In the

United States Court of Appeals

For the Seventh Circuit

No. 18-2758

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAURICIO MARCHAN,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 17 CR 00005-2 — Gary Feinerman, Judge.

ARGUED MAY 16, 2019 — DECIDED AUGUST 13, 2019

Before BAUER, HAMILTON, and ST. EVE, Circuit Judges.

BAUER, Circuit Judge. Following a jury trial, Mauricio

Marchan was convicted of one count of possession with intent

to distribute 500 grams or more of cocaine, in violation of 21

U.S.C. §§ 841(a)(1) and 846, and one count of distribution of 500

grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1).
2 No. 18-2758

Marchan appeals his conviction arguing that the trial proceedings were replete with errors and, as a result, he was denied a

fundamentally fair trial. After considering the events at trial,

we believe that the district court judge diligently presided over

the trial, but to the extent any errors were made, they were

harmless. Accordingly, we affirm.

I. BACKGROUND

In the early evening of January 4, 2017, Pedro Chavelas, a

government informant, met with Victor Ramirez, who had

agreed to facilitate Chavelas’s purchase of two kilograms of

cocaine. The two met in a Target parking lot in Chicago’s

Archer Heights neighborhood. After a brief recorded discussion, Ramirez and Chavelas met with Marchan who informed

them the cocaine was with “[t]he guy in the little white car.”

After Chavelas confirmed that the cocaine was present, agents

moved in.

Marchan, Ramirez, and the “guy in the little white car”

(“Moreno”), were arrested. Agents searched the white car and

recovered a kilogram of cocaine. Agents also seizedcell phones

from Marchan, Ramirez, and Moreno. An examination of

telephone records showed multiple calls between Ramirez and

Marchan and Marchan and Moreno leading up to their arrest.

On September 14, 2017, a grand jury returned a superseding indictment charging Marchan with one count of possession

with intent to distribute 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of

distribution of 500 grams or more of cocaine, in violation of 21

U.S.C. § 841(a)(1). On March 5, 2018, his jury trial began.
No. 18-2758 3

Before trial the government submitted a Santiago proffer

purporting to show a conspiracy to distribute cocaine. In his

objection Marchan pointed out that, under this circuit’s

precedent, a single narcotics transaction, where only a buyerseller relationship exists, is not enough to establish a conspiracy. See United States v. Johnson, 592 F.3d 749, 754 (7th Cir.

2010). Thereafter the government withdrew its proffer after

deciding not to call Ramirez, upon whose testimony the proffer

was largely based.

At trial the government produced a multitude of witnesses:

Special Agent Billy Conrad (“SA Conrad”), who testified about

some of the surveillance conducted during the operation;

Dr. Catalina Johnson (the “Translator”), who translated the

Spanish language audio made by Chavelas’s hidden recording

device; Task Force Officer Francisco Gomez (“TFO Gomez”),

who discussed the pending transaction with Chavelas and

monitored the transaction as it occurred; and the Investigations

Case Agent Owen Putman (“Agent Putman”), who testified

about how Chavelas came to be a government informant and

the cooperation agreement.

When Chavelas was called to testify he spoke about his

cooperation agreement withthe government,the government’s

promise to recommend a sentence reduction, his status as an

illegal alien, and the government’s protection against deportation. When Chavelas testified about the transaction, he described his participation in the arrest of Ramirez, Marchan, and

Moreno. He also walked the court through the surveillance

video and the recorded conversations. On cross-examination,

Chavelas admitted that he had only heard the audio recording
4 No. 18-2758

three times and not until over a year after they were made. He

also stated that he heard phrases that were not transcribed.

Next, the government called Special AgentAdamStachecki

(“SA Stachecki”), who was one of the arresting officers, to

identify Marchan. SA Stachecki also testified that he personally

recovered the cocaine from the white car. Next, Group Supervisor Colin Dickey (“Supervisor Dickey”), testified that he

observed the surveillance operation and on cross-examination

discussed the importance of searching an informant before any

coordinated transaction. Finally,Intelligence Analyst Gabriella

Perez (“AnalystPerez”), introduced various charts and records

pertaining to Marchan and Ramirez’s telephone calls. The

defense introduced a stipulation that no fingerprint analysis

was performed.

Following the closeof evidence but beforedeliberations, the

parties agreed that the Spanish language recording would not

be given to the jury; only the translated transcript would be

provided. However, the jury later requested the audio recording, which the court sent back over Marchan’s objection.

Ultimately, the jury returned a guilty verdict on both

counts of the indictment. On July 26, 2018, Marchan was

sentenced to 60 months in the custody of the Bureau of Prisons.

II. ANALYSIS

Marchan argues that his trial was tainted with numerous

errors that deprived him of a fair trial. He first asserts that the

trial court abused its discretion when it denied his motion for

a mistrial following the government’s solicitation of inadmissible co-conspirator statements. He argues the court erred when
No. 18-2758 5

it limited his cross-examination of Chavelas regarding his bias.

He next argues the court erred when it permitted the jury to

consider the Spanish language audio recording of the transaction in addition to the transcript. And finally, he argues that a

new trial is required because of the cumulative effect of the

above errors. For the reasons below, we disagree and affirm

the decision of the district court.

A. Marchan’s Motion for Mistrial

Marchan argues that testimony elicited by the government

during the direct examinations of TFO Gomez, Agent Putman,

and Chavelas, was an attempt to show that Chavelas and

Ramirez arranged the transaction—all of which was inadmissible hearsay. He argues that because the government improperly introduced hearsay statements from Ramirez, the court

should have granted a mistrial. 

“A mistrial is appropriate when an event during trial has a

real likelihood of preventing a jury from evaluating the

evidence fairly and accurately, so that the defendant has not

been deprived of a fair trial.” United States v. Hilliard, 851 F.3d

768, 778 (7th Cir. 2017) (internal quotations and citation

omitted). Improperly admitted statements may be grounds for

a mistrial. See United States v. Cardena, 842 F.3d 959, 993 (7th

Cir. 2016) (discussing co-conspirator statements in the context

of United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978)). The

district court’s denial of Marchan’s motion for a mistrial is

reviewed for abuse of discretion. Hilliard, 851 F.3d at 778

(citations omitted).

Marchan suggests that over multiple days and from

multiple witnesses, the government elicited hearsay testimony
6 No. 18-2758

whichshowed Chavelas coordinated with Ramirez topurchase

cocaine from him. Absent this evidence, he argues, there was

no other evidence to establish his participation in the transaction. However, the contested statements were not admitted to

prove the truth of the matter asserted and when inadmissible

testimony was given, the court instructed the jury to ignore the

statements.

TFO Gomez testified about his meeting with Chavelas and

stated he believed he was meeting with him to discuss a

forthcoming narcotics transition. He then spoke about the

actions he took on December 28 and 30, 2016, leading up to the

narcotics transaction. He did not testify about what was said at

these meetings. TFO Gomez’s testimony was not given to

prove the truth of the matter asserted, Fed. R. Evid. 801(c)

(defining hearsay), instead, the statements were made to show

the course of the investigation. United States v. Cruse, 805 F.3d

795, 810 (7th Cir. 2015) (“statements offered to establish the

course of the investigation, ratherthan to prove the truth of the

matter asserted, are nonhearsay and therefore admissible.”)

(quoting United States v. Taylor, 569 F.3d 742, 749 (7th Cir.2009)).

While we are reluctant to permit “course of the investigation”

rationale for fear of its abuse or misuse, Carter v. Douma, 796

F.3d 726, 736 (7th Cir. 2015); see United States v. Haldar, 751 F.3d

450, 454 fn.1 (7th Cir. 2014), here the district court carefully

limited any controversial testimony.

Agent Putman’s testimony was similar to TFO Gomez. He

testified about his coordination with Chavelas and the course

of the investigation leading upto and including the transaction

on the evening of January 4, 2017. Like with TFO Gomez, the

defense did not object to the majority of these questions. When
No. 18-2758 7

the defense did object, the court sustained the objection and

instructed the jury to disregard the question and answer.

Because the contested statements are course of investigation

statements not hearsay, the court was correct to permit the

testimony. Cruse, 805 F.3d at 810.

The defense also takes issue with much of Chavelas’s

testimony. He argues that the identifications of Marchan were

inappropriate, but no objection was made at trial and the

identifications are not inadmissible underthe hearsay rule. The

defense next argues that the exchange where Chavelas discussed the purpose of the meeting with Ramirez was inappropriate. Typically, a co-conspirator’s statements are excluded

from the definition of hearsay, Fed. R. Evid. 801(d)(2)(E), but

here the government withdrew the Santiago proffer so the

district court never decided if there was a conspiracy as a

matter of law. However, even if Chavelas’s statements were

hearsay, any error is harmless because TFO Gomez and Agent

Putman already testified to the issues challenged, corroborating his testimony. Because Chavelas’s testimony was cumulative and corroborated, we find any error was harmless. See

United States v. Castelan, 219 F.3d 690, 696 (7th Cir. 2000)

(articulating the test for harmless error). Moreover, the few

objections that were made at trial were largely sustained

and the court instructed the jury to disregard the questions

and answers. “Absent a showing to the contrary, this Court

presumes that the jury limited its consideration of testimony in

accordance with the trial court's instruction.” United States v.

Bermea-Boone, 563 F.3d 621, 625 (7th Cir. 2009).
8 No. 18-2758

B. The Scope of Chavelas’s Cross-Examination

Before Chavelas testified, Marchan moved in limine to

explore his cooperation agreement with the government and

any mandatory minimum sentence he may or may not have

avoided. The government opposed the motion arguing that:

any cross-examination exploring Chavelas’s mandatory

minimum would likely confuse the jury andobfuscate the issue

at bar; and a mandatory minimum would be the result of the

government’s charging decisions not Chavelas’s cooperation

at present. The court prohibited any cross-examination of

Chavelas regarding any mandatory minimum he might face.

Now, Marchan argues that the court’s curtail of his crossexamination violated the Sixth Amendment’s confrontation

clause because he was unable to explore the witness’s bias

against him.

The Sixth Amendment guarantees criminal defendants the

right to confront witnesses against them. U.S. Const. amend VI.

When the district court’s limitations on cross-examination

directly implicates the core values of the Confrontation Clause

our review is de novo, otherwise we review for abuse of

discretion. United States v. Trent, 863 F.3d 699, 704 (7th Cir.

2017) (citations omitted).

Here, thedistrict courtpermittedMarchan to cross-examine

Chavelas about his underlying bias. Chavelas testified that he

believed his cooperation would result in a recommendation for

a reduced sentence and that his Guidelines sentence was

between 46 to 57 months. On cross-examination, Chavelas

testified that he faced a maximum penalty of 20 years incarceration and was hoping the government would recommend a
No. 18-2758 9

downward departure of 23 months. Because Marchan was able

to address Chavelas’s bias against him, the appropriate

standard of review is for abuse of discretion.

The gravamen of Marchan’s argument is that the government chose to levy a lesser charge against Chavelas. He

suggests that, had the government wanted to, the U.S. Attorney’s office would have been able to “find” an additional .2

grams of heroine to subject Chavelas to a harsher charge with

a mandatory minimum sentence of ten years. This is the kind

of reasonable limitation that the district court is expected to put

on cross-examination. At best, this argument would have

confused the jury and, at worst, it suggests impropriety by the

government without supporting evidence. United States v.

Cavender, 228 F.3d 792, 798 (7th Cir. 2000) (“The district court

retains wide latitude to impose reasonable limits on the scope

and extent of cross-examination based on concerns about

things like harassment, prejudice, confusion of the issues, or

interrogation that is repetitive or only marginally relevant.”).

Chavelas’s testimony at trial was sufficient to expose his

bias against Marchan and illustrate the benefits he might

receive in connection with his testimony. Confrontation Clause

concerns are ameliorated by exposing a witness’s motivation

to lie and biases towards the defendant. It is of secondary

concern “how much opportunity defense counsel gets to

hammer that point home to the jury.” United States v. Williams,

892 F.3d 242, 248 (7th Cir. 2018), cert. denied, 139 S. Ct. 467

(2018). The district court did not abuse its discretion by limiting

Marchan’s cross-examination of Chavelas.
10 No. 18-2758

Additionally, Marchan argues he should be permitted to

cross-examine Chavelas concerning his subjective understanding of the charges he was facing before his agreement to

cooperate with the government. He argues that the restriction

of his ability to inquire about the length of sentence Chavelas

hoped to avoid is reversible error. We disagree. 

While anything that motivates a witness to testify is

properly within the confrontation clause, Trent, 863 F.3d at 705,

here the exclusion of this line of questioning is not fatal to the

government’s case. As noted above, Chavelas’s testimony and

cross-examination was extensive. He was questioned about his

motivation for cooperating withthe government and testifying

at trial. He also testified about his maximum sentence, a

potentially reduced sentence, and his hopes that the government would recommend a sentence of 23 months.

As noted above, Chavelas’s testimony was sufficient to

expose his bias and interest. Accordingly, we need not address

whether the district court abused its discretion when it

prohibited cross-examination concerning an avoided mandatory minimum sentence.

C. The Jury’s Consideration of the Audio Recording

During Deliberations

Following trial, but before deliberations commenced, the

parties agreed the jury would not be given the audio recording.

Instead, they would only be furnished with a transcript

prepared by the Translator. After deliberations began, the jury

sent out a note requesting the audio recording of the transaction. The government agreed and, over objection, the court

permitted the recording to be considered by the jury, noting
No. 18-2758 11

that it was properly admitted into evidence even though it was

not published at trial. Marchan argues that the district court

erred when it permitted the jury to consider the Spanish

language audio of the transaction.

The district court has broad discretion when considering

what evidence to permit in the deliberation room when

exhibits are properly admitted at trial. United States v. Biggs,

491 F.3d 616, 623 (7th Cir. 2007). “We review the district court's

handling of the exhibits for a clear abuse of discretion.” Id.

Marchan’s principal argument in the presence of Spanish

speaking jurors means their Spanish language skills will

necessarily come into play when they listen to the audio.

Accordingly, they will wield undue influence in the jury room.

But, when the jurors were provided with the audio recording,

they were recalled into the courtroom and instructed that they

were to determine the accuracy of the translation given the

Translator’s qualification and the circumstances surrounding

its production. They were admonished not to rely on their own

Spanish language skills.

There is a rebuttable presumption that juries follow the

instructions given by the court. United States v. Flournoy, 842

F.3d 524, 528 (7th Cir. 2016). Here, Marchan has done nothing

to persuade us that the jury ignored the court’s instructions.

Our analysis in United States v. Magana, is informative. 118 F.3d

1173 (7th Cir. 1997). In Magana, the district court prohibited the

government from giving transcripts and audio recordings to

the jury that were not previously published at trial, despite

being properly admitted into evidence. But, through a misunderstanding, many transcripts were provided which were
12 No. 18-2758

not accompanied by a tape that had been published at trial.

Ultimately, the transcripts provided were removed from

deliberations and the jury was instructed to disregard any

transcript which did not have a corresponding audio recording. Magana, 118 F.3d at 1180–1184.

Here, the recording was properly admitted into evidence,

provided additional information not present in the transcript

(e.g., tone and clarity), and the district judge gave proper

limiting instruction. Therefore, we find that it was not an error

to give the recording to the jury during deliberations. Moreover, considering our precedent in Magana, even if there might

have been an error, it would have been harmless beyond a

reasonable doubt.

D. The Cumulative Error at Trial was Harmless

“Cumulative errors, while individually harmless, when

taken together can prejudice a defendant as much as a single

reversible error and violate a defendant's right to due process

of law.” United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001).

To establish cumulative error a defendant must show that

“(1) at least two errors were committed in the course of the

trial; (2) considered together along with the entire record, the

multiple errors so infected the jury’s deliberation that they

denied the petitioner a fundamentally fair trial.” Id. at 847

(quoting Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000)).

Here, Marchan points to perceived errors but, as noted

above, few errors occurred at trial. Any inadmissible hearsay

testimony elicited by the government during their case-in-chief

was stricken by the court and any error that resulted from

providing the jury with the audio recording during delibera-
No. 18-2758 13

tions was de minimis. When considered together, these errors

fail to show the defendant was deprived of a fair trial.

III. CONCLUSION

Because no one error, nor the sum of all the perceived

errors, was so egregious as to deprive Marchan a fair trial, we

affirm the conviction.