Sufficiency of Evidence

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7^th Circuit Court of Appeals

Case Name: United States of America v. Xavier Elizondo, et al.,

Case No.: 20-2167; 20-2366

Officials: SYKES, Chief Judge, and FLAUM and BRENNAN, Circuit Judges.

Focus: Sufficiency of Evidence

Chicago Police Officers Xavier Elizondo and David Salgado used their positions to embezzle drugs and cash, some of which they distributed to informants. As part of their scheme, they encouraged informants to present false information to state judges to obtain search warrants, which in turn yielded more drugs and cash. The FBI caught on and initiated sting operations. The first sting failed because officers discovered security cameras the FBI had set up at a vacant apartment, leading the defendants to inventory the full amount of money they recovered there. After seeking and obtaining court authorization to wiretap Elizondo’s phone, the FBI conducted another sting operation. In the second sting agents recorded Elizondo and Salgado stealing cash they recovered from an FBI-controlled rental vehicle. Salgado saw law enforcement towing the rental vehicle the next day, and he told Elizondo, who in turn instructed Salgado to “relocate” items from Salgado’s home.

A grand jury indicted Elizondo and Salgado on conspiracy and theft charges related to their scheme. Elizondo was also charged with obstruction of justice for instructing Salgado to destroy or conceal evidence. They went to trial and a jury found them guilty on all counts. Elizondo and Salgado appeal: (1) the use of the evidence obtained from the government’s wiretap application; (2) the district court’s Batson inquiry during jury selection; (3) the sufficiency of evidence on the obstruction charge; and (4) the district court’s calculation of the intended loss under the Sentencing Guidelines.

We find no reversible error. The wiretap application was not an improper subterfuge search because the government was forthright about the scope of its investigation. Likewise, we can trace the logic of the district court’s Batson inquiry, and that court followed the applicable steps. The evidence presented at trial on the obstruction charge was sufficient for the jury to infer that Elizondo acted with the intent to prevent the use of evidence in an official proceeding. Finally, there was no clear error in the district court’s loss calculation at sentencing. We therefore affirm Elizondo and Salgado’s convictions and sentences.

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.