U.S. v. Cotts, s. 92-4121

Citation14 F.3d 300
Decision Date07 January 1994
Docket NumberNos. 92-4121,92-4127 and 93-1048,s. 92-4121
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Fundador COTTS, Victor Fernandez, and Carlos Rodriguez, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Barry R. Elden, Asst. U.S. Atty., Francis C. Lipuma, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for U.S.

Joseph R. Lopez, Kevin E. Milner (argued), Law Offices of Kevin E. Milner, Chicago, IL, for Fundador Cotts.

Luis M. Galvan (argued), Office of the Federal Defender Program, Chicago, IL, for Victor Fernandez aka Marce.

Irwin L. Frazin (argued), Janis S. Marzuki, Chicago, IL, for Carlos Rodriguez aka Tony Tata.

Before GIBSON, * CUMMINGS and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

After a jury found them guilty of various drug and gun offenses, Fundador Cotts, Victor Fernandez and Carlos Rodriguez were sentenced under the Sentencing Guidelines to lengthy prison terms. Dissatisfied with their lot, these men have raised various challenges to the district court's application of the Guidelines in their respective cases. Because we find no error in any of the district court's sentencing-related determinations, we affirm.

I.

All the convictions in this case stem from a rather elaborate and quite successful government sting operation. Through the help of a confidential informant, an undercover agent was able to gain the confidence of the defendants and pose as a relatively large-scale drug trafficker. The agent negotiated several "reverse buys" in which multiple-kilogram amounts of cocaine were to be sold to the various defendants. Using audio and video tape recordings and other concerted surveillance techniques, the government was able to chronicle in detail defendants' active participation in the proposed drug transactions. As a result, defendants were convicted and sentenced on multiple charges. On appeal, they only contest their sentences, challenging the individual offense-related Guideline determinations that the district court made from its inspection of the accumulated investigative information. We will recount the evidentiary details of this case most pertinent to the disputed sentencing decisions.

In early April, 1992, a confidential informant (CI) in the employ of the government had a series of telephone conversations with defendant Cotts and Victor Torres in which the latter two men inquired about opportunities to purchase cocaine from the CI's source. The CI introduced the two men by telephone to a special agent of the Northeastern Metropolitan Enforcement Group (an Illinois agency investigating narcotics crimes in conjunction with the federal Drug Enforcement Agency) posing as the CI's cocaine supplier. Cotts proposed a purchase of five kilograms of cocaine from the agent at a price of $18,000 per kilogram. When Cotts mentioned that he only had $48,500 currently available, the agent told Cotts that he would sell three kilograms and only if Cotts could provide $50,000 in cash and pay off the remaining $4,000 shortly after the initial exchange of drugs and money. Cotts agreed. Minutes after this conversation establishing the terms of the deal ended, telephone records show a call being placed from Torres' residence to the residence of defendants Rodriguez and Fernandez.

On April 16, Torres and the agent spoke again. Torres indicated that he and Cotts had assembled the money and would meet the agent later that day at the Hillside shopping center to consummate the transaction. He also mentioned that he and Cotts would later be able to purchase another five kilograms from the agent. At 4:30 p.m., Cotts and Torres arrived at the Hillside parking lot in Cotts' car. They met the agent in the parking lot and showed him a bag in the trunk of Cotts' car that contained $52,000 and indicated their readiness to carry out the exchange. The agent then told Cotts and Torres that he would retrieve the cocaine from his car. Instead, he clandestinely signalled other agents in the area to converge and execute an arrest. The agents detained Cotts and Torres, recovered the $52,000 and an electronic scale from Cotts' car, and seized a loaded nine millimeter pistol from Cotts' waist. The officers also simulated an arrest of the agent in order to deflect any suspicion of the agent's police connection. Cotts and Torres were allowed to leave after a check revealed no warrants outstanding for either man. That evening a phone call was made from Torres' residence to the Rodriguez/Fernandez residence, and Rodriguez and Fernandez met with Cotts at his house that night.

Several days later, the agent again spoke with Torres on the telephone. Torres mentioned that Cotts was upset about the incident at Hillside on April 16 and suspected that the CI had tipped off the police. The agent said that he believed someone other than the CI was probably responsible for disclosing the planned transaction to the police. In subsequent conversations that same day, Torres told the agent that Cotts wanted the agent to meet with him and his son and that Cotts had already tried to page him several times at his beeper number.

Soon after the agent's last conversation with Torres, Cotts did page the agent, and the two conversed by phone. After discussing the events at Hillside with the agent, Cotts handed the phone over to Rodriguez whom Cotts introduced as his son. In the discussion that followed, Rodriguez said that some of the money seized at Hillside was his and that it was he who was supposed to have picked up the drugs there. Rodriguez also stated that he had some police connections and would use them to investigate the source of the leak that seemingly doomed the Hillside venture. Furthermore, in this conversation and a later one, Rodriguez asked the agent to sell him more cocaine and assured the agent that he was willing and able to purchase ten to twenty kilograms.

On April 24, Rodriguez and the agent spoke again. The agent told Rodriguez that the informant was probably a (fictitious) person named Indy and asked Rodriguez to check Indy's license plate number through his police connections. They agreed that for one kilogram of cocaine Rodriguez would arrange to have the informant killed. Rodriguez also told the agent to supply him with as much cocaine as possible, promising that he could resell it. He told the agent that cars could be used as collateral to secure the future purchase pending an inflow of cash upon resale. After this conversation took place, two phone calls were made between the Cotts and Rodriguez/Fernandez residences, one later in the day and one the next day. On April 26, the agent called Rodriguez at a number the latter had provided. Fernandez answered, said he was Rodriguez's partner and housemate, and stated that he was the person who was going to run a check on the license plate of the supposed informant. In a phone conversation the next day, April 27, Fernandez and Rodriguez confirmed that the license plate information would be obtained. Later that same day, the agent spoke with Fernandez again and told him that twenty kilograms of cocaine were due to arrive shortly. Fernandez and the agent agreed to meet to negotiate a deal.

As arranged, Fernandez and Rodriguez rendezvoused that day with the agent at the Embassy Suites Hotel in Lombard. After discussing progress in the plot to kill Indy, the three negotiated a ten kilogram cocaine purchase. They agreed that Rodriguez and Fernandez would receive one and one-half kilograms as a good faith gesture to make up for the financial setback at Hillside, one kilogram for the hit on Indy--one-half in advance and one-half after the murder--and eight kilograms at a price of $19,500 per kilogram. Rodriguez indicated that he did not have any funds currently available to finance the transaction because of the loss he incurred as a result of the Hillside incident but said he would transfer titles to several cars to the agent as collateral and pay over $125,000 as soon as he resold five kilograms to a particular buyer. Rodriguez and Fernandez also discussed the possibility of future transactions with the agent, claiming that they could distribute at least twenty kilograms of cocaine per week.

After the agent left the hotel, Rodriguez and Fernandez spoke with three men who apparently had been conducting surveillance of the meeting, one of whom had been present at Cotts' garage with Rodriguez and Fernandez on the evening of the Hillside incident. The three observers left the Embassy Suites in a car registered to Cotts. That evening the agent had several telephone conversations with Rodriguez, and the two finalized plans for the upcoming deal. Rodriguez said that he had a buyer to whom he would deliver five of the ten kilograms while the agent and Fernandez would remain in the hotel room and wait for him to return with the proceeds of that resale. On the appointed day, April 28, the agent and Fernandez reconfirmed the deal by phone.

In the afternoon, the agent, Rodriguez and Fernandez met in a room at the Best Western hotel in Elk Grove Village. After Rodriguez and Fernandez discussed how and when they would carry out the killing of Indy, Rodriguez presented the agent with five car titles as collateral for the pending cocaine transaction, stating that the cars were Cotts'. Also, Fernandez mentioned that half of the money seized at Hillside was his and Rodriguez's and the other half was Cotts'. Another law enforcement agent, posing as the agent's girlfriend, then entered the room with two kilograms of cocaine that Rodriguez and Fernandez proceeded to examine, apparently to their satisfaction. The four then left the room and walked to the agent's car in order to transfer the other eight kilograms of cocaine to Rodriguez and Fernandez. In the parking lot, more agents moved in. They executed the arrest of Rodriguez and Fernandez, in the process...

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