The Honorable James E. Shadid, District Judge for the United 

States District Court for the Central District of Illinois, sitting

by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2125

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERIC OZUNA,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 10 CR 495—James B. Zagel, Judge.

ARGUED FEBRUARY 21, 2012—DECIDED MARCH 19, 2012

Before EASTERBROOK, Chief Judge, BAUER, Circuit Judge,

and SHADID, District Judge.

SHADID, District Judge. Eric Ozuna was found guilty

of unlawful possession of a firearm in violation of

18 U.S.C. § 922(g)(1). He was sentenced to a term of
2 No. 11-2125

113 months. On appeal, Ozuna argues that the district

court abused its discretion by failing to exclude evidence

regarding his gang affiliation as unfairly prejudicial.

We disagree and affirm the judgment.

I. BACKGROUND

At approximately 11:46 p.m. on November 6, 2009,

Alainya Bandy called 9-1-1 to report hearing gunshots

fired near her home in the 4800 block of North Lawndale.

After about 10 minutes, Bandy heard people walking in

the yard outside of her house. She looked out her bedroom window and saw a man in her back yard. Bandy

watched as the man walked down her driveway, looked

into the back alley behind her garage, and then walked

back up the driveway into her yard. She placed a

second call to 9-1-1 to report the man trespassing on

her property.

Chicago Police Officers Martin Staunton and Timothy

Martin were parked in an unmarked police car less than

one block from Bandy’s home when they received

the call dispatching them to the 4800 block of North

Lawndale. Officer Martin got out of the car a few houses

away from Bandy’s residence to search on foot while

Officer Staunton continued around the block to the

alley behind the house and drove up the alley at about 20

to 25 miles per hour with his headlights off. As he approached the back of Bandy’s house, Officer Staunton

saw two men dressed in dark clothing standing in the

alley at the end of Bandy’s driveway. Officer Staunton

perceived a “significant” height difference between the
No. 11-2125 3

men. The shorter man began running first. The taller

man was closer to Officer Staunton, permitting Officer

Staunton to observe him holding a gun in his hand.

Upon noticing Officer Staunton’s car in the alley, the

men fled up the driveway and through a gangway

toward the front of Bandy’s house. Office Staunton

began chasing the men. As he rounded the corner of

Bandy’s garage, Officer Staunton paused to get his bearings around a blind spot before pursuing the men into

the back yard. Bandy looked out her window and caught

a glimpse of Officer Staunton as he paused. She recalled

hearing Officer Staunton yell “police” before seeing him

in her back yard and hearing the sound of running

through her back yard and the “rustling” of the chain

link fence separating the yard from the gangway after

she saw the officer.

After rounding the garage, Officer Staunton was approximately 30 feet away from the taller man, later identified as Ozuna. The shorter man was later identified as

Sergio Sanchez, who, the record indicates, is six inches

shorter than Ozuna. Officer Staunton could no longer

see Sanchez, but saw Ozuna throw the handgun over

a fence and into Bandy’s neighbor’s yard. As Office

Staunton chased Ozuna and Sanchez up the gangway,

Officer Martin intercepted them from the front of

the house. Officer Martin saw Ozuna and Sanchez

running toward him with Officer Staunton only a few

feet behind. Officer Martin ordered them to the ground,

and they were arrested without incident. At the time of

his arrest, Ozuna had previously been convicted of

a felony.
4 No. 11-2125

Officer Piotr Nestorowicz arrived on the scene very

shortly thereafter. Officer Staunton advised Officer

Nestorowicz that he saw Ozuna throw a gun into the

neighbor’s back yard and instructed him where to find

it. Within seconds, Officer Nestorowicz recovered a .38

caliber Smith & Wesson revolver with a defaced serial

number containing two live rounds of ammunition from

the neighbor’s yard.

Ozuna was charged with unlawful possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) in the

United States District Court for the Northern District

of Illinois. Prior to trial, Ozuna’s counsel advised the

government that Sanchez would be testifying as to the

events of November 7, 2009. The government moved

in limine for authorization to cross-examine Sanchez

regarding his shared gang affiliation with Ozuna. After

holding that the gang would not be referred to by name

and that if it came up, it would be referred to generically

as an “organization,” the district court took the remainder

of the motion under advisement, indicating that it

would reserve ruling until hearing the substance of

Sanchez’ testimony on direct examination.

Trial commenced on December 17, 2010. The government presented Bandy, Officer Staunton, Officer Martin,

Officer Nestorowicz, the officer who examined the handgun for fingerprints, and a Chicago Police dispatcher

during its case in chief. Ozuna called a single witness,

Sanchez, in his defense. During his testimony, Sanchez,

who had not previously been convicted of a felony or

any other crime for that matter, testified that he was
No. 11-2125 5

the one holding the gun on November 7, 2009 and that

he threw the gun into the neighbor’s back yard

before Officer Staunton even pulled up behind Bandy’s

house. Sanchez further admitted that he and Ozuna

grew up in the same neighborhood, had known each

other since elementary school, had many of the same

friends and acquaintances, and were good friends.

Near the end of direct examination, defense counsel

asked for a sidebar on the issue of the gang evidence. The

following discussion took place:

Mr. Madden: Judge, I just want to get—be clear

I would like to front the gang evidence.

The gang evidence is going to be relevant. Obviously, I objected to it originally, and I understand—

The Court: Not on what I’ve heard. The door has

not been opened. It’s conceivable

that something could open on cross,

but if he’s careful—it’s not open.

Mr. Madden: Thank you, Your Honor.

Defense counsel then resumed direct examination with

five more questions before resting. Before cross-examination, the government asked for a sidebar and argued

that the door had been opened. The district court again

stated that everything about the relationship between

Ozuna and Sanchez was open, but that the gang membership was not.

During cross-examination, counsel for the government asked Sanchez where he had obtained the gun, and

the following dialog transpired.
6 No. 11-2125

Q. Where did you get the gun from?

A. From where I used to live, 4827 North Lawndale.

That’s where we had it.

Q. Who lives there?

A. Nobody. Nobody that I know of, but I used to live

there.

Q. You used to live there and knew that there was

a gun there.

A. I already knew. That’s where we always keep

them, usually keep them at.

Q. Who is “we”?

A. The organization I used to belong to.

Q. What organization is that?

(December 20, 2010 Trial Transcript at 423-24) Ozuna’s

counsel objected, and the objection was sustained. However, the district court allowed counsel to inquire

about other aspects of the organization, which led to

the following dialog.

Q. Could you tell us more about what that organization is?

A. It’s a gang that I used to be in.

Q. And were you in that gang with the defendant?

A. Yes.

Id. Counsel for the government then went on to crossexamine Sanchez on the rules and behaviors of the members of the gang, including oaths of loyalty, taking the
No. 11-2125 7

blame for another member’s crime, etc., without further

objection.

In closing argument, counsel for the government

again raised the subject of Ozuna’s gang affiliation.

“Sergio Sanchez is this man’s loyal friend, his fellow

gang member, somebody he wants to protect, someone

he took an oath to protect at one point. Sanchez says that

he’s out of the gang, but he sure knows all the rules,

doesn’t he? He knows what is going on in the gang

these days.” Id. at 495.

Prior to deliberations, the district court gave a cautionary instruction admonishing the jury that the

evidence regarding Ozuna’s membership in a street

gang could not be considered in finding that he was

more or less likely to have committed the charged offense. Ozuna was then found guilty of unlawful possession of a firearm by a felon.

Ozuna filed a Rule 33 motion for new trial asserting

that cross-examination regarding Sanchez and Ozuna’s

gang affiliation should not have been allowed. The

district court rejected the motion, finding that Sanchez’

testimony had opened the door to the admission of the

gang affiliation evidence and that the evidence should

not have been restricted at all. Ozuna received a sentence of 113 months.

II. DISCUSSION

On appeal, Ozuna contends that the district court

abused its discretion by failing to exclude evidence re-
8 No. 11-2125

garding his gang affiliation under Federal Rule of

Evidence 403 and that the error was not harmless. The

district court’s decision to admit evidence is reviewed

for abuse of discretion, given the judge’s position to

assess the impact of the evidence in the context of the

trial witnesses and evidence as a whole. United States v.

Santiago, 643 F.3d 1007, 1011 (7th Cir. 2011), citing United

States v. Alviar, 573 F.3d 526, 536 (7th Cir. 2009). This

Court accords the underlying decision great deference,

and it will be disturbed only if no reasonable person

could agree with the ruling. United States v. Thomas, 321

F.3d 627, 630 (7th Cir. 2003).

There is no question that evidence of a defendant’s

gang affiliation is potentially prejudicial and inflammatory, as it poses the risk that the jury will associate

gang membership with a propensity for committing crimes

and find the defendant guilty by association. Santiago,

643 F.3d at 1011; United States v. Harris, 587 F.3d 861, 867

(7th Cir. 2009). Despite this risk, however, evidence of

gang affiliation is not automatically inadmissible. Id. In

fact, such evidence has been deemed admissible where

it is found to be more probative than prejudicial. Id.,

citing United States v. Montgomery, 390 F.3d 1013, 1018 (7th

Cir. 2004); United States v. King, 627 F.3d 641, 649 (7th Cir.

2010); Clark v. O’Leary, 852 F.2d 999 (7th Cir. 1988). We

are of the opinion that the evidence of gang affiliation

was admissible, from the beginning, to show bias, interest,

or motive. As a result, we now examine the issue on

the way the evidence came in rather than the fact that

it did come in.
No. 11-2125 9

Following the guidance set forth in Santiago, Harris,

and Montgomery, the district court considered the

proffered gang affiliation evidence in this case both pretrial, at sidebar during the trial, and again on post-trial

motions. It is important to note that the excerpts from

the two sidebars cited previously in this opinion reveal

that both counsel and the district court could see the

relationships between Ozuna and Sanchez coming out

in open court as the trial progressed. The district court

attempted to reduce any prejudicial impact of the

evidence by directing that the proper name of the gang

not be used, denying the admissibility of Sanchez’ gang

tattoos, and reserving the ultimate question of admissibility until after hearing Sanchez’ testimony on direct

examination. This is a common and prudent practice in

the trial courts when considering these types of issues.

The district court further directed that the government could ask questions on the subject only if Sanchez

first raised it himself. Just as common in the trial courts

is that one side, this time the government, then asked

Sanchez questions designed so that Sanchez would

“open the door” and mention his gang membership. Once

open, the district court allowed the questioning that

brought about the testimony of the shared gang affiliation between Sanchez and Ozuna and the loyalty

among members. The jury was instructed that Ozuna’s

membership in a street gang could not be considered

in finding that he was more or less likely to have committed the charged offense.

Ozuna revisited this issue in his motion for new trial.

The district court again found that Sanchez’ testimony
10 No. 11-2125

had not only opened the door to the evidence but also

that the government should not have been required to

open the door as a prerequisite to admission in the first

place given the relevance of the evidence to the past

relationship between the witness and Ozuna. We agree.

To be relevant, Rule 401 provides that evidence must

have a tendency to make the existence of any fact of

consequence to the determination of the action more or

less probable than it would be without the evidence.

Here, the evidence was offered to show Sanchez’ bias

in favor of his fellow gang member. Proof of bias is

almost always relevant, as “[a] successful showing of

bias on the part of a witness would have a tendency

to make the facts to which he testified less probable in

the eyes of the jury than it would be without such testimony.” United States v. Abel, 469 U.S. 45, 51-52 (1984).

Moreover, “common membership in an organization,

even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.”

Id. Sanchez and Ozuna’s membership in the Spanish

Cobras clearly supported the inference that Sanchez’

testimony was slanted or even manufactured in Ozuna’s

favor, particularly as Sanchez, unlike Ozuna, had not

previously been convicted of a felony. It was therefore

relevant and probative.

Under Rule 403, relevant evidence is admissible

unless its probative value is substantially outweighed

by the danger of unfair prejudice. The district court

saw the evidence unfold and was in the best position to

evaluate the probative value of the gang affiliation evi-
No. 11-2125 11

dence while weighing that value against any potential

prejudice. In an abundance of caution, the district court

took substantial precautions to avoid the risk of undue

prejudice that made the issue appear to be more

complex than it actually was. The facts of this case demonstrate a common pattern that occurs in trial courts,

with one side claiming that certain evidence is crucial

to its ability to present its case and the other side

insisting that it cannot receive a fair trial if the evidence

is allowed. The district court balanced the competing

concerns to allow the government to explore a relationship between Ozuna and Sanchez while going to considerable lengths to protect Ozuna’s right to a fair trial.

With the benefit of hindsight, the Court finds that these

precautionary measures were largely unnecessary, as the

prejudice to Ozuna did not substantially outweigh

the considerable probative value of the evidence in establishing Sanchez’ bias or motivation for testifying that

he carried the handgun on the night in question. We

hold that the admission of the evidence regarding the

shared gang affiliation and tenets of gang membership

was not an abuse of discretion.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

3-19-12