In the

United States Court of Appeals

For the Seventh Circuit

No. 09-4056

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEXANDER VASQUEZ, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cr-00625-3—Charles R. Norgle, Sr., Judge.

ARGUED NOVEMBER 5, 2010—DECIDED MARCH 14, 2011

Before EVANS, SYKES, and HAMILTON, Circuit Judges.

EVANS, Circuit Judge. A jury convicted Alexander

Vasquez of conspiring to possess more than 500 grams

of cocaine with intent to distribute. He was subsequently

sentenced to serve a term of 240 months. On appeal,

Vasquez asks us to reverse his conviction and remand

the case for a new trial on several grounds: that the

judge (1) should have excluded evidence of his prior

drug conviction; (2) should have granted his motion to
2 No. 09-4056

suppress evidence found in a warrantless search of an

automobile; (3) deprived him of a meaningful opportunity to cross-examine a government witness; and

(4) should not have admitted recordings of telephone

conversations between a defense witness and a co-defendant. We begin with the facts.

Vasquez and two co-defendants, Joel Perez and

Carlos Cruz, were arrested in Arlington Heights, Illinois,

following a failed cocaine transaction. The day’s events

started in the parking lot of a Shell gas station, moved to

a nearby parking lot at a Denny’s Restaurant, and finally

to the shared parking lot of a Walmart and McDonald’s.

The deal that flopped began several days earlier when

Perez contacted Cruz about obtaining a kilogram of

cocaine. Cruz then called Alejandro Diaz, whom he

knew to be involved in cocaine deals. Cruz, however,

didn’t know that Diaz was cooperating with law enforcement agents. Cruz, Perez, and Diaz arranged for a deal

to go down in Arlington Heights on August 5, 2008.

On the day that it all came tumbling down, Cruz and

Perez, with Cruz driving, went to the Shell station for

the deal. There, they met Diaz who instructed them

to follow him to another location to get the cocaine.

Instead, Perez walked to the Denny’s parking lot next

door where Vasquez was waiting for him in a black

Bonneville. Perez slid into the passenger seat of the car

and called Cruz on a cell phone telling him that he was

not willing to follow Diaz; he wanted to complete the

deal at the current location. Cruz then went to the

Denny’s lot where he was introduced to Vasquez. Shortly
No. 09-4056 3

thereafter, Diaz called Cruz to find out why they were

not following him. Cruz told Diaz that Perez wanted

to complete the deal in the parking lot. Perez told Cruz

to tell Diaz that “we got the money here.” Vasquez repeated the statement, “tell him we got the money here.”

Cruz hung up with the understanding that Diaz was

returning to complete the deal.

Several minutes later, and after Diaz contacted his

handler, DEA Agent James Chupik, law enforcement

agents surrounded the parking lot and approached the

Bonneville to arrest Cruz, Perez, and Vasquez. In addition to several unmarked cars, six officers approached

the Bonneville on foot. As the officers approached,

Cruz, who was outside of the car, raised his hands in

surrender. Vasquez’s reaction was not nearly as submissive. He put the Bonneville in reverse, striking two

Arlington Heights police cars. He then shifted gears

and headed for the exit. Agent Chupik moved in front of

the Bonneville, pointed his gun at Vasquez, and commanded him to stop. But Vasquez showed no signs of

stopping so Agent Chupik jumped out of the way as the

Bonneville sped out of the parking lot heading west

onto the eastbound lanes of Algonquin Road.

A few minutes later, police located the Bonneville

abandoned in a nearby Walmart parking lot. A bystander

told the police he saw two men run from the vehicle

toward a McDonald’s. An Arlington Heights detective

pursued Vasquez and Perez as they ran through the

kitchen of the McDonald’s and then out the back door.

At that point, Vasquez and Perez split up, each

running in a different direction. But the chase was short
4 No. 09-4056

lived—they were quickly apprehended by Arlington

Heights police. The police found a cell phone on Vasquez,

and two cell phones on the ground near Perez. Phone

records showed that there were calls between Vasquez

and both of Perez’s phones the day before and the day

of the arrest.

The Arlington Heights police towed the Bonneville to

the police station. During a search of the car later that

day, they found a hidden compartment in the passenger

side of the dashboard containing $23,000 in cash.

Based on this evidence, a federal grand jury returned an

indictment charging Vasquez with conspiring to possess

with intent to distribute more than 500 grams of cocaine

and with attempting to possess with intent to distribute

more than 500 grams of cocaine, each in violation of

21 U.S.C. § 846.

As the case progressed, Vasquez filed a motion to

suppress the evidence recovered from the search of the

Bonneville and the government filed a motion to

admit, pursuant to Federal Rule of Evidence 404(b),

evidence of Vasquez’s involvement in a cocaine transaction in 2002. The district judge denied Vasquez’s

motion and granted the motion filed by the government. The judge found that the police had probable cause

to search the Boneville and that the 2002 cocaine transaction, which resulted in a conviction, was admissible to

show Vasquez’s knowledge and intent under Rule 404(b).

At trial, Agent Chupik testified for the government.

Among other things, he testified that he instructed Diaz

to have Cruz and his “customers” come to a gas station
No. 09-4056 5

in Arlington Heights for the transaction. But according

to the actual transcript of the call, which the government later published, Cruz referred to a single customer as “him” and “this dude.” On cross-examination,

Vasquez’s counsel attempted to impeach Agent Chupik

on this point by refreshing his memory. The judge

limited cross-examination, however, finding that the

difference between “customers” and “customer” in this

instance was a trivial detail.

Later in the trial, Vasquez called several witnesses,

including Perez’s wife, Marina. Later still, the judge

allowed the government to recall Marina to the stand

and, among other things, question her about telephone

conversations she had with her husband while the case

was still pending.

Ultimately, the jury found Vasquez guilty on the conspiracy count and not guilty on the attempt charge. Issues

concerning the recall of Marina to the stand and the

telephone conversations she had with her spouse are at

the heart of Vasquez’s appeal, but we will put them

aside for the moment as we consider the other issues

raised on Vasquez’s appeal.

We begin with Vasquez’s claim that the judge should

have precluded the government from introducing his

prior drug conviction to show his knowledge and modus

operandi pursuant to Rule 404(b). We review the judge’s

ruling for an abuse of discretion. United States v. Conley,

291 F.3d 464, 472 (7th Cir. 2002). We will reverse only

if the record contains no evidence on which the judge

rationally could have based his ruling. Id.
6 No. 09-4056

Rule 404(b) provides that evidence of prior acts is admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident,” but not “to prove the character of a person in

order to show action in conformity therewith.” Fed.

R. Evid. 404(b). We apply a four-part test to decide

whether Rule 404(b) evidence was properly admitted

and will find no error if:

(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity

to commit the crime charged; (2) the evidence

shows that the other act is similar enough and close

enough in time to be relevant to the matter in issue;

(3) the evidence is sufficient to support a jury finding

that the defendant committed the similar act; and

(4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice.

United States v. Vargas, 552 F.3d 550, 554 (7th Cir. 2008).

Here, the government introduced Vasquez’s prior

conviction to show that he had previously carried out a

cocaine deal with Perez using a hidden compartment in a

car. The evidence was not used to show propensity, but

rather to show modus operandi. United States v. Montoya,

891 F.2d 1273, 1285 (7th Cir. 1989) (upholding admission

of evidence under a modus operandi theory when prior

drug offense involved the defendant working with the

same person, using a car registered to another person,

and using a hidden compartment in the car).
No. 09-4056 7

The prior drug deal with Perez was certainly important

as it showed that Vasquez’s position that he was merely

an innocent bystander was a smoke screen. See United

States v. Chavis, 429 F.3d 662, 668 (7th Cir. 2005) (evidence

of a prior drug conviction is admissible when a defendant claims that he was “simply in the wrong place

at the wrong time”); Vargas, 552 F.3d at 555-56 (evidence

that defendant had previously transported narcotics in

a trailer made it more likely that he knew about the

drugs hidden in the trailer in the instant case, and less

likely that he was an innocent victim).

Finally, limiting “instructions ‘are effective in reducing

or eliminating any possible unfair prejudice from the

introduction of Rule 404(b) evidence.’ ” United States v.

Jones, 455 F.3d 800, 809 (7th Cir. 2006) (internal citations

omitted). Here, the judge properly instructed the jury

regarding the purposes for which the Rule 404(b) evidence

was introduced.

Therefore, the introduction of Vasquez’s prior conviction clearly passes the admissibility test. It was admissible to show Vasquez’s knowledge, intent, absence

of mistake and modus operandi. The judge did not abuse

his discretion in admitting the 2002 cocaine-related conviction.

Next, Vasquez argues that the judge should have

granted his motion to suppress the money discovered

during the search of the Bonneville. He argues that the

police violated his Fourth Amendment rights when they

conducted a warrantless search of the car after he was

taken into custody. We review a district judge’s denial of
8 No. 09-4056

a suppression motion under a dual standard: “the Court

reviews legal conclusions de novo and findings of fact

for clear error.” United States v. Jackson, 598 F.3d 340, 344

(7th Cir. 2010).

The search issue is a dead-bang loser. For one thing,

the Bonneville was abandoned, and it’s hard to see,

under the circumstances here, how Vasquez could argue

with a straight face that he maintained an expectation

of privacy in it after he ditched it and bolted off on the

run. On top of that, it’s clear that the pursuing police

had abundant probable cause to believe that drug

money was in the car. What was the probable cause?

Well, (1) Cruz told Diaz that Vasquez and Perez had the

money with them; (2) no money was found during

the searches of Vasquez and Perez; and (3) two drugdetection dogs indicated that there were narcotics in

the passenger-side dashboard of the car. The motion to

suppress was properly denied.

Vasquez also claims that the judge denied him a meaningful opportunity to cross-examine Agent Chupik, in

violation of his Sixth Amendment right to confront witnesses against him. “Limitations on cross-examination

rise to the level of a Sixth Amendment violation when

they prevent the exposure of a witness’ bias and motivation to lie.” United States v. Smith, 308 F.3d 726, 738 (7th

Cir 2002). But the right to cross-examination is not without limitation:

[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable

limits on such cross-examination based on concerns
No. 09-4056 9

about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A Sixth

Amendment violation occurs when the defendant shows

that he was denied the opportunity to elicit testimony that

would be “relevant and material to the defense.” United

States v. Williamson, 202 F.3d 974, 979 (7th Cir. 2000)

(internal citation omitted). In this case, the judge found

that the information Vasquez hoped to elicit from

Agent Chupik, which Vasquez argues shows bias, was

trivial and a collateral issue, and therefore not relevant.

We review the judge’s ruling for abuse of discretion. Id.

Vasquez argues that the judge erred by refusing to

allow his counsel to attempt to impeach Agent Chupik

with a supposedly inconsistent statement he made in an

affidavit. Specifically, when discussing the calls between

Cruz and Diaz, Agent Chupik said in his affidavit that

there were “customers.” In fact, the calls only refer to a

single customer. The government points out, however,

that in the rest of the affidavit, Agent Chupik refers to a

single customer, undercutting Vasquez’s argument that

Agent Chupik was deliberately lying. If anything, it

suggests that Agent Chupik simply misspoke. Moreover,

Agent Chupik’s affidavit was based on a draft transcript

that had been translated from Spanish to English, and

neither the draft transcript nor the affidavit were presented

to the jury.

It is within the discretion of a trial judge to limit crossexamination, especially when, as here, the discrepancies
10 No. 09-4056

are minor. See United States v. Mojica, 185 F.3d 780, 788-89

(7th Cir. 1999) (district court did not abuse discretion

in limiting cross-examination of a witness regarding

prior drug use when the inconsistencies were “no more

than minor discrepancies”). Thus, the judge did not

abuse his discretion when he limited Vasquez’s crossexamination of Agent Chupik.

Vasquez also argues that the judge erred in ruling that

the he could not use transcripts to refresh Agent Chupik’s

memory. The Government acknowledges that this was

an error, but responds that it was harmless because the

judge ruled irrelevant the point on which Vasquez

was trying to refresh Agent Chupik’s memory. Evidentiary rulings are reviewed for an abuse of discretion.

United States v. Schalk, 515 F.3d 768, 774 (7th Cir. 2008).

Vasquez is correct—the judge incorrectly stated that

there was “no basis to cross-examine with respect to

something not in evidence.” A document does not need

to be “admissible as substantive evidence in order to

be used for the purposes of impeaching a witness (or

refreshing his recollection).” Pecoraro v. Walls, 286 F.3d

439, 444 (7th Cir. 2002). But the government is correct

that it is within the judge’s discretion to preclude

counsel from refreshing a witness’ memory on a point

the judge has ruled trivial and a collateral issue. Therefore, while the judge’s ruling was in error, it was

harmless error at best in this case.

Finally, we turn to Vasquez’s primary argument, the

resolution of which is where we part company with our

dissenting colleague. Vasquez asserts that the district
No. 09-4056 11

judge erred in several respects regarding the recalling of

Marina as a witness in the government’s rebuttal case

and, more importantly, in admitting into evidence the

Metropolitan Correctional Center (MCC) recordings of

her telephone conversations with her husband.

There’s no doubt that Vasquez’s trial would have

been cleaner had Marina Perez not been injected into the

show. But to put things in perspective, it’s best to step

back for a moment and look at the big picture. Joel

Perez and Cruz pled guilty to the charges against them.

Vasquez, however, elected to go to trial. Instead of relying

on a generalized defense—that the government failed

to prove his guilt beyond a reasonable doubt—Vasquez

elected to offer something in the nature of an actual

affirmative “defense” on the merits. It would be that he

was only an innocent bystander who just happened to

be in the wrong place at the wrong time. In the real

world of criminal court trials, that sort of “defense” is

difficult to sell. And it’s especially hard to sell when a

defendant, like Vasquez here, elects not to take the stand

and tell the jury his version of how he just happened to

be where the drug deal was about to go down. So how

does he get this “defense” before the jury? Enter Marina.

She was his only hope, and a slim one at that.

When called by Vasquez as a witness, Marina said

that her husband, earlier in the day, asked her to pick

him up at the place where the drug deal died. But later,

she asked Vasquez to go in her place. He agreed, and

he took the Bonneville, rather than his own car, only

because it was more convenient to do so. So if believed,
12 No. 09-4056

the jury might think that Vasquez had no idea a drug

deal was in play and that he just showed up by pure

happenstance with a car full of cash stashed away in a

hidden compartment. The if is a mighty big if, especially

when one considers that the jury knew that Vasquez

had participated in a remarkably similar drug deal involving cocaine, Perez, some $15,000 in cash, and a car

in 2002.

The government obviously thought Marina’s tale was

a fish story. Based on the way the case stood at the

time, the government could have let Marina leave the

stand after a short cross-examination. That might have

been the safest course to take. But instead, the government filed a motion to continue the trial over the

weekend based on recordings it had obtained of telephone conversations between Marina and her husband,

who was incarcerated at the MCC at the time. The government argued that the conversations between the

two went directly to the truthfulness and accuracy of

Marina’s testimony and raised potential conflict-ofinterest issues. Vasquez’s counsel objected to the government’s motion to no avail. The judge held that the

MCC recordings were admissible as extrinsic evidence

of Marina’s interest, bias and prejudice, and of her prior

inconsistent statements.

When the trial resumed, the government called

Marina in its rebuttal case and published four recorded

conversations between her and her husband. During

questioning, Marina acknowledged that she had met

with Vasquez’s lawyer several times before August 20,
No. 09-4056 13

2009 (the only meeting she mentioned in her direct testimony). She also admitted that she understood that

Vasquez’s lawyer could get Perez a lower sentence and

that the lawyer wanted Perez to enter a plea and avoid

implicating Vasquez. Defense counsel’s objection to Marina’s testimony was overruled. And then the MCC

recordings came in. They included this exchange:

Marina: So what’d Beau [Vasquez’s lawyer] tell

him [Vasquez]? What did Beau tell

him?

Perez: A blind plea would be good, then he

can guarantee this and that. You know

what I mean? Just certain things, you

know? I got to explain to you.

Marina: He’s telling him about a blind plea

also?

Perez: Yeah, he is. I gotta explain to you. You

know what I mean. He says, if you

want, have his wife talk to me, this or

that. I have to explain to you tomorrow.

The jury also heard Marina tell her husband that

Vasquez’s lawyer also said “everybody is going to lose”

if they go to trial.

Vasquez argues that the judge abused his discretion in

allowing the government to recall Marina during its

rebuttal case solely for the purpose of impeachment. He

is correct that “a party may not call a witness for the
14 No. 09-4056

sole purpose of impeaching him.” United States v. Giles,

246 F.3d 966, 974 (7th Cir. 2001). But Rule 611 gives the

district court authority to “exercise reasonable control

over the mode and order of interrogating witnesses and

presenting evidence so as to . . . make the interrogation

and presentation effective for the ascertainment of the

truth.” Fed R. Evid. 611. Furthermore, the judge has “broad

discretion to determine whether the government’s evidence [falls] within the proper scope of rebuttal.” United

States v. Liefer, 778 F.2d 1236, 1249 n.11 (7th Cir. 1985)

(no error when court allowed government to recall two

defense witnesses as government rebuttal witnesses).

Here, the government recalled Marina after it discovered the recorded conversations because it believed

that they proved she was biased. Vasquez argues that

the judge abused his discretion in allowing the government to recall Marina because it had an opportunity

to cross-examine her previously. But there is no

authority for the odd proposition that allowing a party

to recall a witness based on new information is an

abuse of discretion. The government sought to introduce evidence that one of Vasquez’s main witnesses

was biased. The judge did not abuse his discretion in

allowing the government to recall Marina for this purpose.

Second, Vasquez argues that the MCC recordings were

inadmissable hearsay. Extrinsic evidence of a witness’

bias, however, is admissible to impeach that witness and

is never a collateral issue. United States v. Lindemann,

85 F.3d 1232, 1243 (7th Cir. 1996). In the recordings,

Marina says she talked with Vasquez’s counsel several
No. 09-4056 15

times about the future of both Vasquez and her

husband, and that she believed counsel could help her

husband get a lower sentence. The government offered

the recordings to prove that Marina had an incentive to

lie—to get her husband a lower sentence. Moreover, when

the government questioned Marina about the calls, her

answer supported the government’s theory:

Government: And you thought that the defendant’s

attorney was recommending that

your husband enter a plea where he

did not admit the role of Alexander

Vasquez, isn’t that right?

Marina Perez: Where [Perez] did not admit, yes, because [Vasquez] is going to trial. 

Accordingly, Marina’s testimony and the MCC recordings were admissible as extrinsic evidence to

show Marina’s bias and interest in trying to get her

husband a lower sentence.

The recordings are also admissible as prior inconsistent

statements. Vasquez argues that prior inconsistent statements must be “in fact inconsistent” under Federal Rule

of Evidence 613. United States v. Crovedi, 467 F.2d 1032,

1037 (7th Cir. 1972). But “two statements need not be

diametrically opposed to be inconsistent.” United States v.

Jones, 808 F.2d 561, 568 (7th Cir. 1986). Here, the government argued that Marina’s statements to her husband—that he and Vasquez were in trouble and likely to

be convicted—is arguably inconsistent with her story

that it was her idea that Vasquez took the Bonneville on

the day of the deal. While there may well be other ways
16 No. 09-4056

to look at this situation, we do not believe that the

judge abused his discretion in permitting her to be questioned on the point.

The admission into evidence of the MCC recordings

themselves, however, is a horse of a different color. The

government argues that the judge did not err because it

never sought to admit the recordings for their truth.

But the government’s argument ignores the fact that

the judge said, without question, that “[w]ith respect to

interest, bias, and prejudice . . . if any of these statements

can be interpreted as such to indicate an interest, bias or

prejudice, they would go in for their truth.” (emphasis

added). Vasquez is correct—on this point, the judge

made the wrong call. But Vasquez gets no traction on

this point if the error in admitting the MCC recordings

for their truth was harmless. See United States v. Olano,

507 U.S. 725, 734 (1993). “The 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. Emerson, 501 F.3d 804, 813 (7th Cir. 2007). On appeal,

the burden lies on the government to prove that a reasonable jury would have reached the same verdict

without the challenged evidence. United States v.

Williams, 493 F.3d 763, 766 (7th Cir. 2007).

Looking at the evidence as a whole, although the issue

is close, we believe that the error was harmless. What

was the evidence? We start with Vasquez’s flight as

possible evidence of guilt. While we agree with our

dissenting colleague that flight evidence must be viewed
No. 09-4056 17

with caution, United States v. Robinson, 161 F.3d 463, 469

(7th Cir. 1998), we think it’s important to note that there

are degrees of flight. A defendant walking down a street

who runs into a yard and then into a house after he

hears an officer say, “Stop, police” is one thing. The flight

here goes far beyond that. If there were degrees of flight,

what happened here would be flight in the first degree.

How else do you describe throwing the Bonneville into

reverse, endangering officers (recall that Agent Chupik,

with gun drawn, had to jump out of the way), hitting

two police squad cars, and gunning it the wrong way

into a roadway from the parking lot, ditching the car a

few moments later and trying to escape by running

through the kitchen and out the back door of a McDonald’s?

Add to that, we have the cell phone logs showing

several Perez\Vasquez contacts leading up to the aborted

deal and Vasquez saying to Cruz “tell him we got the

money here.” And then there’s the striking similarity

between this caper and the one (also with Perez) that

lead to Vasquez’s drug conviction in 2002. The $23,000

in cash found in the hidden compartment of the

Bonneville (recall $15,000 was hidden in the car during

the 2002 deal) puts a little frosting on the cake. This

evidence, we believe, would have moved the jury to

convict Vasquez without a nudge from anything it

heard in the government’s rebuttal case.

For these reasons, the judgment of the district court

is AFFIRMED. 
18 No. 09-4056

HAMILTON, Circuit Judge, dissenting. I respectfully

dissent. I agree with my colleagues that the district

court did not abuse its discretion by allowing evidence

of Vasquez’s 2002 conviction, by allowing evidence

found in the search of the automobile, or by limiting the

cross-examination of Agent Chupik. I also agree that

the district court’s error in preventing the defendant

from refreshing Agent Chupik’s recollection was harmless. However, I cannot agree that the MCC tapes were admissible or that the district court’s errors in admitting

the MCC tapes were harmless. I would reverse the conviction and remand for a new trial.

Marina Perez’s second visit to the witness stand in

the government’s rebuttal case, to explore a phantom

inconsistency and to admit erroneously the MCC tapes,

caused unfair prejudice to the defendant. The jury heard

evidence that the defendant’s lawyer had advised him

to plead guilty and had said that if the three defendants

went to trial, “everyone is going to lose.” That evidence

had no genuine probative value, and it is difficult to

imagine more prejudicial evidence. Even if a limiting

instruction telling the jury that such damaging evidence

should not be considered for the truth of the matters

asserted could have been effective, which I doubt, no

instruction was given. The district court admitted the

rebuttal evidence as proof of the truth of the matters

asserted in the taped MCC telephone calls, which my

colleagues and I all agree was an error.

The whole episode made for a fairly dramatic conclusion for the trial. The defense case concluded on a Thurs-
No. 09-4056 19

The further drama included the government threatening 1

Vasquez’s lawyer with investigation and prosecution, Tr. 571,

and the court holding Joel Perez in contempt of court because

he refused to testify and telling him that he faced life in

prison if he continued to refuse. Tr. 578-79. After that finding

and threat, the government said: “I don’t know if we need

Mr. Perez still or not.” Tr. 579. He did not testify.

day, and the trial recessed for the weekend. On Sunday,

the government filed an emergency motion for a continuance to prepare a rebuttal case using the MCC tapes

of Marina Perez’s conversations with her husband. On

Monday, the court allowed the delay and sent the jury

home. Mrs. Perez was called to testify again on Tuesday.

In her testimony, she admitted the key legitimate point

that the government was entitled to make: that she expected or at least hoped that Vasquez’s lawyer could

help her husband receive a lighter sentence. But the government’s rebuttal did not stop there. After Mrs. Perez

testified, the government played the tapes through

another witness. On Wednesday, after further drama,

the case was given to the jury. Mrs. Perez’s testimony 1

and the government’s attempted impeachment figured

prominently in the government’s closing argument to

the jury. Then, after the jury had heard that Vasquez’s

attorney had told him to take a plea and that he was

going to lose at trial, that same attorney rose, with his

credibility destroyed, to give closing argument on

Vasquez’s behalf.

One theory for questioning Mrs. Perez about the MCC

tapes and then admitting the tapes was that they were
20 No. 09-4056

prior statements by Mrs. Perez that were inconsistent

with her trial testimony for the defense. But inconsistent

with what? Mrs. Perez testified that Vasquez drove to

the site of the drug meeting because she asked him to

pick up her husband with the Perez’s car. Nothing in

the MCC tapes is inconsistent with that testimony. The

government’s theory was that Mrs. Perez’s belief that

Vasquez would be convicted was inconsistent with her

testimony that it was her fault that Vasquez happened

upon the scene of the transaction. See Gov’t Br. 18. The

theory seems to be that if Mrs. Perez’s trial testimony

were honest, she necessarily would have believed that

as long as she testified truthfully, the jury would unerringly find Vasquez not guilty. Because she was very

worried that Vasquez would be convicted, goes the

theory, the jury should conclude that she lied in her

trial testimony.

That theory of the supposed inconsistency makes

sense only if we assume that, if Mrs. Perez was telling the

truth, she also must have had an extraordinary and

even naive confidence in the infallibility of juries in

telling the difference between true and false testimony.

Any citizen who has followed recent news of exonerations of innocent but convicted defendants would be

entitled to worry. One can be a great believer in the

wisdom of juries, as I am, without assuming they are

infallible. Let’s assume for purposes of argument that Mrs.

Perez’s testimony about asking Vasquez to drive the

Perez’s car to pick up her husband was true. Even so,

anyone as familiar as she was with the evidence against

both her husband and Vasquez—who were then both in
No. 09-4056 21

My colleagues also suggest that Mrs. Perez failed to disclose 2

several meetings with Vasquez’s lawyer when she testified in

the defense case. Slip op. at 12-13. She testified about the only

meeting she was asked about. Tr. 419. The fact that she had

other meetings, which she was not asked about, was not

inconsistent with her testimony. A witness should not be

impeached for having failed to volunteer information not

sought by the questioner. In fact, in a criminal trial, volunteered

information often poses a greater danger to the fairness of

the trial than omissions do.

the federal lock-up under federal indictment—could

reasonably worry that she might not be believed. If a

witness’s expression of the view that a trial might come out

the wrong way can be treated as inconsistent with the

witness’s testimony for the “right” result, we will see more

cases with attempted impeachment like this.

I recognize that a prior statement need not be “diametrically opposed” with a witness’s testimony to be

inconsistent, but genuine inconsistency is still necessary. See United States v. Hale, 422 U.S. 171, 176 (1975);

United States v. Jones, 808 F.2d 561, 568 (7th Cir. 1986);

accord, United States v. Cody, 114 F.3d 772, 776-77 (8th Cir.

1997). The supposed inconsistency here was non-existent.

It was an abuse of discretion to admit the evidence on

that theory.

2

The government’s bias theory also does not justify

admission of the MCC tapes. Evidence of a witness’s

bias is always relevant, of course. See, e.g., United States v.

Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996). But the

first problem here is that before the MCC tapes were
22 No. 09-4056

admitted, Mrs. Perez had already admitted the asserted

bias: she hoped that Vasquez’s lawyer would help her

husband receive a lower sentence. There was no need

for further extrinsic evidence of the point, especially

where that extrinsic evidence posed all the problems

that the MCC tapes did here. In light of Mrs. Perez’s

candid (if perhaps naive) admission, the tapes provided

no or little additional probative value, but caused substantial unfair prejudice to defendant Vasquez.

Neither theory of admission—prior inconsistent statements or evidence of bias—supported admission of the

MCC tapes at all. My colleagues and I agree at least,

however, that the district court erred in admitting the

MCC tapes for the truth of the matters asserted by the

speakers. Bias is not an exception to the hearsay rule,

and even genuinely inconsistent statements are not admissible for the truth of the matters asserted. In this

case, the tapes included hearsay, double hearsay,

and even triple hearsay. In the most extraordinary and

prejudicial example, the jury heard Joel Perez tell

Marina Perez that Vasquez had told him that Vasquez’s

lawyer had told Vasquez that he should plead guilty:

Marina: So what’d Beau [Vasquez’s lawyer] tell

him [Vasquez]? What did Beau tell

him?

Joel: A blind plea would be good, then he

can guarantee this and that. You know

what I mean? Just certain things, you

know? I got to explain to you.

Marina: He’s telling him about a blind plea

also?
No. 09-4056 23

The government argues for a different interpretation, that 3

Joel Perez was telling Marina that Vasquez’s lawyer had told

Joel that Joel should enter a blind guilty plea (i.e., a plea without an agreement). In context, the better reading, and certainly

a permissible interpretation available to the jury, is that both

Joel’s lawyer and Vasquez’s lawyer were telling their respective clients that they should enter blind guilty pleas. That

explains Marina’s “also,” since Joel’s lawyer was advising

him at the time to enter a blind plea.

Joel: Yeah, he is. I gotta explain to you. You

know what I mean. He says, if you

want, have his wife talk to me, this or

that. I have to explain to you tomorrow.

Supp. App. 13. The jury also heard Marina Perez tell her 3

husband that Vasquez’s lawyer (who was his lead trial

attorney) had told her that if the three defendants went

to trial, “everybody is going to lose.” Supp. App. 11. The

government highlighted that comment in its questioning

of Mrs. Perez. Tr. 528-29. The erroneous admission of

this highly prejudicial hearsay and triple hearsay for the

truth of the matters asserted should require a new trial.

My colleagues conclude, however, that the erroneous

treatment of the MCC tapes evidence was harmless

because the government had so much other evidence

against Vasquez. I respectfully disagree. The issue is

whether the reviewing court is “convinced that the jury

would have convicted even absent the error.” United

States v. Simmons, 599 F.3d 777, 780 (7th Cir. 2010) (holding
24 No. 09-4056

that arguable errors in admitting evidence were

harmless in light of defendant’s own admissions about

his involvement in crime). The standard calls upon an

appellate court not to “become in effect a second jury,”

see Neder v. United States, 527 U.S. 1, 19 (1999), but to

determine “whether it appears ‘beyond a reasonable

doubt that the error complained of did not contribute

to the verdict obtained.’ ” Id. at 15, quoting Chapman v.

California, 386 U.S. 18, 24 (1967). Accord, e.g., United States

v. McGowan, 590 F.3d 446, 456 n.1 (7th Cir. 2009); United

States v. Williams, 493 F.3d 763, 766 (7th Cir. 2007).

The standard is not easy to satisfy, and four factors here

lead me to conclude this error was not harmless: the

modest strength of the rest of the government’s case

against Vasquez, the prejudicial character of the

evidence that was admitted erroneously, the fact that

the jury acquitted Vasquez of one of two charges, and

the importance that the government itself attributed to

its flawed rebuttal evidence.

Looking first at the strength of the rest of the case, we

can all agree that the government had a solid case

against both Perez and Cruz. Both were recorded making

arrangements for the cocaine purchase, and both

showed up at the agreed time and place. The case

against Vasquez was not as clear. Vasquez was not recorded at all. He was not even mentioned in any of

the recorded calls. The agents, the confidential informant,

and even Cruz were expecting only a single customer

to show up for the meeting. They knew nothing about

Vasquez until they saw him arrive in the Perez’s car at
No. 09-4056 25

the nearby Denny’s parking lot, from where he could

see Perez and Cruz. He never got out of the car, and

the agents did not hear him talk with anyone.

On the other hand, of course, Vasquez arrived at the

scene of a planned drug meeting driving a car carrying

$23,000 in a hidden compartment. He fled in the car,

dramatically and dangerously, as the agents tried to

make the arrests. He had previously been convicted of

a drug deal with Perez using a car with a similar

hidden compartment. And Cruz testified that he heard

Vasquez tell Perez on the telephone: “tell him we got the

money here.”

Let’s put aside the flight evidence for a moment and

focus on the other evidence. Marina Perez’s testimony

provided an innocent explanation for Vasquez’s presence

on the scene in the car with the hidden money. She said

she planned to pick up her husband but had an argument with him. She asked Vasquez to pick him up and

to take the Perez’s car because his own was parked in

by that car. The credibility of her testimony is at least

debatable. And Cruz, the co-defendant who set up the

meeting with the informant, testified that Perez was not

even supposed to bring any money to the meeting, Tr. 237-

38, which is at least consistent with her testimony.

Cruz’s testimony about Vasquez’s statement, “tell him

we got the money here,” was important. Apart from the

flight evidence, it was the strongest evidence against

Vasquez, and it was actually inconsistent with Marina

Perez’s testimony. My colleagues treat the statement

as an undisputed fact, but that is a mistake when we
26 No. 09-4056

are evaluating whether an error was harmless. The credibility of that key bit of testimony was subject to strong

attacks, far stronger than the government’s attacks on

Mrs. Perez’s testimony. Cruz was a cooperating defendant with powerful incentives to help the government prove its case against Vasquez, the only one of the

three who went to trial. On the witness stand, Cruz

admitted having lied to the government about Vasquez

and several other subjects. Tr. 250-52, 254-56, 268-72, 289.

Most important, Cruz admitted that he first told the

government about Vasquez’s supposed “money” comment less than one week before trial. Tr. 263-64. By

that time, Cruz had already been debriefed by the government several times, all without ever mentioning

the single most damaging part of his testimony

against Vasquez. On this record, the jury could easily

have treated the “money” comment as a late and false

invention by Cruz. The Rule 404(b) evidence—the

prior conviction—was strong evidence, but it remained

404(b) evidence that could not make the case by itself.

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government

had evidence that was legally sufficient to convict

Vasquez, but the case was far from a slam-dunk. The

dramatic evidence of the dangerous flight strengthened

the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless.

But the flight evidence cannot carry that much weight,

in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight
No. 09-4056 27

as evidence of guilt for the crime charged because there

are so many links in the chain of inferences:

We have long adhered to the Supreme Court’s cautionary language urging courts to be wary of the probative value of flight evidence. See Wong Sun v. United

States, 371 U.S. 471, 483 n.10 (1963) (“[W]e have consistently doubted the probative value in criminal

trials of evidence that the accused fled the scene of

an actual or supposed crime.”). While we allow evidence of flight to be presented, courts must engage

in careful deliberation when considering its admission. Determination of the probative value of flight

as evidence of a defendant’s guilt depends on the

degree of confidence with which four inferences can

be drawn: (1) from behavior to flight; (2) from flight

to consciousness of guilt; (3) from consciousness

of guilt to consciousness of guilt concerning the

crime charged; and (4) from consciousness of guilt

concerning the crime charged to actual guilt of the

crime charged. See United States v. Levine, 5 F.3d 1100,

1107 (7th Cir. 1993); see also United States v. Jackson,

572 F.2d 636, 639 (7th Cir. 1978) (adopting this

analysis as set forth in United States v. Myers, 550

F.2d 1036, 1049 (5th Cir. 1977)).

United States v. Robinson, 161 F.3d 463, 469 (7th Cir. 1998).

If we follow that cautious approach to flight evidence,

we should not rely on it to save the jury’s verdict from

the error we all agree was made in admitting the

highly prejudicial evidence from the MCC tapes.
28 No. 09-4056

We must also consider the prejudicial effect of the

improper evidence. The evidence from the MCC tapes,

admitted here erroneously for their truth and with no

true probative value, was just about as prejudicial as one

could expect to encounter in a trial. The jury heard

that Vasquez’s lawyer—the man who would soon make

a closing argument asking them to find reasonable

doubt in the government’s case—had told Vasquez that

he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.”

A juror who heard and believed that evidence would

surely discount anything she heard from that lawyer.

In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn

guilty plea. Such a plea is virtually never admissible

because of its powerful force. See Fed. R. Evid. 410(1);

Kercheval v. United States, 274 U.S. 220, 223-24 (1927).

We also have strong indications from both the jury

and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the

prejudicial and erroneous evidence, the jury still found

Vasquez not guilty on the charge of attempted possession

with intent to distribute. That verdict is hard to

reconcile with the jury’s conviction on the conspiracy

charge, and the split verdict certainly has the whiff of a

compromise verdict in a close case. Such verdicts are

permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded

error was harmless, we should not ignore that strong

signal that the jury viewed the case as a close one, even
No. 09-4056 29

with the evidence of flight and the improper rebuttal

evidence.

The government also showed how important it

believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed

nearly over when the government filed its emergency

Sunday motion for a continuance to enable it to prepare

this rebuttal case. The events of the next several days,

including especially the government’s emphasis on the

improper evidence in its closing argument, showed that

the government believed that Mrs. Perez had seriously

weakened its case and that the improper rebuttal

evidence strengthened its case considerably. My colleagues disagree with that assessment, but in applying

the harmless error standard, we should give more weight

to the views of the party who sought admission of the

improper evidence, as shown by that party’s conduct

at trial.

I am not trying to suggest that Vasquez is actually

innocent or that I necessarily believe Marina Perez’s

testimony about why he was in the car at the scene of

the bust. Those are questions for the jury. But in light of the

closeness of the case, the highly prejudicial nature of the

improper evidence, the jury’s split verdict, and the government’s emphasis on the improper evidence, I am not

convinced beyond a reasonable doubt that the jury

would have convicted Vasquez in the absence of the

improper and highly prejudicial MCC tape evidence.

I would vacate the judgment and order a new trial.

3-14-11