United States of America v. Monico R. Albiola

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3306
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MONICO R. ALBIOLA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cr-00313-1—Charles R. Norgle, Sr., Judge.
ARGUED JANUARY 12, 2010—DECIDED OCTOBER 8, 2010
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. A jury found Monico R.
Albiola guilty of one count of attempting to possess with
intent to distribute methamphetamines, in violation of
21 U.S.C. § 846, and one count of knowingly and inten-
tionally using a communication facility in the commis-
sion of a controlled substance offense, in violation of
21 U.S.C. § 843(b). Albiola appeals his conviction, ar-
guing that the district court erred by admitting evidence

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2 No. 08-3306
of other mailing labels unrelated to the charged offense.
Because the other mailing labels were admissible as
evidence of absence of mistake under Rule 404(b), we
find that any error in their admission was harmless.
Although Albiola contends that the testimony of a law
enforcement agent describing the methods and results
of his investigation constituted impermissible hearsay,
we find that the testimony did not contain any out-of-
court statements. We therefore affirm Albiola’s conviction.
I. BACKGROUND
On May 10, 2007, United States Postal Inspector
Service (“USPIS”) agents at O’Hare International Air-
port’s mail center intercepted an Express Mail package
addressed to “Monico Albiola, 1310 Cambia Drive, Apart-
ment 6119, Schaumburg, Illinois.” The return address
was “David Albiola, 11014 3rd Street, Cashion, Arizona.”
After searching various law enforcement and public
databases, the USPIS agents determined that the
Arizona address existed but that no “David Albiola” was
affiliated with it. The inspectors then obtained a search
warrant and opened the package. Inside was a smaller
box containing a coffee maker, and inside the coffee
maker’s carafe were two plastic bags containing a white
powdered substance. According to analysis performed
by the Drug Enforcement Administration (“DEA”), the
substance, which weighed over 120 grams in total, was
a mixture containing methamphetamine.
A few days later, USPIS conducted a controlled
delivery of the package under government surveillance.

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No. 08-3306 3
The package had been repacked to contain a lookalike
substance and a tracking device to monitor when the
package was moved or opened. USPIS Inspector
Eduardo Andrade, who was dressed as a mail carrier,
delivered the package to the Schaumburg address. Albiola
signed for and accepted the package, but rather than re-
entering his apartment immediately, Albiola lingered in
the doorway and watched Andrade as he walked down
the hallway. After Andrade was out of sight, Albiola
took the package inside the apartment, deadbolted
the front door, and locked the sliding glass door. A
few minutes later, the tracking device alerted, which
indicated that the package had been opened. At this
point, law enforcement agents entered the apartment
pursuant to a search warrant and found Albiola in the
hallway outside the master bedroom. The agents discov-
ered the package inside the master bedroom. The coffee
maker had been taken out of the box, and the carafe was
pulled out slightly. The top of the carafe had been re-
moved, leaving the two plastic bags containing the
white substance exposed. During a post-arrest interview,
Albiola stated that the package contained “something”
he had purchased in Arizona. Albiola was indicted
for attempted possession with intent to distribute meth-
amphetamines and use of a communication facility in
committing a drug offense, in violation of 21 U.S.C.
§§ 846 and 843(b).
During Albiola’s trial, the government elicited testi-
mony from USPIS Inspector Jeffrey Gunther, who was
primarily responsible for this investigation. Gunther
testified about his attempts to verify the existence of

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4 No. 08-3306
“David Albiola,” the purported sender of the subject
package, which included records searches and
interviews with Albiola’s parents and the parents of
Antoinette, Albiola’s wife. Gunther testified that, based
on his investigation, he was never able to identify
“David Albiola” or otherwise confirm his existence. The
district court admitted this testimony over Albiola’s
objection.
In addition to evidence that the return address on the
subject package was fictitious, the government also intro-
duced evidence that Albiola was connected to four
other Express Mail labels containing fictitious addresses.
Two of the labels were found during a consent search
of Albiola’s vehicle. Both labels were customer copies
for Express Mail packages that were sent on May 3, 2007.
The first label was addressed to “Monico Meress, 645
Rooster Run, Scherty, Texas.” The return address was
listed as “Alberto Romero, 1410 Wise Rd #3119,
Schamburg, IL 60193.” The second label found in
Albiola’s car contained the same return address, but was
addressed to “Juventino Perez, 1805 S. 113th Dr., Avon-
dale, AZ.” According to Gunther, the Wise Road return
address on both labels was fictitious—Wise Road exists
(indeed, it runs adjacent to Cambia Drive, the street
on which Albiola’s apartment is located), but street
number 1410 does not.
The other two mailing labels introduced by the gov-
ernment were electronic copies of labels found during
a USPIS records search of packages sent through the
Schaumburg post office. One label was dated April 27,

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No. 08-3306 5
Like his testimony about his investigation into “David 1
Albiola,” Gunther’s testimony about his investigation into
the existence of “Juan Albiola” was similarly limited to a
confirmation that he had interviewed Albiola’s and Antoinette’s
parents but had not found any evidence that Juan Albiola
existed.
2007 and was sent to Albiola’s apartment in Schaumburg.
It contained the following return address: “Juan Albiola,
11001 W. Apache, Cashion, AZ 85329.” According to
Gunther, the street address was valid, but investigators
determined that no person by the name of “Juan
Albiola” received mail there. The other label, dated1
March 2, 2007, indicated that the package was sent to
Albiola’s address in Schaumburg (although it did not
list his specific apartment number) and was sent from
“Alberto Romero” at 3600 Desert View Drive, Apache
Junction, Arizona. During trial, Gunther noted that the
road Desert View exists, but street number 3600 does not.
Over Albiola’s objection, the district court admitted all
four labels, apparently as direct evidence of Albiola’s
knowing and intentional use of the United States mails.
In its post-trial order, the court stated that the labels
were also admissible as non-propensity evidence under
Rule 404(b) of the Federal Rules of Evidence.
The jury found Albiola guilty on both counts, and the
district court sentenced him to 97 months’ imprisonment.
Albiola now challenges his conviction and seeks a new
trial. He argues that the district court’s admission of the
other four mailing labels was improper under Rule
404(b) and that Gunther’s testimony regarding his inter-

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6 No. 08-3306
views of Albiola’s and Antoinette’s parents contained
inadmissible hearsay in violation of Rule 801.
II. ANALYSIS
Albiola first contends that the district court erred by
admitting the other mailing labels, which Albiola
objected to in a pretrial motion in limine and during trial.
We review evidentiary rulings made over a defendant’s
objections for abuse of discretion. United States v. Avila,
557 F.3d 809, 819 (7th Cir. 2009).
At the hearing on Albiola’s motion in limine, the gov-
ernment asserted that the labels were “intricately inter-
twined with the investigation” since the labels “were
part of the investigation that led up to the controlled
delivery.” Apparently unpersuaded by this argument,
the district court commented that the government’s
“stronger argument would be that it’s direct evidence
of the use of the mails.” The government then stated
that “for [Section] 843(b) we have to show that the use
of the mails was knowing. And these parcels show that
the defendant knew what an Express parcel looked
like.” After a brief discussion, the district court said:
“There does appear to be some relevance to these
various exhibits in terms of [Rule] 401. There is at least
a prima facie indication of their admissibility. I’ve also
considered it in terms of Rule 403; that the probative
value may be substantially outweighed by the danger of
unfair prejudice or confusion of the issues. There is not
enough to support an argument denying admissibility
under 403.” The district court reserved ruling on the

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No. 08-3306 7
issue until later in the trial. After the government raised
the issue again during trial, the court issued the
following ruling: “I am going to deny the defendant’s
motion in limine. The labels are admissible assuming
you lay a proper foundation for them.” We understand
this language to mean that the district court intended
to admit the evidence pursuant to its initial finding that
the other labels were direct evidence of Albiola’s guilt
of the charged offense.
A. Labels Not Direct Evidence
We first consider whether the labels were admissible
as direct evidence of Albiola’s guilt. Our principal con-
cern with this ruling is whether the labels were rele-
vant. Federal Rule of Evidence 401 defines relevant evi-
dence as “having any tendency to make the existence
of any fact that is of consequence to the determination
of the action more probable or less probable.” At the
hearing on the motion in limine, the government argued
that the labels were relevant to “show that the defen-
dant knew what an Express parcel looked like.” In
its briefs, the government contends that the other
labels “provided relevant evidence that defendant’s use
of the mail on May 16, 2007 was knowing and intentional”
and “showed that defendant knew that an Express Mail
parcel had traveled in the United States mail.”
These arguments reflect a misunderstanding of 21
U.S.C. § 843(b). Section 843(b) provides that “it shall be
unlawful for any person knowingly or intentionally to
use any communication facility in committing or in

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8 No. 08-3306
causing or facilitating the commission of any act or acts
constituting a felony under [21 U.S.C. §§ 801-971].” In
order to violate § 843(b), a defendant must knowingly
use the communication facility in the commission of a
felony. See United States v. Grier, 866 F.2d 908, 928 (7th
Cir. 1989) (“Under 21 U.S.C. § 843(b), the government
must prove a (1) knowing or intentional (2) use of a
telephone (3) to facilitate the commission of an offense.”)
(citation and internal quotation marks omitted). As
the Ninth Circuit explains, “The knowledge element of
§ 843(b) requires the government to prove that the defen-
dant knowingly or intentionally used the communica-
tion device in order to aid or facilitate the underlying
criminal violation. What is essential is that the defendant
knows that he or she is using the communication device
to facilitate the drug transaction.” United States v.
Mincoff, 574 F.3d 1186, 1196 (9th Cir. 2009) (citation
and internal quotation marks omitted) (emphasis added).
The government’s argument fails because it ignores
§ 843(b)’s felony requirement.
Interpreting § 843(b) to make relevant all evidence of a
defendant’s prior use of the communication facility as
proof of his “knowledge of how to use the facility” would
likely lead to absurd results in practice. For instance, a
defendant accused of committing a drug felony using
his computer could be subject to the admission of all
evidence of his prior computer usage—e.g., instant mes-
senger chat logs, e-mails, online bill payment receipts,
and the like—because this evidence would be presump-
tively relevant (albeit potentially limited by other rules
of evidence), despite the fact that the underlying
activities may have been entirely legal.

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No. 08-3306 9
We do not read the statute so broadly as to make
every prior use of the communication facility at issue
relevant; rather, to be directly relevant to a § 843(b) viola-
tion, evidence must be probative of the defendant’s use
of the communication facility to commit the underlying
crime. Under our interpretation of the statute, the
other labels are not directly relevant to the matter at
issue—that is, whether Albiola knowingly used the mail
to facilitate a drug crime—because the content of the
boxes shipped with the other mailing labels is unknown.
Without knowledge of what the other shipments con-
tained, those labels only show that Albiola regularly
uses fictitious addresses when sending Express Mail,
which does not directly bear on whether he used the
mails to facilitate the offense charged. Therefore, the
district court’s admission of the other labels as direct
evidence of Albiola’s “knowledge of how to use the
mails” was incorrect. When a “district court’s decision
rested on an error of law . . . then it is clear that an abuse
of discretion has occurred because it is always an abuse
of discretion to base a decision on an incorrect view of
law.” United States v. Seals, 419 F.3d 600, 606 (7th Cir.
2005). But we do “not overturn erroneous evidentiary
rulings if the error is harmless,” United States v. Schalk,
515 F.3d 768, 774 (7th Cir. 2008), and because we find
that the labels were admissible under Rule 404(b) as
discussed below, the district court’s error was harmless.
B. Labels Admissible as Rule 404(b) Evidence
Although a defendant’s conduct unrelated to the
charged offense may not be admissible “to prove the

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10 No. 08-3306
character of a person in order to show action in con-
formity therewith,” Rule 404(b) provides that evidence
of other crimes, wrongs, or acts may be admissible for
other purposes, such as proof of motive, opportunity,
intent, plan, knowledge, identity, or absence of mistake
or accident. Fed. R. Evid. 404(b). Before delving into the
merits, however, we begin by noting the circumstances
surrounding the district court’s ruling and the govern-
ment’s varied justifications for the admission of the
other labels. At the motion in limine hearing, the gov-
ernment expressly disavowed reliance on Rule 404(b),
stating that “it’s our position that 404(b) is not impli-
cated here,” and instead chose to argue that the
labels were inextricably intertwined with the USPIS
investigation. There was no further discussion of the
other labels until after the presentation of evidence con-
cluded the next day. At the charge conference, the gov-
ernment’s position changed and a request for a jury
instruction based on Rule 404(b) was made: “If I may
just make a record, we are proposing an instruction that
is a 404(b) instruction; that is, evidence has been—of
other conduct has been offered that’s for the limited
purpose of intent, knowledge, preparation, plan by
which the government is taking the position that that’s
the other labels. We do want that instruction. It is our
position that that evidence is offered for that limited
purpose. That’s why we would propose the instruction.”
Albiola’s attorney agreed to the instruction (noting that
his agreement was not a waiver of his earlier objections
to the evidence), so the district court included the gov-

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No. 08-3306 11
The instruction stated: 2
You have heard evidence of acts of defendant other
than those charged in the indictment. You may con-
sider this evidence only on the questions of defen-
dant’s intent, preparation, plan, knowledge or absence
of mistake or accident. You should consider this evi-
dence only for these limited purposes.
ernment’s proposed instruction in the jury charges.2
After the trial, the district court issued a post-trial order
in which it stated that the evidence was properly
admitted “direct evidence of Albiola’s knowing and
intentional use of the United States mails,” and as
evidence of Albiola’s modus operandi, planning and
preparation, and absence of mistake under Rule 404(b).
Prior to the district court’s issuance of its post-trial
order, the only stated basis for the district court’s admis-
sion of the other labels was that they were direct evidence.
So, we are faced with the unusual situation in which
the district court admitted evidence under one theory
of law during trial and then advanced an alternative
rationale for the admission after trial. Such a post hoc
justification for an earlier ruling seems particularly prob-
lematic in the context of evidence admitted under
Rule 404(b) due to its great potential for prejudice.
Because of our general concerns about the prejudicial
nature of this type of evidence, we have emphasized
that “there must be a principled exercise of discretion.
The district judge must both identify the exception
that applies to the evidence in question and evaluate

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12 No. 08-3306
whether the evidence, although relevant and within the
exception, is sufficiently probative to make tolerable
the risk that jurors will act on the basis of emotion or
an inference via the blackening of the defendant’s char-
acter.” United States v. Beasley, 809 F.2d 1273, 1279
(7th Cir. 1987). Our recent precedent indicates that a
court’s failure to consider the implications of Rule 404(b)
evidence before admitting it may be grounds for rever-
sal. United States v. Ciesiolka, 614 F.3d 347, 357 (7th Cir.
2010) (“[W]e may . . . reverse if the district court failed
to consider the prejudicial nature of the Rule 404(b)
evidence before allowing it to be admitted.”) (emphasis
added); but see id. at 360 n.2 (Ripple, J., dissenting) (ar-
guing that a district court may explain its Rule 404(b)
weighing after the evidence has been admitted). We do
not find that the circumstances here dictate reversal, cf. id.
at 358 (reversing based on “the context-specific facts of
this highly unusual case” which included “the jury’s day-
long exposure to voluminous evidence of [defendant’s]
prior bad acts, many of which were appalling”); never-
theless, in light of our precedent we think it would be
prudent for district courts to give the basis for the ad-
mission of Rule 404(b) evidence at the time of the ruling.
The other labels were admissible under Rule 404(b) as
evidence of Albiola’s absence of mistake. See United
States v. Hernandez, 84 F.3d 931, 935 (7th Cir. 2001)
(finding that evidence of prior drug crime was properly
admitted to show absence of mistake). In determining
whether evidence was properly admitted under Rule
404(b), the court considers whether: (1) the evidence is
directed toward establishing a matter in issue other

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No. 08-3306 13
than the defendant’s propensity to commit the crime
charged, (2) the evidence shows that the other act is
similar enough and close enough in time to be relevant
to the matter in issue, (3) the evidence is sufficient to
support a jury finding that the defendant committed the
similar act, and (4) the probative value of the evidence
is not substantially outweighed by the danger of unfair
prejudice, as required by Rule 403. United States v.
Harris, 587 F.3d 861, 864-65 (7th Cir. 2009).
The other mailing labels in this case supported the
inference that the fictitious address on the subject
package was not accidental, and was instead an inten-
tional act of concealment that Albiola had used re-
peatedly in the recent past. Further, Albiola was charged
with attempt to possess drugs with intent to distribute,
which required the government to prove that he acted
with the specific intent to commit the underlying of-
fense. United States v. Magana, 118 F.3d 1173, 1198 (7th Cir.
1997). “[W]hen a defendant is charged with a specific
intent crime, the government may present other acts evi-
dence to prove intent.” United States v. Perkins, 548 F.3d
510, 514 (7th Cir. 2008). As we found in United States
v. Brown, 250 F.3d 580, 585 (7th Cir. 2001), “intent is a
material issue in this case, and subject to some restric-
tions not relevant here, the prosecution is entitled to estab-
lish it by using admissible evidence of their choosing.”
With respect to the second and third factors of the four-
part test, we believe that the other labels were similar
to the label on the subject package and that there was
sufficient evidence to support a jury finding that the

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14 No. 08-3306
defendant committed the similar act. The four other
labels were all sent between March and May 2007, and
were therefore close in time to the May 9, 2007 shipment
of the subject package. See Harris, 587 F.3d at 865 (finding
that conduct occurring within two years of defendant’s
arrest was sufficiently close in time for Rule 404(b) pur-
poses). The type of false information on the other labels
was also consistent with the fictitious address on the
subject package label. For example, the label on the
subject package contained a legitimate return address, but
USPIS determined that the purported sender, “David
Albiola,” did not receive mail there, nor could USPIS
otherwise confirm his existence. Likewise, the April 2007
labels found in the records search of the Schaumburg
post office contained a valid address in Cashion, Arizona,
but the existence of the sender (“Juan Albiola”) could not
be confirmed. The two customer copy labels found
in Albiola’s vehicle also contained similar false infor-
mation. The identity of the alleged sender, “Alberto
Romero” (who was also the sender on the March 2007
label) could not be verified, and the return address
was fictitious. Wise Road exists—and notably runs
parallel to the street on which Albiola’s apartment
complex is located—but there is no “1410” building. The
jury could have inferred, based on the other labels’ tempo-
ral and spatial proximity to the subject package, that
Albiola’s receipt of the subject package was not by
accident or mistake. The other labels bear on Albiola’s
lack of mistake because they tend to show that he
“was not some hapless fool mistakenly caught up in an
overzealous law enforcement action.” Hernandez, 84 F.3d

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No. 08-3306 15
Although we find that the labels were properly admitted as 3
evidence of absence of mistake, we reject the government’s
assertion that the prior mailings also “demonstrated defendant’s
(continued...)
at 935 (citing United States v. Kreiser, 15 F.3d 635, 640
(7th Cir. 1994)).
The fourth factor requires that the probative value of
the evidence be substantially outweighed by the danger
of unfair prejudice. This factor is akin to Federal Rule
of Evidence 403, and we have stated that evidence is
unfairly prejudicial in the context of Rule 403 if it will
“induce the jury to decide the case on an improper basis,
commonly an emotional one, rather than on the evi-
dence presented.” United States v. Thomas, 321 F.3d 627,
630 (7th Cir. 2003). We find that the court’s limiting
instruction was sufficient to mitigate any prejudice re-
sulting from the admission of the labels. See United States
v. Johnson, 584 F.3d 731, 737 (7th Cir. 2001) (finding
that prejudice from admission of evidence of defendants’
prior acts was cured by the limiting instruction
provided to the jury, which instructed them to consider
the evidence only as to intent, knowledge or absence of
mistake). Without substantial evidence to the contrary,
we assume that the jurors followed the court’s instruc-
tion. United States v. Williams, 216 F.3d 611, 615 (7th Cir.
2000). As such, the other labels satisfy the four-part test
required for the admission of evidence under Rule 404(b),
and Albiola is not entitled to a new trial based on the
labels’ admission.3

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16 No. 08-3306
(...continued)
modus operandi, i.e., the manner in which defendant had
received drug shipments in the past and made payments for
illegal drugs.” To begin with, this argument fails for the same
reason that the labels were not admissible as direct evidence.
Because the contents of the other shipments are unknown, these
other labels do not show that any parcel contained drugs or
other contraband. Moreover, the use of fictitious information
on mailing addresses is not sufficiently unique to constitute
evidence of modus operandi. See United States v. Simpson, 479
F.3d 492, 498 (7th Cir. 2007) (“We only allow evidence to be
admitted under the modus operandi theory when . . . the sim-
ilarities between the two crimes [are] sufficiently idiosyncratic
to permit an inference of pattern for purposes of proof. . . . But
we have cautioned that if defined broadly enough, modus
operandi evidence can easily become nothing more than the
character evidence that Rule 404(b) prohibits.”) (citations
and internal quotation marks omitted).
C. Testimony Not Hearsay
Albiola’s final argument is that the district court im-
properly allowed USPIS Inspector Gunther to testify
about his interviews of Albiola’s and Antoinette’s
parents in which he inquired about the existence of
“David Albiola” and “Juan Albiola.” Rule 802 prohibits
the admission of hearsay statements, which are defined
as out-of-court statements offered into evidence to
prove the truth of the matter asserted. Fed. R. Evid. 801(c).
According to Albiola, Gunther’s testimony about these
interviews constitutes hearsay because the interviews
do not fall under any exception of the hearsay rule and
the government could have called the parents to testify.

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No. 08-3306 17
During his testimony, Gunther testified as follows
about his investigation concerning David Albiola:
Q: Were you able to determine whether David
Albiola receives mail at the [Cashion, Arizona]
address?
A: I was.
Q: What did you find out?
A: David Albiola does not receive mail at that
address and he is not associated with that address.
Q: Did you attempt to identify David Albiola?
A: Yes, I did.
Q: How?
A: Through Internet database person search,
running the name through our law enforcement
computer database, using our postal inspection
services databases, Accurant, and calling the post
office in Cashion, Arizona.
Q: Were interviews conducted?
A: Yes, they were.
Q: Who was interviewed?
Q: Did you interview anyone?
A: The resident at that address . . . was interviewed
by Arizona inspectors.
Q: Did you interview anyone?
A: Yes, I did.

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18 No. 08-3306
Q: Who?
A: Monico Albiola’s parents and [Antoinette’s]
parents.
Q: Were you able to identify David Albiola?
A: No, I was not.
. . . .
Q: Did you find any evidence that David Albiola
exists?
A: No.
This does not contain any out-of-court statement, so the
prohibition against hearsay is not implicated here.
Gunther never testified about the substance of his inter-
views of Albiola’s and Antoinette’s parents. He only
said that he had conducted the interviews as part of his
investigation, and then, in reporting the findings of his
investigation, said that he had not found any evidence
to substantiate the existence of David or Juan Albiola.
Gunther’s testimony about the results of his investiga-
tion were within his personal knowledge and are not
subject to the hearsay rule. See United States v. Blandina,
895 F.2d 293, 301 (7th Cir. 1989) (“The results of [the
agent’s] investigation . . . were within his personal knowl-
edge, which is independent of the truth of the [declarants’]
statements . . . .”). The district court did not abuse
its discretion by allowing the testimony.

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No. 08-3306 19
III. CONCLUSION
The defendant’s conviction is AFFIRMED.
10-8-10

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