USA v. Christian Gonzalez

Filing

Filed opinion of the court by Judge Bauer. We REVERSE the decision of the district court and REMAND the case to the district court with orders to reinstate the jury's verdict. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Joseph S. Van Bokkelen, District Court Judge. [6538504-1] [6538504] [13-1832]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 13-1832
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
CHRISTIAN GONZALEZ,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 1063 — Matthew F. Kennelly, Judge.

ARGUED DECEMBER 2, 2013 — DECIDED DECEMBER 16, 2013

Before B AUER and F LAUM,
VAN BOKKELEN,* District Judge.

Circuit Judges,

and

BAUER, Circuit Judge. A grand jury returned an indictment
charging Christian Gonzalez with conspiring to possess with
intent to distribute 1,000 kg or more of marijuana in violation
of 21 U.S.C. § 846, and possession with intent to distribute
*

Of the United States District Court for the Northern District of Indiana,
sitting by designation.

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more than 1,000 kg of marijuana in violation of 21 U.S.C.
§ 841(a)(1). At trial, Gonzalez moved for judgment of acquittal
at the close of the government’s case and again at the close of
the evidence. The district court denied both motions. The jury
returned a verdict of guilty on the conspiracy count and
not guilty on the possession count. After the jury’s verdict,
Gonzalez filed a third motion for judgment of acquittal; this
time, the district court granted Gonzalez’s motion and Gonzalez was released. The government now appeals and seeks
reinstatement of the jury’s verdict.
I. BACKGROUND
A. Activities at the Warehouse
In November 2010, law enforcement intercepted six railcars
as they crossed from Mexico into the United States. They
discovered that the railcars contained large amounts of
marijuana, which had been packed into bricks. The marijuana
bricks were encased in colored clay shells and hidden inside
large bags called “super sacks.” The super sacks were labeled
“Made in Mexico” and were filled with a colored, clumpy
powder. The powder varied in color; about half the super sacks
contained red powder, while the other half contained orange,
yellow, and brown powder. Each sack contained eight to
sixteen marijuana bricks and weighed approximately 2,550
pounds. After law enforcement officials discovered the
marijuana, they followed the railcars to their final destination:
a warehouse in Chicago Heights, Illinois.
Agents conducted surveillance of the warehouse to identify
the intended recipients of the shipment. They stationed agents
outside the warehouse, employed court-ordered telephone

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wiretaps, and installed cameras inside and outside the warehouse. The agents determined that Carlos Osvaldo Quintero
(“Quintero”) ran the Chicago end of the drug trafficking
operation. They watched and listened as Quintero and his
associates, including Christian Gonzalez (“Gonzalez”),
unloaded the marijuana-filled super sacks from the railcars
and placed them inside the warehouse.
During the unloading process, Gonzalez called Quintero
and expressed concern because an unknown man seemed to be
inspecting the super sacks. He left a message for Quintero,
saying, “Some white dude came … he was lookin’ at all the
bags … [h]e was lookin’ at it.” Four minutes later, Quintero
called Gonzalez back and told him the man owned the warehouse. However, he said that Gonzalez’s decision to call him
about the man’s presence was “a good one.”
After unloading was complete, Gonzalez and Quintero
arranged to meet to discuss work that still needed to be done.
Agents watched as Quintero met with Gonzalez and Javier
Vera (“Vera”) inside a department store. A fourth man seemed
to be conducting surveillance of the group and watching to
make sure that no one approached them. The man then joined
Quintero, Gonzalez, and Vera.
A few days later, an industrial-sized funnel was delivered
to the warehouse. Agents used cameras to watch what transpired. Gonzalez and several other men spent the bulk of the
day working to raise up the funnel so that the super sacks
could fit beneath it. They also spent time taping together
cardboard boxes. Agents also conducted surveillance of the

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warehouse’s exterior; at times, they saw Gonzalez and two
other men peering outside the warehouse.
Two days later, a white van delivered an empty funnel-like
sifting device to the warehouse. A few hours after the machine
was delivered, the warehouse owner returned to the warehouse. Vera called Quintero and told him, “Hey, the … white
guy[’s] … checking out the warehouse[] … he went inside.”
Quintero told Vera to use a cover story to get the white man
out of the warehouse. He said, “If he goes over there just …
make a conversation with ‘em and try to get him outta’ that
warehouse.” Due to concerns that the man would find out
what they were up to, Gonzalez and the other men moved the
sifting machine to a more secluded spot in the south bay of the
warehouse.
Cameras were not set up in the south bay of the warehouse,
so agents could no longer see the sifting device. They surmised, however, that Gonzalez and the other men used the
machine to separate the marijuana bricks from the clumpy
powder contained in the super sacks. First, a forklift was used
to raise super sacks above the sifting machine. A sack’s
contents were then dumped inside the machine. The motoroperated machine contained two augers, which drilled into the
clumpy powder in order to separate the marijuana bricks from
the rest of the powder. An empty super sack was placed
beneath the machine to catch the residual powder. The bricks
were then removed.
Later that day, agents arrested Gonzalez and the other men
as they left the warehouse. The men were literally caught redhanded; they were covered from head to toe in red powder.

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Agents then searched the warehouse. They found the sifting
device, which was now filled with red powder. They found a
forklift with a super sack suspended from its forks. They
recovered hundreds of super sacks, all covered in red powder,
as well as some cardboard boxes. Agents also found eight
marijuana bricks stacked in the back of the warehouse. The
bricks were covered in red powder and appeared as if they had
been extracted from a super sack. In total, agents recovered
8,752 kg of marijuana that had been packed into bricks and
hidden inside the super sacks.
B. Gonzalez’s Interview
After his arrest, Gonzalez was questioned by agents. He
gave a two-and-one-half hour statement to agents, which was
played for the jury. During the interview, Gonzalez admitted
that he helped to unload the super sacks and to construct
cardboard boxes, but denied knowing what was inside the
super sacks or why the cardboard boxes were being assembled.
He admitted to becoming suspicious and stated that he asked
Quintero what the super sacks contained. He asked, “Is it yay,1
it could be yay, or [] weed?” Quintero responded, “No I don’t
know dog, I don’t, I really don’t know I seriously don’t know.”
Gonzalez then replied, “Alright cool man I guess.”
Though Gonzalez may not have definitively known that
there were illegal drugs in the super sacks, he admitted that his
“gut” told him it was probably cocaine. He stated in his
interview with agents, “[w]ell to me, like how I was thinking,
damn that’s probably drugs, probably … because it came from
1

“Yay” is a slang term for cocaine.

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Mexico … . I know there was shit in there.” Because he was
suspicious, he looked inside several of the sacks. He removed
three black garbage bags from one of the super sacks, but
found no marijuana or illegal drugs inside. He did, however,
admit that he saw several bricks lying on the floor of the
warehouse and thought they were cocaine.
C. Gonzalez’s Trial
After the close of all the evidence presented at trial,
Gonzalez made a motion for judgment of acquittal. The court
denied it, saying,
I have to look at the evidence in the light most
favorable to the government and determine whether
any reasonable juror could find what it needs to find
in order to convict Mr. Gonzalez. And I think it
could. Number one, there’s evidence that [Gonzalez]
was involved, and I won’t get into any more detail
on that, in unloading and extracting the bundles.
Number two, at least from his statement, if not from
other things other than the statement, and I acknowledge that it’s subject to interpretation, but
looking at it in the light most favorable to the government, which is the standard, you know, a person
could conclude that either [Gonzalez] knew that [the
super sacks] contained a controlled substance or
that, in the words of the instruction that I’m going to
give, that he believed that there was a strong probability about that and took deliberat[e] actions to
avoid learning the actual truth.

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The district court gave the “ostrich instruction” to the jury
over Gonzalez’s objection, explaining, “in Mr. Gonzalez’s
interview there’s at least two … references where he talks
about being suspicious … it’s almost a classic case for the
ostrich instruction.” The court instructed the jury as follows:
You may find that a defendant acted knowingly if
you find beyond a reasonable doubt that he believed
there was a strong probability that controlled substances were in the super sacks but took deliberate
actions to avoid learning the truth. You may not find
that the defendant acted knowingly if he was merely
mistaken or careless in not discovering the truth, or
if he failed to make an effort to discover the truth.
After the case was submitted to the jury, the jury returned
a verdict of guilty on the conspiracy count, and not guilty on
the possession count.
D. Gonzalez’s Motion for Judgment of Acquittal After
the Jury’s Verdict
After the jury’s verdict, Gonzalez moved for judgment
of acquittal once again. This time, the district court granted
Gonzalez’s motion for judgment of acquittal. It found that “no
reasonable jury could have found that Gonzalez had the
requisite knowledge” that drugs were involved. The court
concluded that “taking the evidence as a whole … the government failed to prove actual knowledge” and no reasonable
jury could have found evidence sufficient to support a finding
of deliberate avoidance. The district court acknowledged that
the “evidence, taken in the light most favorable to the government, certainly established that [Gonzalez] handled or saw

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several of the bricks.” It also concluded that Gonzalez’s
assistance in putting together cardboard boxes was “certainly
evidence that he was aware that something from the super
sacks was going to be boxed up and carried away,” a factor
that Gonzalez admitted made him “suspicious.” However, the
court found that the inferences drawn by the jury were “a
stretch” and went “beyond the bounds of reasonable inference.” The government filed a timely appeal to this court.
II. DISCUSSION
We review a district court’s grant of a motion for judgment
of acquittal de novo. United States v. White, 698 F.3d 1005, 1013
(7th Cir. 2012). A jury’s verdict is entitled to great deference; a
district court should not “reweigh the evidence or secondguess the jury’s credibility determinations.” Id. at 1013 (quoting United States v. Tavarez, 626 F.3d 902, 906 (7th Cir. 2010)).
As long as the evidence is sufficient, “it is the responsibility of
the jury—not the court—to decide what conclusions should be
drawn from evidence admitted at trial.” Coleman v. Johnson, 132
S. Ct. 2060, 2062 (2012) (quoting Cavazos v. Smith, 565 U.S. 1
(2011)). A jury’s verdict should be set aside only if “the record
contains no evidence, regardless of how it is weighed, from
which a jury could have returned a conviction.” White, 698 F.3d
at 1013 (quoting United States v. Moses, 513 F.3d 727, 733 (7th
Cir. 2008)).
“To sustain a conspiracy conviction, the Government must
provide substantial evidence that a conspiracy existed and that
the defendant knowingly agreed to join that conspiracy.”
United States v. Monroe, 73 F.3d 129, 131 (7th Cir. 1995) (citing
United States v. Carson, 9 F.3d 576, 587 (7th Cir. 1993)). A

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conspiracy requires “substantial evidence that the defendant
knew of the illegal objective of the conspiracy and agreed to
participate.” United States v. Longstreet, 567 F.3d 911, 918–19
(7th Cir. 2009) (quoting United States v. Thornton, 197 F.3d 241,
254 (7th Cir. 1999)). “A conspiracy need not be proved with
direct evidence; circumstantial evidence is sufficient.” United
States v. Carrillo, 435 F.3d 767, 776 (7th Cir. 2006) (citing United
States v. Miller, 405 F.3d 551, 555 (7th Cir. 2005)). To sustain a
conviction, a defendant need not have known the specific drug
type or quantity as long as he was aware that a controlled
substance was involved. United States v. Gougis, 432 F.3d 735,
745 (7th Cir. 2005).
At Gonzalez’s trial, the trial court gave the ostrich instruction to the jury. “The purpose of the ostrich instruction ‘is to
inform the jury that a person may not escape criminal liability
by pleading ignorance if he knows or strongly suspects he is
involved in criminal dealings but deliberately avoids learning
more exact information about the nature or extent of those
dealings.’” United States v. Craig, 178 F.3d 891, 896 (7th Cir.
1999) (quoting United States v. Rodriguez, 929 F.2d 1224, 1227
(7th Cir. 1991)). It is appropriate to give the ostrich instruction
where the defendant claims a lack of guilty knowledge, and
the government presents evidence from which a jury could
conclude that the defendant deliberately avoided learning the
truth. United States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007).
“For purposes of criminal liability, deliberately avoiding
knowledge of a criminal activity is the same thing as having
actual knowledge of that activity.” Carrillo, 435 F.3d at 780
(citing United States v. Ramsey, 785 F.2d 184, 189 (7th Cir. 1986)).
“Deliberate avoidance is not a standard less than knowledge;

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it is simply another way that knowledge may be proven.”
Carani, 492 F.3d at 873. Deliberate avoidance can be demonstrated either by the defendant’s “overt physical acts,” or by
the defendant “cutting off [his] normal curiosity by an effort of
will.” Craig, 178 F.3d at 896 (quoting United States v. Stone, 987
F.2d 469, 472 (7th Cir. 1993)).
In Rodriguez, 929 F.2d at 1229, we affirmed the defendants’
convictions for conspiracy to distribute cocaine. Two brothers,
Lino and Evelio Rodriguez, drove to a location where a drug
transaction was set to take place. Id. at 1226. Lino removed a
white plastic bag from his trunk and set it on the passenger
seat of his vehicle. Id. The plastic bag was then picked up by
Evelio and handed to an undercover officer. Id. The undercover officer checked the contents of the bag and confirmed it
was cocaine. Id. He then gave a signal to other officers to arrest
Lino. Id. After he was arrested, Lino claimed he knew nothing
about the cocaine transaction, and asserted that he was “just
helping someone else” and “trying to make some money.” Id.
at 1227. The jury convicted him. Id. We affirmed his conviction,
explaining that it would not have been “unreasonable for the
jury to conclude from all this that [Lino’s] failure to ask for
more details was an attempt to avoid learning exactly what he
was participating in—‘a cutting off of one’s normal curiosity
by an effort of will.’” Id. at 1228 (quoting United States v.
Giovanetti, 919 F.2d 1223, 1229 (7th Cir. 1990)).
Much like Lino in Rodriguez, Gonzalez actively avoided
learning that drugs were present in the super sacks, because he
did not want to know the truth. Portions of Gonzalez’s postarrest statements make clear that Gonzalez strongly suspected
that the super sacks contained controlled substances. He

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stated, “I was thinking, damn that’s probably drugs … . I know
there was shit in there.” He admitted seeing several bricks in
the warehouse and acknowledged that his “gut” told him
illegal drugs were probably involved. At one point he asked
Quintero if drugs were involved, saying, “Is it yay, it could be
yay, or [] weed?” but Quintero merely responded, “No I don’t
know dog, I don’t, I really don’t know I seriously don’t know.”
Gonzalez, however, did not press for clarification when he
did not get a definitive answer from Quintero, nor did he
stop working for Quintero. Instead, Gonzalez “cut[] off [his]
normal curiosity” and continued working for Quintero in “an
attempt to avoid learning exactly what he was participating
in.” Id. at 1228.
Though Gonzalez may not have definitively known that
there were illegal drugs in the super sacks, he cannot “escape
criminal liability by pleading ignorance if he knows or strongly
suspects he is involved in criminal dealings but deliberately
avoids learning more exact information about the nature or
extent of those dealings.’” Craig, 178 F.3d at 896 (quoting
Rodriguez, 929 F.2d at 1227).
III. CONCLUSION
We are satisfied that the evidence was sufficient for a jury
to reasonably conclude that Gonzalez knew that the super
sacks contained illegal drugs and yet continued to participate
in the super sacks operation. At the very least, there is evidence
that Gonzalez strongly suspected the super sacks contained
illegal drugs but deliberately avoided learning the truth.
Therefore, we REVERSE the decision of the district court and

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REMAND the case to the district court with orders to reinstate
the jury’s verdict.