opponent of a peremptory 

strike to show that the strike’s proponent acted with a racially 

discriminatory intent. Lovies, 16 F.4th at 499 (citing Cruse, 805 

F.3d at 806). A challenge proceeds in three steps. At the first 

step, the challenger must make a prima facie case that the 
18 Nos. 20-2167 & 20-2366 

peremptory strike was racially motivated. Cruse, 805 F.3d at 

806 (citing Snyder v. Louisiana, 552 U.S. 472, 476 (2008)). This 

low burden requires “only circumstances raising a suspicion 

that discrimination occurred.” Id. at 807 (quoting United States 

v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005) (“Stephens I”)). If 

the challenger meets his burden at step one, the second step 

requires the strike’s proponent to articulate a nondiscriminatory reason for the strike. United States v. Stephens, 

514 F.3d 703, 710 (7th Cir. 2008) (“Stephens II”). The district 

court does not consider the persuasiveness of the justification 

for the peremptory strike at step two. Id. (citing Purkett v. Elem, 

514 U.S. 765, 767–68 (1995)); see also Lovies, 16 F.4th at 500. 

At the third and final step, the trial court determines 

“whether the opponent of the strike has carried his burden of 

proving purposeful discrimination.” Cruse, 805 F.3d at 807 

(quoting Johnson v. California, 545 U.S. 162, 171 (2005)). 

Because the relevant question at step three is whether a strike 

was racially motivated, a trial judge must “assess the 

honesty—not the accuracy—of a proffered race-neutral 

explanation.” Id. at 808 (quoting Lamon v. Boatwright, 467 F.3d 

1097, 1101 (7th Cir. 2006)) (emphasis in original). “The trial 

court may consider all relevant circumstances when assessing 

the honesty of a proffered explanation for a peremptory 

strike, including interpreting the demeanor of the attorney 

who initiates the strike and evaluating the explanation’s 

plausibility with reference to its basis in accepted trial 

strategy.” Lovies, 16 F.4th at 500 (internal quotation marks and 

citations omitted).

The district court’s application of Batson here met the 

requirements of that case and its successors. Although the 

trial judge’s decision to sua sponte raise the Batson challenge 
Nos. 20-2167 & 20-2366 19

was unorthodox—a point to which we return later—

defendants have not directed us to a cognizable legal error in 

the district court’s application of the Batson framework. The 

district court followed each of the applicable steps and 

determined, at the third and final step, that the reason

Elizondo’s attorney offered for striking Juror No. 14 was a 

pretext for racial discrimination. Given the deference we owe 

to the trial judge’s determinations, we cannot conclude that a 

mistake has been made, so we affirm the trial court’s decision 

to sustain its own Batson challenge. Further, any error in 

sustaining the challenge was harmless because Elizondo and 

Salgado do not contest Juror No. 14’s impartiality. 

During voir dire, the trial judge observed that five of 

Elizondo’s seven peremptory strikes were to black members 

of the venire panel. Of the five black prospective jurors 

remaining under consideration, Elizondo exercised his 

peremptory challenges against each one. This was enough to 

meet the low burden at Batson step one. See Stephens I, 421 F.3d

at 512; United States v. McMath, 559 F.3d 657, 664 (7th Cir. 

2009). It constituted a “pattern of strikes” that gave rise to “an 

inference of intentional discrimination.” Anderson v. Cowan, 

227 F.3d 893, 901–02 (7th Cir. 2000); see also Batson v. Kentucky, 

476 U.S. 79, 96–97 (1986). 

We understand the defendants to argue the district court 

sustained the Batson challenge at step two, impermissibly

shifting the burden to defense counsel and finding that they 

failed to offer a race-neutral reason for striking the potential 

jurors. But their assertion is not supported by the record. 

The reason that defense counsel gave for striking Juror No. 

14 was that juror had prior negative experiences with lawenforcement officers. Under case law, that was a sufficient 
20 Nos. 20-2167 & 20-2366 

race-neutral reason to meet the requirements of step two. See 

Stephens II, 514 F.3d at 710–11 (a reason need only be race 

neutral, not necessarily persuasive in any way, to pass step 

two). Although we encourage district courts to carefully

delineate between each Batson step, Lovies, 16 F.4th at 503–04, 

there is no rigid requirement that a trial judge declare on the 

record that step two has been satisfied before proceeding to 

step three. Nor do Elizondo and Salgado cite any authority to 

support such a proposition. 

On the third and final step, the district court’s procedure 

also was adequate. The court asked defense counsel to 

differentiate Juror No. 14 from two of the non-stricken white 

members of the venire panel who discussed similar negative 

experiences with law enforcement. As the government urges,

defense counsel was so prompted because the race-neutral 

explanation for striking Juror No. 14 was initially found not 

to be credible. But the defense was then offered another 

opportunity to bolster its explanation for the strike. At this 

point, the trial judge was tasked with deciding whether the

burden of proving purposeful discrimination had been 

carried, considering the persuasiveness of the justification 

that counsel provided, whether that justification had any 

basis in accepted trial strategy, and the attorney’s demeanor. 

See Cruse, 805 F.3d at 807; Lovies, 16 F.4th at 500. 

The judge determined that the differences between Juror 

No. 14 and the non-stricken white jurors were pretextual. He 

explained, “I don’t think you’ve justified the difference 

between [Juror No. 14] and other similarly situated people. I 

think the challenge has been exercised because of the person’s 

race.” In applying step three of the Batson inquiry, the district 
Nos. 20-2167 & 20-2366 21

court evaluated the justification for the strike, finding it 

lacking and pretextual. 

The trial court’s application of the Batson framework was 

not erroneous. A trial court may infer discriminatory intent 

where it determines the proffered justification for a 

peremptory strike is pretextual. Cruse, 805 F.3d at 807 (citing 

Snyder, 552 U.S. at 485). “If [the strike proponent’s] proffered 

reason for striking a black panelist applies just as well to an 

otherwise-similar nonblack who is permitted to serve, that is 

evidence tending to prove purposeful discrimination to be 

considered at Batson’s third step.” United States v. Taylor, 636 

F.3d 901, 905 (7th Cir. 2011) (“Taylor III”) (quoting Miller-El v. 

Dretke, 545 U.S. 231, 241 (2005)). As arbiter of the Batson

challenge, the trial judge concluded the reason offered for 

striking Juror No. 14—that juror’s negative experience with 

police officers—applied just as well to otherwise-similar 

white panelists who were permitted to serve on the jury. After 

finding pretext, the judge concluded that the burden of 

proving purposeful discrimination had been carried and 

sustained the challenge. That was a proper application of 

Batson’s framework. 

A district court’s finding of pretext is reviewed for clear 

error, and we cannot reach a definite and firm conviction that 

a mistake has been made on this factual record. See Cruse, 805 

F.3d at 806; United States v. Hunter, 932 F.3d 610, 617 (7th Cir. 

2019). So, we affirm the district court’s decision to sustain the 

Batson challenge.

Elizondo and Salgado also argue the district court erred 

by rushing jury selection. They contend that the flaws in the

district court’s Batson procedures and the hurried voir dire 
22 Nos. 20-2167 & 20-2366 

process, individually and combined, created structural error 

that entitles them to a new trial. 

We disagree on both counts and conclude that any error 

was harmless. First, we see no basis for the assertion that jury 

selection was unreasonably rushed. The process lasted an 

entire day, and the district court thoroughly questioned jurors 

to ensure they were fair, impartial, and qualified to serve. A 

trial court does not err when it requires attorneys to make 

peremptory strikes and explain them in a timely fashion. 

Next, the defendants’ allegation of structural error in the 

district court’s Batson analysis is foreclosed by Rivera v. 

Illinois, 556 U.S. 148 (2009). Rejecting a contention similar to 

the one here, the Supreme Court reasoned that the only right 

at stake is the defendant’s right to a fair trial before an 

impartial jury. See id. at 157–58. The mistaken denial of a 

peremptory challenge does not itself violate a defendant’s 

constitutional rights. See id. at 158, 160. 

This court and other circuits have held that under Rivera, 

harmless-error analysis applies to claims of an allegedly 

erroneous denial of a peremptory challenge. Jimenez v. City of 

Chicago, 732 F.3d 710, 714–16 (7th Cir. 2013); accord United 

States v. Bowles, 751 F.3d 35, 38–39 (1st Cir. 2014); United States 

v. Williams, 731 F.3d 1222, 1236–37 (11th Cir. 2013). The error 

is harmless if the party whose peremptory strike was 

overruled cannot show that the juror seated as a result of that 

ruling was biased. See Jimenez, 732 F.3d at 714–16. 

Elizondo and Salgado do not argue Juror No. 14 was 

biased against them. Because they do not challenge the 

impartiality of this or any other juror, any error was harmless.

The defendants point to the Sixth Circuit’s decisions in United 
Nos. 20-2167 & 20-2366 23

States v. McFerron, 163 F.3d 952 (6th Cir. 1998), and United 

States v. Kimbrel, 532 F.3d 461 (6th Cir. 2008), which held that

the erroneous denials of peremptory challenges in those cases

were structural errors. But these out-of-circuit cases predate 

Rivera and do not bind us. The facts in McFerron and Kimbrel

also diverge from the facts here in an important way. In those 

cases, the district courts incorrectly stated that the 

defendants—the proponents of peremptory strikes—had the 

burden of persuasion at Batson step three. See McFerron, 163 

F.3d at 953–54; Kimbrel, 532 F.3d at 467. In contrast, the district 

judge here did not state that the defense had the burden of 

persuasion at Batson step three. So McFerron and Kimbrel are 

not applicable.

Nor is this case like United States v. Harbin, 250 F.3d 532 

(7th Cir. 2001), on which the defendants ask us to rely. In 

Harbin, the government—but not the defendant—was 

permitted to exercise a peremptory challenge on the sixth day 

of an eight-day trial. Id. at 547. This court reversed the district 

court and vacated the defendants’ convictions, concluding 

that structural error required reversal because the district 

court’s procedure “gave the prosecutor unilateral, 

discretionary control over the composition of the jury midtrial.” Id. Here, though, the parties had equal opportunities to

exercise their peremptory strikes, which occurred before trial,

so Harbin does not suggest structural error in this case. 

We take this opportunity to emphasize that district courts

should take great care before raising a Batson challenge sua 

sponte. In Doe v. Burnham, 6 F.3d 476 (7th Cir. 1993), we stated 

that “a court should at least wait for an objection before 

intervening in the process of jury selection to set aside a 

peremptory challenge.” Id. at 481. Similarly, this court has 
24 Nos. 20-2167 & 20-2366 

observed that the jury-selection process “is still an adversarial 

one and the case law, including Batson and the cases that 

followed it, make it clear that Batson issues must be raised. 

Batson is not self-executing.” Aki-Khuam v. Davis, 339 F.3d 521, 

527 (7th Cir. 2003) (internal quotation marks and citation 

omitted). 

Elizondo and Salgado concede that district courts have 

authority to raise a Batson challenge sua sponte. We agree. The 

Supreme Court has held that when a trial court excuses jurors 

from service because of their race, state action is present 

“[r]egardless of who precipitated the jurors’ removal.” 

Georgia v. McCollum, 505 U.S. 42, 53 (1992). This is so because 

“[b]y enforcing a discriminatory peremptory challenge, the 

court has not only made itself a party to the [biased act], but 

has elected to place its power, property and prestige behind 

the [alleged] discrimination.” Edmonson v. Leesville Concrete 

Co., 500 U.S. 614, 624 (1991) (internal quotation marks and 

citations omitted). Because racially discriminatory 

peremptory strikes constitute state action regardless of who 

initiates them—and because we have not located contrary 

authority—we conclude that federal trial judges have the 

authority to raise Batson challenges to protect “the integrity of 

the judicial system.” Id. at 628. 

Nevertheless, we reiterate that the best practice is for a 

district court to wait for an objection under Batson rather than 

to raise an objection on its own. “Judges should invade a 

party’s discretion to strike potential jurors only in narrow 

circumstances.” Doe, 6 F.3d at 481; accord Bowles, 751 F.3d at 

38 n.1 (“[A] trial judge should rarely engage sua sponte in a 

Batson enquiry absent surrounding circumstances, identified 

by the court on the record, that are strongly suggestive of 
Nos. 20-2167 & 20-2366 25

discrimination.”). When a district judge infers that the juryselection process may indicate racial or gender-based1

discrimination, the judge may initiate a bench conference and 

invite one of the attorneys to raise a challenge under Batson if 

the attorney wishes to do so. 

If a district judge decides to raise Batson sua sponte, the 

judge must take care to ensure that the burden is not shifted 

to a peremptory strike’s proponent. The trial judge must 

meticulously separate the role of Batson challenger from the 

role of neutral arbiter of the challenge. In particular, a judge 

should be careful not to automatically accept his or her own 

rationale at Batson step one. A heightened risk of a judge 

reflexively finding a prima facie case of discrimination at step 

one is present where the judge articulates the reasoning 

behind the challenge and then must also evaluate that same 

rationale. The proponent of a peremptory strike remains 

entitled to a neutral assessment of the proffered prima facie 

case of discrimination and the possibility that that case may 

be rejected if it is insufficient. See Bennett v. Gaetz, 592 F.3d 786, 

791 (7th Cir. 2010); Johnson v. California, 545 U.S. at 170

(observing that the first step under Batson requires the 

challenger to present “evidence sufficient to permit the trial 

judge to draw an inference that discrimination has 

occurred”). 

C. Obstruction Charge and Sufficiency of the Evidence

Next, we turn to Elizondo’s challenge to the sufficiency of 

the evidence on Count Four, the obstruction charge. He 

moved for acquittal as a matter of law under Federal Rule of 

1 In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Supreme Court 

extended the Batson framework to gender-based discrimination. 
26 Nos. 20-2167 & 20-2366 

Criminal Procedure 29(c), arguing there was insufficient 

evidence from which to infer that he foresaw a particular 

official proceeding when he instructed Salgado to destroy or 

conceal evidence. Rejecting his argument, the district court 

denied Elizondo’s motion, which he renews on appeal. 

We review the denial of a Rule 29 motion de novo and ask 

whether, after viewing the evidence in the light most 

favorable to the government, “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); 

see also United States v. Torres-Chavez, 744 F.3d 988, 993 (7th 

Cir. 2014) (quoting Jackson, 443 U.S. at 319). “[D]eference to 

the jury’s deliberations prevents us from assessing the quality 

of the evidence.” United States v. Godinez, 7 F.4th 628, 638 (7th 

Cir. 2021). “We respect the exclusive function of the jury to 

determine the credibility of witnesses, resolve evidentiary 

conflicts, and draw reasonable inferences.” Id. at 638–39 

(citation omitted). Accordingly, when reviewing a 

defendant’s appeal of the denial of his Rule 29 motion, we 

“draw all reasonable inferences in the light most favorable to 

the prosecution.” United States v. Niggemann, 881 F.3d 976, 980 

(7th Cir. 2018); see also United States v. Coscia, 866 F.3d 782, 795 

(7th Cir. 2017). 

A defendant challenging a jury verdict under Rule 29 

“faces a nearly insurmountable hurdle” because the court 

views the evidence in the light most favorable to the 

government and defers to the jury’s credibility 

determinations. Torres-Chavez, 744 F.3d at 993 (citing United 

States v. Blassingame, 197 F.3d 271, 284 (7th Cir. 1999)). We will 

“overturn the jury’s verdict only when the record contains no 

evidence, regardless of how it is weighed, from which the 
Nos. 20-2167 & 20-2366 27

[factfinder] could find guilt beyond a reasonable doubt.” 

United States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018) 

(internal quotation marks and citations omitted).

Under the federal obstruction statute, anyone who 

“corruptly (1) alters, destroys, mutilates, or conceals a record, 

document, or other object, or attempts to do so, with the intent 

to impair the object’s integrity or availability for use in an 

official proceeding; or (2) otherwise obstructs, influences, or 

impedes any official proceeding, or attempts to do so” 

obstructs justice. 18 U.S.C. § 1512(c). To be convicted of 

obstruction under § 1512(c)(1), a defendant “must believe that 

his acts will be likely to affect a pending or foreseeable 

proceeding.” United States v. Matthews, 505 F.3d 698, 708 (7th 

Cir. 2007) (citing Arthur Andersen LLP v. United States, 544 U.S. 

696, 707 (2005)); accord United States v. Kaplan, 490 F.3d 110, 

125 (2d Cir. 2007) (same). 

Count Four charged Elizondo under 18 U.S.C. 

§ 1512(b)(2)(B) with “corruptly persuad[ing]” Salgado with 

intent to “cause or induce” him to “alter, destroy, mutilate, or 

conceal an object with intent to impair the object’s integrity or 

availability for use in an official proceeding.” 18 U.S.C. 

§ 1512(b). The same standard for foreseeability that governs 

corruption charges under 18 U.S.C. § 1512(c)(1)—a defendant 

must believe his acts will be likely to affect a pending or 

foreseeable proceeding—applies to Elizondo’s charge 

pursuant to 18 U.S.C. § 1512(b)(2)(B). See Matthews, 505 F.3d

at 708. No party contends that a different standard applies. 

Audio recordings and trial testimony provided ample 

evidence to support the jury’s verdict on the obstruction 

charge. Elizondo and Salgado’s conversation immediately 

after the rental vehicle was towed strongly suggests an intent 
28 Nos. 20-2167 & 20-2366 

to destroy or conceal evidence. Salgado told Elizondo that the 

CPD’s Internal Affairs Division had towed the car. Without 

missing a beat, Elizondo instructed Salgado to “[j]ust relocate 

everything.” This evidence shows Elizondo knew an 

investigation into his practices was ongoing, and he 

attempted to obstruct that investigation.

The question Elizondo raises on appeal is whether—at the 

point he instructed Salgado—he knew or foresaw that a 

federal grand-jury proceeding was ongoing. Notably, two FBI 

special agents testified at trial that they worked with Elizondo 

at the FBI, during which time grand juries were empaneled at 

the beginning of an investigation. So, the jury heard testimony 

that Elizondo would have known, based on his prior 

experience, that the FBI’s deployment of a confidential source 

indicated a grand-jury proceeding had been opened.

Evidence the government presented at trial provides the 

necessary link between testimony about Elizondo’s 

knowledge of FBI procedures and his intent when instructing 

Salgado to destroy or conceal evidence. Officer Karczewski 

testified that Elizondo told him the FBI was involved in the 

rental-vehicle incident. This conversation occurred only about 

20 minutes after Elizondo gave his last recorded instruction 

for Salgado to destroy evidence. Later that night, Elizondo 

also told Officer Jose Lopez that Cuba was “[o]bviously ... 

working with the feds” and that task force officer Moore was 

affiliated with the FBI. 

As the government argues, nothing in the record suggests 

that Elizondo learned anything material between the time he 

instructed Salgado to destroy or conceal evidence and the 

times he stated his knowledge or belief that the FBI was 

involved in the investigation of his activities. Although 
Nos. 20-2167 & 20-2366 29

Elizondo disagrees, he has not identified what he could have 

learned between instructing Salgado and speaking with 

Karczewski and Lopez that would have led to his conclusion 

the FBI was investigating him.

Evidence presented at trial supported each step in the 

inferential chain, so the jury could conclude that Elizondo 

foresaw a federal grand-jury proceeding when he instructed 

Salgado to destroy or conceal evidence. It was reasonable for 

the jury to infer that Elizondo’s knowledge of the FBI’s 

involvement arose from his previous experience as an FBI 

task force officer. The jury also could have reasonably inferred

that Elizondo knew the FBI’s use of a confidential source—

and thus a federal grand-jury proceeding—were involved in 

the investigation at the time he instructed Salgado to destroy 

evidence. Drawing reasonable inferences and weighing 

evidence is the jury’s province, so we affirm the denial of 

Elizondo’s Rule 29 motion. See Godinez, 7 F.4th at 638–39, 642.

Even if we were to agree with Elizondo that the jury could 

not have reasonably inferred that he knew or suspected a 

federal grand-jury proceeding was in progress at the time he 

instructed Salgado, we would still affirm the denial of his 

motion for a judgment of acquittal. The obstruction statute 

does not require Elizondo to have had knowledge or a belief 

that a federal proceeding was pending when he told Salgado 

to destroy or conceal evidence. 

Title 18 U.S.C. § 1512(f)(1) states, “[f]or the purposes of 

this section--an official proceeding need not be pending or 

about to be instituted at the time of the offense.” Accordingly, 

the government must prove that a defendant believed his acts 

would “be likely to affect a pending or foreseeable 

proceeding.” Matthews, 505 F.3d at 708; cf. also United States v. 
30 Nos. 20-2167 & 20-2366 

Pugh, 945 F.3d 9, 22 (2d Cir. 2019) (§ 1512’s “nexus 

requirement” is satisfied—and a federal grand-jury 

proceeding is foreseeable—when the defendant is aware he is 

the “target of an investigation”). The jury may not have 

concluded that Elizondo knew that there was an ongoing 

federal grand-jury proceeding when he instructed Salgado to 

destroy or conceal evidence. Rather, the jury may have 

determined that Elizondo believed a federal grand jury might 

be empaneled in the future and acted with the intent to 

prevent or impair such a proceeding. Nevertheless, the jury 

properly convicted him under the obstruction statute.

We expanded on § 1512’s requirement of a foreseeable 

official proceeding in United States v. Johnson, 655 F.3d 594 (7th 

Cir. 2011). Scott Johnson was a large-scale cocaine dealer, and 

law-enforcement agents obtained search warrants and

attempted to search his residence. Id. at 598–99. Johnson’s

girlfriend, Lisa Lamb, prevented the agents from entering the 

residence and disposed of large amounts of cocaine base 

before they could enter. Id. at 599. Lamb was charged with 

and convicted of obstructing justice under 18 U.S.C. 

§ 1512(c)(1). Id. at 602–03. On appeal, she argued there was 

insufficient evidence to prove she believed her actions would 

affect a foreseeable official proceeding. Id. at 605. 

In affirming, this court rejected the argument “that the 

government needed to prove that Lamb knew that her conduct 

would affect a particular official proceeding.” Id. at 606. Given 

the language of 18 U.S.C. § 1512(f)(1), the government 

“simply needed to provide enough evidence that Lamb 

foresaw that the contraband might be used in an official 

proceeding and destroyed it with the intent of preventing that 
Nos. 20-2167 & 20-2366 31

use.” Id. Because the evidence adduced at trial met that 

standard, the obstruction conviction stood. See id. at 606–07.

As in Johnson, here the government needed to present 

enough evidence that Elizondo foresaw that the items he 

instructed Salgado to destroy or conceal might be used in an 

official proceeding and that Elizondo instructed Salgado with 

the intent of preventing such use. The evidence—which 

established Elizondo’s knowledge of federal grand-jury 

practices and his belief that the FBI was investigating him 

about 20 minutes after he last instructed Salgado—was more 

than adequate to permit such a conclusion. 

Johnson does not require that Elizondo knew or even 

believed federal grand-jury proceedings were in progress 

when he gave Salgado the instruction. Although Elizondo 

argued that he ordered the destruction or concealment of 

evidence solely in anticipation of an internal CPD or statelevel investigation, the jury “was not required, however, to 

accept [Elizondo’s] version of events.” Id. at 607. We therefore 

affirm Elizondo’s conviction for obstruction on Count Four.

D. Loss Calculation

The final issue for our consideration is the calculation of 

the intended loss for purposes of sentencing. At Elizondo and 

Salgado’s sentencing hearings, the district court determined 

that the intended loss under U.S.S.G. § 2B1.1 was at least 

$6,500 but less than $15,000, which resulted in a two-level 

increase to each defendant’s offense level. Defendants argue 

the district court’s calculation was erroneous because it 

incorporated a portion of the $15,000 that government agents 

placed in the Maplewood apartment, which Elizondo and 

Salgado did not physically attempt to misappropriate. They 
32 Nos. 20-2167 & 20-2366 

contend the intended loss is only complete at the time money 

is taken, and they did not take any of the $15,000 despite 

having the opportunity to do so. 

We review a district court’s calculation of the intended loss 

under U.S.S.G. § 2B1.1 for clear error. United States v. Blake, 

965 F.3d 554, 558 (7th Cir. 2020). Under this standard of 

review, we will reverse “only if we are left with the definite 

and firm conviction that a mistake was made.” Id. (quoting 

United States v. Brown, 880 F.3d 399, 409 (7th Cir. 2018)). To 

successfully appeal a district court’s loss calculation, the 

defendant must show “that the district court’s calculation was 

not only inaccurate but outside the realm of permissible 

computations.” United States v. Riley, 493 F.3d 803, 810 (7th 

Cir. 2007) (citations omitted).

Commentary to § 2B1.1 clarifies that “‘[i]ntended loss’ (I) 

means the pecuniary harm that the defendant purposely 

sought to inflict; and (II) includes intended pecuniary harm 

that would have been impossible or unlikely to occur (e.g., as 

in a government sting operation, or an insurance fraud in 

which the claim exceeded the insured value).” U.S.S.G. 

§ 2B1.1 App. Note 3(A)(ii). When a district court calculates the 

intended loss attributable to a defendant’s conduct, it asks 

how many dollars the culprits’ scheme put at risk. United 

States v. Bonanno, 146 F.3d 502, 509–10 (7th Cir. 1998). 

“Logically, intended loss must include both the amount the 

victim actually lost and any additional amount that the 

perpetrator intended the victim to lose.” United States v. 

Mickens, 453 F.3d 668, 672–73 (6th Cir. 2006) (quoting United 

States v. Carboni, 204 F.3d 39, 47 (2d Cir. 2000)). That is, § 2B1.1 

holds a defendant accountable “for the full amount of the loss 
Nos. 20-2167 & 20-2366 33

he was prepared to inflict.” United States v. Strozier, 981 F.2d 

281, 285 (7th Cir. 1992).

Moreover, this court has rejected the argument that the 

amount of money a defendant intended a victim to lose

cannot be included merely because the defendant has not 

completed the final step to expropriate funds. In Strozier, for 

instance, we refused to accept the defendant’s argument that 

the intended loss attributable to his scheme was only the 

$36,000 he withdrew from a bank account rather than the full

$405,000 he fraudulently deposited in that account. Id. at 283–

85. We reasoned that the facts in that case supported the 

district court’s conclusion that the defendant intended to 

spend the full $405,000 he deposited. Id.; accord United States 

v. Sykes, 357 F.3d 672, 675 (7th Cir. 2004) (adopting Strozier’s 

holding and reasoning); United States v. Torres, 209 F.3d 308, 

311–12 (3d Cir. 2000) (same). 

In concluding that the $6,500 threshold for the total 

intended loss was met, the district court found it was 

“overwhelmingly likely” that defendants intended to steal at 

least $3,000, or 20 percent, of the cash recovered from the 

apartment. The record supports the district court’s finding by 

at least a preponderance of the evidence. 

Inculpatory evidence was presented of the defendants’ 

intent as to the cash at the apartment. The jury heard 

testimony that Elizondo and Salgado intended to steal funds 

from the Maplewood apartment. And the government played 

a recording at trial of Elizondo stating he did not take any of 

the cash recovered from the apartment solely because security 

cameras were located there. The district court saw and 

evaluated this evidence and concluded “it was clearly shown 

that there was an intention to take some of that money had 
34 Nos. 20-2167 & 20-2366 

they not discovered the video cameras.” The trial court 

reasonably inferred, based on the details of the defendants’ 

scheme, that they intended to take at least $2,300 of the 

$15,000. 

At oral argument, Salgado’s counsel disputed this finding, 

contending that the defendants did not intend to steal money 

recovered from the apartment regardless of whether they 

discovered the cameras. This is shown by their decision to 

continue working with Cuba after he led them to an 

apartment equipped with surveillance cameras.2 But that 

contention ignores the government’s explanation for the 

defendants’ decision to inventory the full $15,000, which is 

that they believed the cameras belonged to the drug dealers 

whose home they were purportedly raiding. Accepting that 

explanation—as the district court was entitled to do, and to 

which we must defer—it follows that Elizondo and Salgado 

would have abandoned their plan to steal money from a 

house where they believed drug dealers had recorded them.

Importantly, the defendants have not offered an 

alternative theory to explain Elizondo’s statement that it 

would have been “a good Christmas for everybody” if the 

officers had not discovered the cameras in the apartment. 

Even if such a theory had been offered, no evidence of any 

benign explanation was presented at either sentencing 

hearing. To the contrary, Cuba’s testimony was that he 

understood Elizondo’s statement to mean the officers would 

have stolen some of the money and distributed a portion of 

those proceeds to their informants. We “refuse to overturn the 

district court’s sentence on the basis of speculation in the 

2 Oral Argument at 15:55, 18:00. 
Nos. 20-2167 & 20-2366 35

valley of dreams.” Strozier, 981 F.2d at 285. There was no clear 

error in the district court’s factual finding that the 

government showed, by at least a preponderance of the 

evidence, that defendants intended to steal a portion of the 

cash at the Maplewood apartment. 

Under the deferential standard of review that applies to a 

trial court’s loss calculation, Elizondo and Salgado’s 

argument must be rejected. Because the district court’s factual 

findings were not clearly erroneous, it was entitled to account 

for the value of the funds that Elizondo and Salgado placed at 

risk by traveling to the Maplewood apartment and searching 

it with the intent to expropriate some of the cash that was 

placed there. Elizondo and Salgado’s decision to abandon 

their plan once they discovered cameras in the apartment is 

not dispositive. 

* * *

For these reasons, we AFFIRM Elizondo and Salgado’s 

convictions and their sentences.