In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1561

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GUSTAVO CAMPOS,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 04 CR 156—John W. Darrah, Judge.

____________

ARGUED FEBRUARY 14, 2008—DECIDED SEPTEMBER 3, 2008

____________

Before RIPPLE, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Gustavo Campos was charged

with nine other defendants in a multi-count indictment

with a drug conspiracy and other drug-related crimes. A

jury convicted him as charged, and the district judge

sentenced him to a term of life imprisonment. Campos

contends on appeal that there was a fatal variance between the conspiracy charged in the indictment and the

government’s proof at trial. He also contends that the
2 No. 07-1561

district court erred in declining to give his proposed

multiple conspiracies jury instruction and in denying his

motion to suppress wiretap evidence. He challenges the

reasonableness of his sentence as well. We affirm.

I. Background

This case involves the large-scale drug-trafficking of

hundreds of kilograms of cocaine and thousands of pounds

of marijuana from Texas to Chicago from 2001 into the

early part of 2004. The trafficking had three phases, but it

involved a constant and common goal—the transportation

of large quantities of cocaine and marijuana from Texas

to Chicago for re-sale there. Another constant factor in

this situation was the guiding hand of Gustavo Campos

at the center of every aspect of the trafficking, from top to

bottom. In the first phase of operation, from the summer

of 2001 to March 2002, several trips were made to transport large quantities of cocaine and marijuana from Texas

to Chicago using semi-trailers which were towed by

semi-tractors. The drugs were hidden in false compartments located in the semi-trailers. In March 2002, Drug

Enforcement Agency (“DEA”) agents seized one of these

semi-trailers while en route from Texas to Chicago with

250 kilograms of cocaine. After this seizure, a second

phase began, lasting from about April 2002 to June 2003,

in which passenger vehicles including rental cars were

used to transport drugs and money. This phase ended in

June 2003, when the DEA seized a rental car after it had

been loaded with cash for a trip from Chicago to Texas;

the ensuing search led to the discovery of over $135,000
No. 07-1561 3

in hidden cash. At that point, a third, but familiar, phase

of operation began in which the use of semi-tractors/

trailers resumed as the mode of drug transportation. This

third and final phase spanned from July 2003 to February

2004. On February 10, 2004, DEA agents seized approximately 325 kilograms of cocaine from a Chicago warehouse, bringing the operating aspects of this trafficking

to a close, and shifting the governmental scrutiny of it

from investigation to prosecution.

The evidence at trial demonstrated that the three phases

of trafficking described above constituted a conspiracy.

Campos led the conspiracy, running all aspects—financing,

recruiting, and operations—from Chicago. Felix Herrera

was the head of the conspiracy’s Texas operations. He

coordinated the loading of drugs into semi-trailers and

passenger vehicles. Martin Vasquez supervised the

semi-tractor/trailer transportation and, in many cases,

drove the passenger cars between Chicago and Texas.

Campos, Herrera, and Vasquez participated in the conspiracy throughout all three phases.

In 2001 Campos was looking for drivers to transport

drugs from Texas to Chicago. So he asked Vasquez, a

former trailer salesman, if he knew of a truck driver

eligible to drive in all 48 contiguous states. Vasquez

introduced Campos to Jerry Maj, the owner of Jerry’s

Advanced Trucking located in Summit, Illinois. Campos

and Vasquez met with Maj, and Campos offered Maj

$25,000 to drive a semi-tractor/trailer round trip from

Chicago to Texas, returning with drugs, specifically

marijuana. Maj accepted the offer. At about the same time,
4 No. 07-1561

Jacek (or Jack) Zelek was working as a commercial truck

driver for Maj. Zelek’s semi-tractor needed repairs, so he

asked Maj for a loan of $20,000. Maj agreed to loan Zelek

the money, if Zelek would transport drugs from Texas

to Chicago. Zelek agreed.

In or around August 2001, Campos arranged to have

the inside of the semi-trailer outfitted with a false front

wall for purposes of concealing large quantities of drugs

and cash for transportation between Texas and Chicago.

Campos offered Vasquez $5,000 to travel to Texas with

Zelek, meet with Campos’s Texas contacts, including

Herrera, and deliver money to be hidden in the trailer.

Vasquez accepted. As a result, once the customization

of the semi-trailer was finished, Campos conducted a

final inspection and placed $1,475,000 in cash behind

the false wall. The next day Zelek and Vasquez made the

trip from Chicago to Texas. Upon their arrival, Vasquez

called Campos who said that he and Zelek would be

met by a group of men whom they should follow to

another location. A short while later, Vasquez and Zelek

were approached by some men, just as Campos had

indicated. Vasquez and Zelek followed the group to a

residential area where they parked the semi-tractor/trailer.

Zelek remained in the semi-tractor while Vasquez removed the false front wall from the semi-trailer and the

cash was removed. Campos repeatedly called Vasquez

to check on the status of the operation. Once their mission

was accomplished, Vasquez and Zelek returned to Chicago.

Zelek made six more round trips between Chicago and

McAllen or Roma, Texas, for the conspiracy from
No. 07-1561 5

To avoid confusion between the two brothers, we refer to 1

Maximino by his first name.

August to December 2001. On all but two, he returned

with a semi-tractor/trailer carrying drugs. Zelek was

directed to leave the semi-tractor/trailer at a particular

location, wait while the drugs and, typically vegetables,

which were used to hide the drugs, were loaded onto the

trailer, and then drive the semi-tractor/trailer back to

Chicago. Campos paid Maj $25,000 for Zelek’s first trip.

But after that, Maj demanded more money, so Campos

agreed to pay him $50,000 for each trip Zelek made for

the organization.

On December 4, 2001, DEA agents stopped Zelek’s

semi-tractor/trailer in Texas to conduct a routine inspection. They discovered 1,754 pounds of marijuana hidden

in the semi-trailer and placed Zelek under arrest. Shortly

after Zelek’s arrest, Campos began searching for a replacement driver. His brother, Maximino Campos, recommended a commercial truck driver, Rogelio (or Roger)

Perez.1

On December 19, 2001, Maximino, acting at Campos’s

direction, offered to pay Perez to make round trips between Chicago and Texas. Perez was interested, so he

was told to meet with Campos the next day. Perez met

with Campos who told Perez that if he were a loyal

member of the conspiracy, he would make a lot of money.

At the end of the meeting, Campos offered Perez a position with the conspiracy, which Perez accepted. Campos

told Perez that he would be in charge of transporting
6 No. 07-1561

empty semi-trailers from Chicago to Texas and returning

them to Chicago loaded with drugs. After the meeting

with Campos, Perez met with Vasquez.

A while later, Perez picked up an empty semi-trailer to

haul to Roma, Texas. Vasquez gave Perez detailed driving

directions from Chicago to Texas and a phone number

with which to contact him when Perez reached Texas.

Perez drove the semi-trailer to Texas. When he arrived, he

was unable to reach Vasquez, so he called Maximino who

told him that Herrera would meet him. Perez met with

Herrera, dropped off the empty semi-trailer, and then

returned to Chicago.

In early February 2002, Campos met with Perez to ask

him to make another round trip from Chicago to Texas.

Unlike the first trip, this trip would involve transporting

drugs hidden in a semi-trailer from Texas to Chicago.

Campos offered to buy Perez a semi-tractor so he could

make multiple round trips to and from Texas. Campos

told Perez that he had a five-year contract which required him to transport six tons of cocaine from Texas to

Chicago. Campos did not follow-up on his offer to buy

Perez a semi-tractor, so Perez attempted to borrow one

from a friend. But the friend was aware of the nature of

the trip and refused to lend his semi-tractor. Campos

told Perez to offer the friend more money ($40,000), but

the friend still refused. A few days later, Campos summoned Perez to a meeting at which he expressed frustration with Perez’s inability to obtain a semi-tractor. Campos

told Perez that people in Texas were waiting for him. Perez

responded that he would make one more attempt to
No. 07-1561 7

obtain a semi-tractor. He contacted law enforcement

instead.

In late February 2002, Perez, by then working with the

DEA, told Campos that he found a semi-tractor and that

his friend Willie Chester, a/k/a “Rock,” was willing to

make the round trip between Chicago and Texas, bringing

back drugs. Campos met with Rock to confirm that he

could obtain the semi-tractor and make the trip. Satisfied

with Rock, Campos paid him $9,000 in cash. Unbeknownst

to Campos, however, Rock, like Perez, had begun

working with the DEA. Rock made the round trip between

Chicago and Texas. During the trip he stayed in constant

contact with Perez who stayed in constant contact with

Campos.

On March 1, 2002, Rock, escorted by the DEA, returned

to Chicago with the semi-tractor/trailer loaded with

250 kilograms of cocaine. The DEA seized the semi-trailer,

searched it, and discovered the cocaine. When Campos

learned of the this, he called Perez to a meeting at

Maximino’s house. When Perez arrived, he was taken by

Campos and another person down to the basement. The

other man pulled out a gun and pointed it at Perez

while Campos demanded to know what happened to the

semi-trailer and where Rock lived. Campos threatened

Perez that he would be killed if the semi-trailer was not

found. Perez claimed he had nothing to do with the loss

of the semi-trailer and agreed to search for it with Campos.

After the March 1 seizure, the use of semi-tractors/

trailers was stopped in favor of using passenger vehicles

with hidden compartments, thus entering the second
8 No. 07-1561

phase of the conspiracy. Like the semi-trailers, the passenger vehicles were loaded with cash in Chicago and with

drugs in Texas. Campos met with Vasquez to discuss

this new method of transportation. Beginning in June

2002, Vasquez made round trips between Chicago and

Texas in passenger vehicles. He made a total of seven

round trips, using a rental car for all but one. Campos

indicated that the cars should be rented for one week in

order to provide enough time to get the drugs from Texas

to Chicago. He instructed Vasquez to rent a Lincoln Town

Car or Mercury Grand Marquis because they had large

frames in which to easily conceal money and drugs. When

Vasquez used a rental car, Campos arranged for the

dates for the rental and for someone to transport Vasquez

to pick up the rental car at the airport. Shortly after

Vasquez drove a rental car from the lot, he was met by a

person identified by Campos to whom Vasquez turned

over the car. The car was taken away and loaded with

cash, hidden behind the dashboard. After that, which

usually took one or two days, Campos notified Vasquez

that the rental car was ready and where he could pick it

up. Vasquez picked up the car and drove it, with the

cash, to Texas.

Once Vasquez reached Texas, he called Campos, who

in turn contacted Herrera. Then the rental car was picked

up, the money removed, and the drugs were hidden

inside. This process typically lasted several days. When it

was completed, the car was returned to Vasquez who

drove it, along with the drugs, back to Chicago. On the

way, Vasquez was in telephone contact with Campos

who wanted to ensure that Vasquez was not appre-
No. 07-1561 9

hended at any checkpoint en route to Chicago. When

Vasquez arrived in Chicago, he contacted Campos who

had someone pick up the rental car so the drugs could be

removed. After this process was complete, the rental car

was returned to Vasquez who returned it to the airport

car rental. Campos paid Vasquez $5,000 per trip.

On June 10, 2003, Campos arranged to have a car

rented by Vasquez parked at a predetermined location. As

with prior trips, Vasquez went to the location as instructed by Campos to pick up the car but was unable

to find it. He called Campos and reported that he could not

find the car. Campos contacted the persons who had

parked the car to confirm the exact location. He did not

know that the DEA had seized the car, which contained

approximately $135,000 in cash, pursuant to a warrant.

This seizure led to the end of the organization’s use of

passenger cars to transport drugs and money—the end

of the second phase of the conspiracy.

Campos decided to return to the use of semi-tractors/

trailers to transport drugs from Texas to Chicago; thus

began the third phase of the conspiracy. Campos searched

for a driver, a semi-tractor/trailer, and a warehouse in

which to unload the drugs in Chicago. With Vasquez’s

help, Campos made contact with Joseph Bleka, the lessor

of a warehouse on 4800 S. Central Avenue, Chicago,

Illinois. Vasquez knew Bleka from his involvement in

a drug delivery Perez had made for the organization in

2002. Vasquez asked Bleka if they could use his warehouse again. Bleka agreed.

So, beginning in July 2003, the conspirators again transported drugs from Texas to Chicago using semi-trac-
10 No. 07-1561

tors/trailers, unloading the drugs at Bleka’s warehouse.

Campos hired the individuals who transported the

drugs from Texas to Chicago. He coordinated the loading

of the drugs in Texas with Herrera and the arrival of the

drugs in Chicago with Vasquez. Campos paid Bleka $5,000

for each shipment of drugs that was unloaded in his

warehouse. On February 10, 2004, the DEA searched

Bleka’s warehouse, seizing 325 kilograms of cocaine and

3.7 kilograms of marijuana. Campos was arrested that

night, and the operations of the drug organization ceased.

A superseding indictment charged that from in or about

the summer of 2001 until on or about February 10, 2004,

Gustavo Campos, Maximino Campos, Felix Herrera,

Martin Vasquez, Joseph Bleka, and others agreed and

conspired “knowingly and intentionally to possess with

intent to distribute and to distribute controlled substances, namely, in excess of five kilograms of mixtures

containing cocaine, and in excess of 100 kilograms of

marijuana[.]” The indictment alleged that as part of the

conspiracy Gustavo Campos was the leader of a largescale drug distribution network based in Chicago which

was responsible for transporting cocaine and marijuana

from Texas to Chicago for redistribution. It was alleged

that the drugs were transported “in a variety of ways,

including by concealing the narcotics in over-the-road

semi-trailers and in passenger vehicles.” Gustavo Campos

was alleged to have had overall responsibility for the

conspiracy. A jury found Campos guilty as charged. He

was sentenced to a term of life imprisonment. Campos

appealed.
No. 07-1561 11

II. Discussion

Campos makes four arguments on appeal. He argues

first that there was a fatal conspiracy variance because

the government proved three distinct conspiracies at

trial instead of the single conspiracy alleged in the indictment. He argues that the district court erred in declining

to give his proposed multiple conspiracies instruction.

The court also erred, he says, in denying his motion to

suppress the wiretap evidence because the government

failed to establish necessity for the wiretap. Lastly, he

challenges the reasonableness of the sentence imposed,

arguing the district court failed to properly consider the

factors in 18 U.S.C. § 3553 and erroneously dismissed

the mitigating factor of his pretrial conditions of confinement. We address each of these arguments in turn.

A. Conspiracy Variance

Campos contends that there was a fatal variance between

the single conspiracy charged in the indictment and the

government’s proof of three separate conspiracies at trial.

A conspiracy variance claim is treated as a challenge to

the sufficiency of the evidence, which is reviewed under

a highly deferential standard. United States v. Thomas,

510 F.3d 714, 722 (7th Cir. 2007). We view the evidence in

the light most favorable to the government and draw all

reasonable inferences from the evidence in the government’s favor. Id.

To overturn a conspiracy conviction based on a variance,

a defendant must show a variance between the charge

in the indictment and the evidence at trial and that he
12 No. 07-1561

Rogelio Perez testified that the Spanish term “paisas” referred

2

to fellow Mexicans, and that when Campos used the term, it

was understood to mean Mexicans involved in the drug trade.

was prejudiced by the variance. United States v. Womack,

496 F.3d 791, 794 (7th Cir. 2007). The question of whether

there is a single conspiracy is for the jury. Id. “ ‘Even if the

evidence arguably established multiple conspiracies,

there is no material variance from an indictment charging

a single conspiracy if a reasonable trier of fact could

have found beyond a reasonable doubt the existence of

the single conspiracy charged in the indictment.’ ” Thomas,

510 F.3d at 722 (quoting United States v. Townsend, 924

F.2d 1385, 1389 (7th Cir. 1991)).

Campos argues that the government introduced evidence

at trial of three distinct conspiracies involving three

different modes of operation, co-conspirators, objectives,

and big bosses: (1) an agreement with Vasquez, Maj, Zelek,

certain “paisas” in Mexico, and others to bring large 2

amounts (250 to 350 kilograms) of cocaine to Chicago for

trans-shipment in the summer and fall of 2001; (2) an

agreement with Vasquez, other unknown co-conspirators,

and different paisas in Mexico to bring small amounts

(5 to 8 kilograms) of cocaine to Chicago for local shipment

in the fall and winter of 2002; and (3) an agreement with

Vasquez, Bleka, and various others to bring large amounts

(hundreds of kilograms) of cocaine to Chicago for transshipment in the fall and winter of 2003-2004. However, a

reasonable jury could have found the existence of the

single, overall conspiracy to distribute substantial
No. 07-1561 13

amounts of cocaine and marijuana as charged in the

indictment.

Campos concedes that he and Vasquez were involved

in substantial drug activity, but he contends that there

were three similar but distinct and separate conspiracies,

even though each involved the transportation of drugs to

Chicago. However, the evidence supports a reasonable

inference that each of what Campos alleges to be distinct

conspiracies shared a common objective or purpose, “the

defining characteristic of a conspiracy.” United States v.

Thomas, 520 F.3d 729, 733 (7th Cir. 2008). That common

objective was to transport cocaine and marijuana from

Texas to Chicago for redistribution. In particular, the

evidence established that in February 2002 Campos told

Perez that he had a five-year contract requiring him to

transport six tons of cocaine from Texas to Chicago. The

fact that the means of transporting the drugs to Chicago

changed from one phase to another and back again does

not necessarily render each phase a distinct conspiracy.

See United States v. Bullis, 77 F.3d 1553, 1560 (7th Cir.

1996) (explaining that the fact that the conspirators generally changed the pricing levels each year of the conspiracy did not make each year a separate conspiracy);

United States v. Lynch, 699 F.2d 839, 843 (7th Cir. 1983)

(“The mere fact . . . that the methods used to perpetrate

the scheme changed slightly does not indicate that one

conspiracy has ended and that another has begun . . . .”).

Nor does the fact that the three phases of the conspiracy

involved different participants (other than Campos,

Vasquez and Herrera), turn the single conspiracy

into separate conspiracies. See Bullis, 77 F.3d at 1560
14 No. 07-1561

(“[T]urnover in the members of a conspiracy does not

transform a single conspiracy into multiple conspiracies

so long as there is a continuation of the original conspiracy’s purpose.”). While some participants in the conspiracy

changed, the core participants—Campos, Vasquez, and

Herrera—remained the same. The evidence allowed the

jury to find that Campos not only participated in each

of three phases of a single conspiracy, but also that he

was the leader of each stage and directed his co-conspirators in each. Furthermore, the temporal separation

between each of the phases was minimal and limited to

that necessary to allow the conspirators to regroup and

change their methods used to carry out the conspiracy

in order to evade detection.

The defendant likens his situation to that in United

States v. Johnson, 515 F.2d 730 (7th Cir. 1975), where we

held that the variance between the indictment and proof

at trial required reversal of the conspiracy conviction. But

the facts in Johnson were quite different than those here.

Johnson and six others were charged with a conspiracy

to dispose of stolen motor vehicles in interstate commerce. Johnson participated in the purchase of three

stolen vehicles. Id. at 731. Most of the evidence at trial,

however, related to the activities of Johnson’s co-defendants, including Joseph Altvare, who attempted to

dispose of six other vehicles through a used car lot. There

was no evidence that Johnson had any connection to

those vehicles, the car lot, or any of the other people

involved, except Altvare. Id. at 733. We found that the

evidence linked Johnson to only Altvare and held that

it was insufficient to establish that Johnson participated
No. 07-1561 15

in the overall conspiracy charged in the indictment. Id. at

731-33. In contrast, Campos admits that he participated in

each of the three alleged separate conspiracies. He conceded “knowing all the players,” “knowing all the parts,”

and “participating in everything[.]”

Campos also sees similarities between his case and

United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), in

which we held the evidence was insufficient to establish

a single overall conspiracy. Id. at 742-43. In Varelli, the

defendants were charged with a conspiracy to hijack,

carry away, and distribute interstate shipments of merchandise. Id. at 741. The evidence at trial proved that

some participants were involved in hijacking silver shipments and Polaroid equipment, but others were involved

only in the silver hijackings and had no discussions

about other hijackings. Id. at 743-44. The fact that the two

conspiracies had some common participants was insufficient to establish one overall conspiracy. Id. at 744. We

explained: “The conspirators in the Polaroid hijacking

did not contemplate a series of hijackings in which all

would partake. Rather, the Polaroid hijacking represented

a single transaction with a single purpose.” Id. In contrast,

here, the evidence was sufficient for the jury to find that

Campos was involved in each of the three allegedly

separate conspiracies that shared one common objective.

Furthermore, the variance in Varelli proved fatal because

the jury was not instructed that they could find multiple

conspiracies and still find the defendants guilty. Id. at 747.

Here, though, the jury was instructed that they could

find multiple conspiracies and still find Campos
16 No. 07-1561

We thus do not reach the argument that the convictions on 3

the substantive counts should be reversed because the jury

was given a Pinkerton instruction.

guilty—provided the proven conspiracies were within

the charged conspiracy.

We conclude that the evidence at trial was sufficient to

prove beyond a reasonable doubt that Campos participated in the single, overarching conspiracy charged in

the indictment. And no variance existed between the

conspiracy charged and the proof at trial: The indictment

alleged a conspiracy to transport substantial amounts

of cocaine and marijuana from Texas to Chicago for

redistribution; the evidence at trial was consistent with

these allegations.3

B. Multiple Conspiracies Instruction

Campos argues that the district court erred in refusing

to give his proposed multiple conspiracies jury instruction. A decision regarding a jury instruction is reviewed

for an abuse of discretion. United States v. Van Sach, 458

F.3d 694, 702 (7th Cir. 2006). A defendant is entitled to

an instruction on his theory of defense only if “(1) the

instruction provides a correct statement of the law; (2) the

theory of defense is supported by the evidence; (3) the

theory of the defense is not part of the government’s

charge; and (4) the failure to include the instruction

would deprive the defendant of a fair trial.” United States

v. Millet, 510 F.3d 668, 675 (7th Cir. 2007). Whether an
No. 07-1561 17

instruction correctly states the law is reviewed de novo.

Van Sach, 458 F.3d at 702.

Campos’s proposed multiple conspiracies instruction

read:

Count One of the indictment charges that defendant Gustavo Campos knowingly and deliberately

entered into a conspiracy to possess with intent to

distribute and to distribute cocaine.

In order to sustain its burden of proof for this

charge, the government must show that the single

master conspiracy alleged in Count One of the

indictment existed. Proof of separate or independent conspiracies is not sufficient. 

In determining whether or not any single conspiracy has been shown by the evidence in the case

you must decide whether common, master, or

overall goals or objectives existed which served as

the focal point for the efforts and actions of any

members to the agreement. In arriving at this

decision you may consider the length of time the

alleged conspiracy existed, the mutual dependence

or assistance between various persons alleged to

have been its members, and the complexity of the

goal(s) or objective(s) shown. 

Even if the evidence in the case shows that

Defendant Campos was a member of some conspiracy, but that this conspiracy is not the single

conspiracy charged in the indictment, you must

acquit Defendant Campos of this charge.
18 No. 07-1561

Unless the government proves the existence of

the single master conspiracy described in the

indictment beyond a reasonable doubt, you must

acquit defendant Campos of this charge.

The district court said that under United States v. Wilson,

134 F.3d 855 (7th Cir. 1998), this instruction was erroneous.

The experienced district judge is correct. The proposed

instruction required the jury to acquit if it found that

Campos was a member of some conspiracy, but not a

conspiracy charged in the indictment. In Wilson, we

held that it was error to instruct the jury that if the government fails to prove the exact conspiracy charged in the

indictment, the jury should acquit. Id. at 864-65. And we

added that such an instruction “is always inappropriate

as a matter of law.” Id. at 865. This is because the “prosecutor may elect to proceed on a subset of the allegations

in the indictment, proving a conspiracy smaller than the

one alleged, so long as the subset is also illegal.” Id.

(internal citation omitted).

The district court gave the following multiple conspiracies instruction: 

If you find there was one overall conspiracy as

alleged in Count 1 and that a particular defendant

was a member of that conspiracy, you should

find that defendant guilty of Count 1.

If you find there were two or more conspiracies

and that a particular defendant was a member of

one or more of these conspiracies, you may find

that defendant guilty of Count 1 only if you further
No. 07-1561 19

find that this proven conspiracy was included

within the conspiracy alleged in Count 1. If, on the

other hand, the proven conspiracy is not included

within the conspiracy alleged in Count 1, you

should find that defendant not guilty of Count 1.

We approved of a nearly identical instruction in Wilson.

That instruction informed the jury that if it found the

defendant was a member of a conspiracy that was a subpart of the charged conspiracy, then it should find the

defendant guilty. Id. Here, as in Wilson, the jury’s guilty

verdict “concluded that [Campos was a] member[] of a

conspiracy and that, at a minimum, this conspiracy was

part of the single conspiracy alleged by the Government.”

Id.

Campos contends that Wilson is limited to defendants

who played a finite role in a larger conspiracy which

included parts and players unfamiliar to the defendants.

He points to no authority to support this reading, and we

are unaware of any. Furthermore, United States v. Mansoori,

304 F.3d 635 (7th Cir. 2002), suggests that his view is

incorrect. One of the defendants in Mansoori, Terry Young,

was a leader and high-ranking member of a gang

engaged in drug trafficking. In fact, he was in charge of the

gang’s drug sales. Id. at 642-43. As such, Young would

have played a substantial, broad role in the drug conspiracy—a role similar to Campos’s role here. In addressing the Mansoori defendants’ challenge to the multiple

conspiracies instruction, we cited Wilson with approval.

At oral argument Campos also argued for the first time

that the multiple conspiracies instruction was improper
20 No. 07-1561

because it did not require the jury to unanimously find

that he participated in any particular subset of the

charged conspiracy, if the jury were to find that he participated in a subset conspiracy rather than the charged

conspiracy. He did not propose a unanimity instruction

at trial and waited until his appellate oral argument to

raise the issue. Therefore, this argument is waived. United

States v. Vallery, 437 F.3d 626, 629 (7th Cir. 2006) (finding

that argument raised for first time at oral argument

is waived).

Even if not waived, Campos would not prevail on this

argument. In Mansoori, we rejected this type of argument.

We stated: “Even if the jurors were of different minds as

to the precise parameters of the conspiracy, the instruction

required them all to agree that the defendant joined a

conspiracy that was within the ambit of the conspiracy

alleged in the indictment.” Mansoori, 304 F.3d at 657. We

held that the instruction properly required unanimity

with respect to the essential elements of a conspiracy. But

even if the instruction had been defective, we concluded

that giving it was harmless error because the evidence

overwhelmingly proved that the defendants participated

in a unitary conspiracy. Id. So, too, here. Even if the

multiple conspiracies instruction had been improper, the

evidence that Campos participated in the single overall

conspiracy as charged was so overwhelming that any

error in giving the instruction was harmless.

Campos suggests that the district judge’s refusal to

give his proposed instruction was based on the erroneous

conclusion that it was sufficient if the alleged multiple
No. 07-1561 21

conspiracies occurred within the same time frame as that

of the charged conspiracy. That is not what the judge

said, though. He stated, “so long as there was one

overall conspiracy alleged . . . so long as these included, socalled included conspiracies occurred within that time

and as generally charged in the indictment, there is no

right to give the instruction proposed by Campos.” (Trial

Tr. 1730) (emphasis added). Thus, we understand the

district judge to have required not only temporal proximity, but also that the included conspiracies were “as

generally charged,” that is, subparts of the charged conspiracy. The jury instruction given corroborates this

understanding of the district court’s ruling. Accordingly,

the district judge did not abuse its discretion in refusing

to give Campos’s proposed multiple conspiracies instruction.

C. Wiretap Evidence

Campos contends that the wiretap applications failed

to meet the standard of necessity, and thus the district

court should have suppressed the evidence obtained

from the wiretaps. 18 U.S.C. § 2518(1)(c) requires that

each application for an interception of a wire, oral, or

electronic communication include: “a full and complete

statement as to whether or not other investigative procedures have been tried and failed or why they reasonably

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

dangerous[.]” This has become known as the exhaustion

or necessity requirement. United States v. Fudge, 325 F.3d

910, 919 (7th Cir. 2003); United States v. Thompson, 944 F.2d
22 No. 07-1561

1331, 1340 (7th Cir. 1991). However, this provision

should not be understood as requiring absolute necessity.

Thompson, 944 F.3d at 1340. It does not require “that any

other investigative procedure be tried first before an

order is issued for the interception of wire communications,” United States v. Anderson, 542 F.2d 428, 431 (7th Cir.

1976); see also Thompson, 944 F.2d at 1340, or that a wiretap

be used as a last resort, United States v. McLee, 436 F.3d 751,

762-63 (7th Cir. 2006); Thompson, 944 F.2d at 1340. This

provision requires only that the success of other

methods of investigation appears unlikely or too dangerous. Thompson, 944 F.2d at 1339-40; Anderson, 542 F.2d at

431. The government’s burden of proving necessity “is not

great” and its compliance with the necessity requirement is “ ‘reviewed in a practical and common-sense

fashion.’ ” McLee, 436 F.3d at 763 (quoting United States v.

Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995)). We review a

district court’s finding of necessity for an abuse of discretion. United States v. Dumes, 313 F.3d 372, 378 (7th

Cir. 2002).

Each of the five affidavits supporting the applications

in this case explained that normal investigative techniques had been tried with limited or no success or appeared reasonably unlikely to succeed if attempted in

the investigation. The affidavits stated that the agent

(Officer Todd Arthur) believed, based on his experience

and training, that subpoenaing members of the Campos

organization to testify before a grand jury would be of no

value because it was very likely that they would flee

the jurisdiction instead of testifying, but if they were to

appear to testify, they would invoke their Fifth Amend-
No. 07-1561 23

ment rights. The affidavits also said that grand jury

subpoenas might permanently hinder efforts to obtain

statements from members of the Campos organization.

These facts support the finding of necessity. See United

State v. Gray, 410 F.3d 338, 343 (7th Cir. 2005) (finding an

affidavit that stated dealers were likely to invoke Fifth

Amendment if subpoenaed to testify before grand jury

satisfied the necessity requirement). The affidavits

further stated that based on the agent’s experience, interviews of the subjects or their associates would not be

useful in producing sufficient information about the

conspirators and conspiracy, responses to interviews

would include a significant amount of false information,

and interviews would alert other members of the conspiracy, compromising the investigation. These facts also

support the finding of necessity. See United States v.

Adams, 125 F.3d 586, 595-96 (7th Cir. 1997) (finding an

application which stated that questioning individuals

would alert them and possibly others higher up in the

organization to the fact of the investigation met necessity

requirement). The affidavits indicated that law enforcement had not identified specific locations where the

Campos organization stored cocaine, drug proceeds, or

other indicia of drug trafficking, so the use of search

warrants was not a feasible at the time. Again, these facts

show necessity. Dumes, 313 F.3d at 379 (finding necessity

shown because, inter alia, agents were unsuccessful in

gathering enough evidence of drug storage locations).

As for surveillance and related interception, the affidavits stated that physical surveillance had been attempted

numerous times and had proven useful, but had not
24 No. 07-1561

resulted in sufficient evidence of the criminal activity

being investigated. In addition, continued surveillance

was likely to alert the suspects of the investigation,

causing them to become more cautious in their criminal

activities, flee to avoid further investigation and prosecution, and otherwise compromise the investigation. These

facts support a finding of necessity. See id. (finding necessity where additional physical surveillance was believed

to increase the risk that the targets would be alerted to

the investigation); United States v. Ceballos, 302 F.3d 679,

683-84 (7th Cir. 2002) (finding fact that physical surveillance would likely alert the subjects to the investigation

showed necessity); Adams, 125 F.3d at 595-96 (concluding

necessity shown where other surveillance techniques

were considered too dangerous and could result in detection of the investigation).

The affidavits further stated that no undercover agent

had been used to try to infiltrate the conspiracy because of

the close and secretive nature of the organization and that

use of an undercover agent was perceived as too dangerous. These facts also support a finding of necessity. See

Gray, 410 F.3d at 343 (finding necessity based in part on

fact that an undercover agent would be unlikely to infiltrate the organization because of its insular nature); United

States v. Zambrana, 841 F.2d 1320, 1331-32 (7th Cir. 1988)

(finding necessity based on evidence that informants and

undercover agents could not infiltrate the closely run

family organization). 

The affidavits also indicated that the government used

two confidential sources who had provided useful infor-
No. 07-1561 25

mation about the conspiracy. But one source was on

the fringe of the organization and had no direct contact

with the mid- or high-level members of the organization,

and the other was no longer cooperating, so he could

provide no more than historical information. The affidavits identified one cooperating witness by name, but

he was no longer actively cooperating and had been

incarcerated for a while, so he appeared unable to provide

information to fully identify current members of the

organization, their roles, the sources of supply, and like

details. This makes this case like Gray, 410 F.3d at 343,

where necessity was based in part on the fact that confidential informant #1 could not provide current information because of his incarceration and confidential informant #2 could not identify the source, couriers, or customers. Pen registers, toll and trace records of a phone

utilized by one conspirator were also used, but these had

their limitations as well.

Finally, the four subsequent applications for wiretaps

demonstrate the continuing need for the wiretaps. For

example, the May 22, 2003, affidavit indicated that a

wiretap on target phone 2 was needed because Campos

was using that phone to contact at least one other

member of the organization with whom Vasquez was not

in contact with over target phone 1. The June 5, 2003,

affidavit stated that Vasquez was using target phone 1 to

contact at least one other member of the organization

with whom Campos was not in contact over target

phone 2. Later affidavits stated that these uses were

continuing. Thus, the wiretap on target phone 2 and

continued authorizations for wiretaps on target phones 1
26 No. 07-1561

and 2 were needed to obtain evidence as to the full scope

of the drug trafficking and related activities.

Campos argues that where normal investigative techniques are working and working well, a wiretap is not

necessary. In Zambrana, 841 F.2d at 1331-32 though, we

noted that normal investigative techniques had been

successful to some extent, but nonetheless found a

wiretap necessary because it did not appear that normal

techniques were likely to identify all co-conspirators at

all levels of the drug conspiracy. Campos also argues

that at some point after months of wiretapping, the

need for a wiretap ends. But he cites no authority

placing a time limit on necessity, and we are unaware of

any. True enough, wiretaps should not be allowed to run

indefinitely. But whether the need for a wiretap has

played out should be evaluated on an investigation-byinvestigation basis, and there is no indication that the

use of wiretaps here exceeded what was reasonably

necessary to identify and disassemble a major drug

organization.

Campos further argues that the government had all the

evidence it needed to prosecute this case such that the

wiretaps served no purpose. But using a wiretap to

obtain additional incriminating evidence against a defendant is not problematic. See Fudge, 325 F.3d at 919 (rejecting

argument that wiretap was unnecessary because there

was enough evidence to prosecute each conspirator);

Adams, 125 F.3d at 596 (rejecting claim that even if first

wiretap was necessary, the second was not because the

government had obtained sufficient information from

the first). Even if the government had enough evidence
No. 07-1561 27

to indict Campos prior to obtaining the wiretaps, this

fact would not preclude a finding of necessity. See McLee,

436 F.3d at 763. After all, the government’s burden of

proof at trial is substantially higher than its burden in

obtaining an indictment. And the government was

entitled to attempt to identify the full extent of this organization and its operatives.

Campos submits that generalizations and boilerplate

language do not satisfy the necessity requirement. Other

circuits have indicated that the government may not

make the required showing of necessity with “mere

boilerplate recitation of the difficulties of gathering usable

evidence” but must “base its need on real facts” specific

to “the case at hand.” United States v. Oriakhi, 57 F.3d 1290,

1298 (4th Cir. 1995). These circuits, however, have

upheld wiretap authorizations based on applications that

contain statements about both general investigative

experience in the type of crime involved and the particular

facts of the case at hand. United States v. Vento, 533 F.2d

838, 850 n.19 (3d Cir. 1976); United States v. DiMuro, 540

F.2d 503, 510-11 (1st Cir. 1976). That is what we have here.

We caution the government, though, that the repeated

use of boilerplate from one application to the next is

discouraged. But at least here we do have additional new

information in each successive affidavit, which was

sufficient to justify the issuance of each of the wiretap

authorizations.

Nonetheless, the government’s affidavits supporting

its applications for the wiretaps established that the

wiretaps were not the first investigative method used,

which is “[t]he evil we are trying to avoid[.]” Fudge, 325
28 No. 07-1561

F.3d at 919; Thompson, 944 F.3d at 1340. The affidavits

showed the necessity for the wiretaps and thus satisfied

§ 2518(1)(c). This ruling does not lead to the conclusion

that ordinary investigative procedures always will be

insufficient to investigate a drug conspiracy. The district

courts, and we, will look at each case individually, considering the practicalities of each investigation and using our

good reason and common sense. Accordingly, we hold

that the district court did not abuse its discretion in

granting the applications for the wiretaps and in admitting the evidence obtained through the wiretaps.

Before leaving this issue, we must comment on the

statement in Campos’s opening brief that the Chief Judge

and the district judge, in approving the wiretap applications, merely “co-signed” the government’s laziness. This

is a serious allegation that is unsupported by any factual

basis. The affidavits and the record at trial demonstrate

that government agents undertook arduous efforts to

investigate this drug operation. It is also clear that the

affidavits received the rigorous and independent review

that is required by law. The judges were simply exercising

their discretion in determining whether the government

had shown necessity for the wiretaps. We find no abuse

of discretion here, and Campos’s disagreement with

that view does not justify such a pejorative and undeserved

remark. 

D. Sentencing Issues

The defendant also argues that his sentence is both

procedurally and substantively unreasonable. Specifically,
No. 07-1561 29

Campos refers to “various mitigating factors” in his brief 4

but identifies only one: the conditions of his pretrial confinement; we accordingly limit our discussion to that factor.

Campos does not contend that the district court erred in 5

calculating the applicable guidelines range—a life sentence. 

he contends that the district court did not consider the

sentencing factors in § 3553(a) or the mitigating factor of

his pre-trial conditions of confinement. We review 4

whether a district court followed post-Booker sentencing

procedures under a non-deferential standard of review.

United States v. Price, 516 F.3d 597, 606 (7th Cir. 2008).

Under the post-Booker sentencing procedures, a district

court is to: “(1) calculate the applicable Guidelines range;

(2) give the defendant an opportunity to identify any of

the 18 U.S.C. § 3553(a) factors that might warrant a

non-Guidelines sentence; and (3) state which factors

influenced the final sentence.” United States v. Millet, 510

F.3d 668, 680 (7th Cir. 2007). The court need not make

factual findings as to each of the sentencing factors; it is

sufficient that the record shows that the court considered

them. Price, 516 F.3d at 606. This procedure was properly

followed here.5

The district court considered the presentence investigation report and the government’s sentencing memorandum as well as the defendant’s objections and corrections

to that report. And the court heard the parties’ arguments

at the sentencing hearing. The defendant had an opportunity to argue the § 3553(a) factors and other circumstances

that he believed justified a lower sentence, and he did so.
30 No. 07-1561

In a conversation with Herrera on June 3, 2003, for example, 6

Campos complains that business has been “dead” and “[p]eople

are not getting addicted.”

The court’s comments at sentencing reflect proper consideration of the § 3553(a) factors and other circumstances

urged by the defendant; however, the court did not

conclude that they justified a below guidelines sentence.

In sentencing Campos, the district court first considered

the nature and seriousness of the offense and the defendant’s conduct: “Gus Campos stands before the court

convicted as the leader of a narcotics conspiracy which was

responsible for the distribution of in excess of 1,000

kilograms of cocaine, probably greatly in excess of that.”

The court found it “hard to . . . envision an offense

more egregious, [and] that has broader ramifications” than

that committed by Campos over several years. The

court also considered the mitigating factor that Campos

had no prior criminal history. As for aggravating circumstances, the court found that Campos’s conduct was

motivated by nothing other than “personal greed and by

money” at the price of ruining others’ lives. The court

referred to the “chilling” tapes of conversations between

Campos and others and the “no holds barred” nature in

which he approached the cocaine distribution business.6

The court also considered the fact that Campos was

bright, having graduated 13th of 261 students in his

high school class, and could have made a real contribution

to society but chose not to do so. The court then determined that a sentence within the guideline range was
No. 07-1561 31

He complains that he was incarcerated in county jail facilities 7

without: work or education programs; adequate recreation,

(continued...)

necessary to comply with the purposes of § 3553(a)(2). The

court found that deterrence was especially important

in this case “because the rewards, the money is obviously

so lucrative . . . that it would induce people such as

yourself to take the risk of this kind of incarceration

simply for financial reward.” Based on its meaningful

consideration of these factors, the court determined that

a sentence within the guideline range was “clearly” and

“eminently” reasonable. We conclude, as the district

judge’s comments at the sentencing hearing demonstrate,

that the judge properly considered the § 3553(a) factors

and adequately explained how they affected his determination of the sentence.

Campos also argues that the sentence itself was unreasonable. We review a sentence for reasonableness in

light of the factors in § 3553(a). United States v. Tahzib, 513

F.3d 692, 694 (7th Cir. 2008). A sentence properly calculated

within the guidelines range is presumed reasonable. Rita

v. United States, --- U.S. ----, 127 S. Ct. 2456, 2462-68 (2007);

Tahzib, 513 F.3d at 694. A defendant can rebut this presumption by showing that his sentence is unreasonable

when considered against the § 3553(a) factors. United

States v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008). Campos

has not rebutted this presumption.

Campos asserts that the district court failed to

consider his pretrial conditions as a mitigating factor. The 7
32 No. 07-1561

(...continued) 7

security, or medical care, particularly for his ear condition;

kosher and nutritional foods; and religious services, a law

library, newspapers or magazines. He also complains that his

visitation with family and counsel was restricted and that the

jail facilities were such that he could not review the electronic

evidence against him. 

record, however, establishes that the district judge did

consider Campos’s pretrial conditions even though the

judge did not view them as a proper consideration for

mitigating the sentence. Pretrial conditions of confinement are not included in the § 3553(a) factors, United

States v. Martinez, 520 F.3d 749, 752-53 (7th Cir. 2008);

United States v. Ramirez-Gutierrez, 503 F.3d 643, 646 (7th

Cir. 2007), and we have not decided whether extraordinarily harsh conditions of confinement could ever justify

a reduced sentence. But even if unduly harsh conditions

could justify a lower sentence, Campos has not supported his claims of his pretrial conditions with any

evidence. He cites merely to his objections and corrections

to the presentence report, which are not supported by

evidence. And even if Campos had properly supported

his claim, the conditions about which he complains do

not compare with those which have been found by other

circuits to justify a reduced sentence. See, e.g., United States

v. Pressley, 345 F.3d 1205, 1219 (11th Cir. 2003) (concluding

length and conditions of defendant’s pre-sentence confinement—for six years, five of which were in a 23-hour-aday lock down and where defendant had not been outside

in five years—were not insufficient as a matter of law
No. 07-1561 33

to support a downward departure); United States v. Carty,

264 F.3d 191, 193 (2d Cir. 2001) (remanding for consideration of defendant’s request for downward departure

for pre-sentence conditions of confinement where defendant had been held eight months in a Dominican prison

in an unlit four-by-eight-foot cell with three or four

other inmates; he had no light in his cell; he had 10 to 15

minutes per day outside his cell to bathe; he had no

running water in his cell; he had no paper, pens, newspaper, or radio; and was allowed only one phone call a week).

In short, we find no procedural error in the sentencing

process, nor do we find that the sentence in this case

is unreasonable.

III. Conclusion

For the foregoing reasons, Campos’s convictions and

sentence are AFFIRMED.

9-3-08