Salome Varela v. United States of America

ΠThe parties have waived oral argument. Thus, the appeal is
submitted on the briefs and the record. See Fed. R. App. P. 34(a)
and Cir. R. 34(f ).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2792
S ALOME V ARELA ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 1945—Charles R. Norgle, Sr., Judge.
____________
S UBMITTED J ANUARY 3, 2007Œ—D ECIDED F EBRUARY 26, 2007
____________
Before K ANNE , R OVNER , and E VANS , Circuit Judges.
K ANNE , Circuit Judge. A jury found Salome Varela guilty
of one count of participating in a RICO conspiracy, 18
U.S.C. § 1962(d); four counts of violating the Hostage
Taking Act, 18 U.S.C. § 1203(a); one count of conspiracy to
kidnap, id.; one count of kidnapping, 18 U.S.C. § 1201(a);
one count of assault on a federal officer, 18 U.S.C. § 111;
and three counts of using a firearm during a crime of

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2 No. 05-2792
violence, 18 U.S.C. § 924(c). On January 28, 1998 the
district court sentenced Varela to consecutive terms of life
and forty-five years’ imprisonment. After his conviction
and sentence were affirmed on direct appeal, Varela filed
a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255, arguing that his Sixth
Amendment confrontation right was violated when a
witness testified as to the incriminating statements of a
non-testifying co-defendant. Finding, as the district court
did, that the issue is procedurally barred, we affirm the
decision below.
I. B ACKGROUND
A. Factual Background
Varela and his co-defendants at trial, Miguel Torres,
Jose de la Paz Sanchez, and Jesus Ruiz, kidnapped four
victims in an attempt to collect drug debts believed to be
owed by either the victims or their family members. Each
victim was kidnapped in a blue and white conversion
van during June 1996. Victims were then taken to one of
two locations in Chicago, either a house on Newland
Avenue or an apartment on Moody Avenue, where they
were handcuffed and beaten. The kidnappers then con-
tacted family members of the victims and demanded
ransom payments. Three of the four victims were able to
escape but seventeen-year-old Jaime Estrada was not so
fortunate.
In order to show the seriousness of their threats, the
kidnappers shot Estrada in the abdomen with a hollow-
point bullet, leaving a one and one-half inch wound. The
kidnappers called Estrada’s family, informed them that he
had been shot, and demanded $30,000 in ransom. The
Estrada family contacted the FBI and recorded several
ransom calls, some of which were made by Varela.
Estrada’s brother complied with the ransom demand by

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No. 05-2792 3
leaving $30,000 in a suitcase in a locked car at 44th and
Pulaski in Chicago. Varela, Ruiz, and Torres arrived to
retrieve the ransom while Sanchez stayed behind to watch
over Estrada. When Ruiz attempted to enter the ransom
car, FBI agents moved in. A high-speed chase ensued,
during which Varela pointed a pistol at an FBI agent. The
kidnappers were apprehended after a dangerous chase
reaching nearly 100 m.p.h. on the Stevenson expressway.
At the time of arrest Varela had in his possession: keys
to the Newland Avenue house, a .45 caliber magazine,
loose .380 caliber ammunition, two pagers, and a piece of
cardboard with Estrada’s brother’s cell phone number
written on it. Agents found the blue and white van used in
the abductions, which contained bulletproof vests and
blood that was later identified through DNA testing as
Jaime Estrada’s. Varela’s fingerprints were inside of the
van, as well as at the Newland Avenue house and the
Moody Avenue apartment. The Moody Avenue apartment
was linked to Estrada through blood and fiber evidence,
and the Newland Avenue house contained handcuffs, an
assault rifle, ammunition, duct tape handcuffs, documents
for the purchase of the van, and the keys to the van.
Eyewitnesses identified Varela as one of the kidnappers at
trial, and witnesses also testified that the voice on some of
the recorded ransom calls was his.
Estrada was found alive at a used car lot on the west
side of Chicago the day after the arrest and more than
twenty-four hours after he was shot. Estrada died from his
injuries and the delay in treatment thirty days later. The
bullet he was shot with was consistent with a bullet fired
from the assault rifle found in the Newland Avenue house.
B. Procedural Background
At trial, Cosme Duarte, a relative of all four defendants,
testified as to statements that Sanchez had made to him.

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4 No. 05-2792
He testified that Sanchez came to his house one morning
and asked him in private whether he knew anyone with
medical training who could provide treatment to someone
that he and the kidnappers had shot. Duarte further
testified that Sanchez returned several days later to ask
for help again and explained that they had abandoned the
person they shot, and that the other kidnappers had been
arrested while attempting to pick up the ransom. Evaristo
Ramirez, an acquaintance of all four defendants, also
testified that Sanchez asked him for help. Sanchez was
arrested in California on July 19, 1996.
After a jury trial, Varela was convicted of all charges
against him and sentenced to consecutive terms of life
imprisonment plus forty-five years. On direct appeal,
Varela argued that Duarte and Ramirez’s testimony as to
Sanchez’s statements was inadmissable hearsay under
Rules 804(b)(3) and 801(d)(2)(E) of the Federal Rules of
Evidence. After oral argument, and before the court’s
decision, Varela submitted the Supreme Court’s plurality
decision in Lilly v. Virginia as supplemental authority. See
527 U.S. 116 (1999). Lilly examined the rule that allowed
hearsay evidence that fell into a “firmly rooted” hearsay
exception to be admitted at trial despite the protections of
the Confrontation Clause. Id. at 126 (citing White v.
Illinois, 502 U.S. 346 (1992); Ohio v. Roberts, 448 U.S. 56
(1980); Mattox v. United States, 156 U.S. 237 (1895)).
A hearsay exception is “firmly rooted, if in light of
longstanding judicial and legislative experience it rests on
such a solid foundation that admission of virtually any
evidence within it comports with the substance of the
constitutional protection.” Lilly, 527 U.S. at 126 (internal
citations, alterations, and quotations omitted) (citing
Idaho v. Wright, 497 U.S. 805, 817 (1990); Roberts, 448
U.S. at 66)). The Lilly Court cautioned against sweeping
the out-of-court incriminating statements of co-conspira-
tors into the exception to the hearsay rule for statements
against penal interest and noted that these statements do

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No. 05-2792 5
not necessarily carry independent guarantees of trustwor-
thiness. Lilly, 527 U.S. at 126. Thus, “an accomplice’s
statements that shift or spread the blame to a criminal
defendant . . . fall[ ] outside the realm of those ‘hearsay
exception[s] [that are] so trustworthy that adversarial
testing can be expected to add little to [the statements’]
reliability.’ ” Id. at 133 (quoting White, 502 U.S. at 357).
While accomplice statements may not automatically be
deemed trustworthy, a review of the facts surrounding the
statement may prove it reliable, and thus admissible.
Id. at 137-38.
Varela had the opportunity to submit Lilly as supple-
mental authority before this court made its decision on
direct appeal, and it was in fact binding on this court.
Nonetheless, Varela’s conviction and sentence were
affirmed. It is for this very reason that the district court
found Varela’s Confrontation Clause argument to be
procedurally barred in this case, and denied his motion to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255. Varela appealed to this court and the
parties agreed to waive oral argument.
II. A NALYSIS
We review the district court’s denial of § 2255 relief de
novo and its findings of fact for clear error. Cooper v.
United States, 378 F.3d 638, 640 (7th Cir. 2004).
The crux of Varela’s argument before this court is that
Duarte and Ramirez’s testimony that Sanchez (Varela’s co-
defendant) came to them asking for help with a wounded
victim he and others had kidnapped is unreliable, inadmis-
sible hearsay under Lilly. Before we can reach the merits
of this argument, we must determine whether the issue is
procedurally barred.
A § 2255 motion is “neither a recapitulation of nor a
substitute for a direct appeal.” McCleese v. United States,

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6 No. 05-2792
1 The strength of the facts supporting the credibility of this
testimony is why this particular argument was not specifically
(continued...)
75 F.3d 1174, 1177 (7th Cir. 1996) (quoting Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992) (overruled
on other grounds)). Issues that were raised on direct
appeal may not be reconsidered on a § 2255 motion absent
changed circumstances. Olmstead v. United States, 55 F.3d
316, 319 (7th Cir. 1995); Belford, 975 F.2d at 313.
Varela argues that Lilly’s requirement of particularized
guarantees of trustworthiness for the admission of the out-
of-court statements of co-conspirators constitutes changed
circumstances such that this court should reconsider the
admissibility of Sanchez’s incriminating statements. But
on direct appeal, Varela argued that Sanchez’s statements
were inadmissible hearsay under the Federal Rules of
Evidence. Lilly was decided after oral argument, and
Varela submitted it to the court as supplemental authority
before we issued our decision. Despite Lilly, we found the
statements admissible. The issue was before us and there
are no changed circumstances warranting a reconsidera-
tion of the issue. Alternatively, Varela argues that the
government has waived the argument that the issue is
procedurally barred by failing to raise it below. However,
it is within the district court’s discretion to consider the
default issue sua sponte so long as the government has not
manifested, implicitly or explicitly, a decision to forego the
argument. Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir.
1998) (citing Henderson v. Thieret, 859 F.2d 492, 498 (7th
Cir. 1988)). Thus, the district court properly found that
Varela was procedurally barred from raising the issue of
Sanchez’s statements’ admissibility.
Even if the issue were not procedurally barred, the
requirements of Lilly are clearly met in this case. 1

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No. 05-2792 7
1 (...continued)
addressed in our opinion on direct appeal. United States v.
Torres, 191 F.3d 799 (7th Cir. 1999).
USCA-02-C-0072—2-26-07
Sanchez’s statements were not made to law enforcement
and were not designed to shift the blame from himself to
others. Rather, Sanchez sought out family members and
friends to ask for help in obtaining medical attention for
Estrada after the kidnappers had shot him. The facts
surrounding these statements lend credence to their
reliability and render them admissible. Furthermore, the
evidence against Varela presented at trial was overwhelm-
ing and any error in the admission of Sanchez’s statements
was harmless. See United States v. Westmoreland, 240
F.3d 618, 628-29 (7th Cir. 2001).
III. C ONCLUSION
For the foregoing reasons the judgment of the district
court denying Varela’s motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 is
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

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