259 F.3d 818 (7th Cir. 2001), 00-1234, United States v Carrera

Docket Nº:00-1234, 00-1264
Citation:259 F.3d 818
Case Date:August 03, 2001
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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259 F.3d 818 (7th Cir. 2001)




No. 00-1234, 00-1264


August 3, 2001

Argued January 8, 2001

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 552--Suzanne B. Conlon, Judge.

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John R. Lausch, Jr. (Argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Peter Goldberger (Argued), Ardmore, PA, Arch C. McColl, III, McColl & McColloch, Dallas, TX, for Defendants-Appellants.

Before Posner, Manion, and Kanne, Circuit Judges.

Kanne, Circuit Judge

Luis Carrera sold cocaine to a confidential informant, and he brought his brother, David Carrera, with him to the sale. As a result, Luis and David Carrera were both charged with conspiring to possess cocaine with intent to distribute. Luis ultimately pleaded guilty to the indictment, and David was found guilty by a jury. In this consolidated appeal, David and Luis Carrera both raise a number of issues regarding their respective convictions and sentences. Because we find no errors requiring reversal, we affirm.

I. History

A. The Arrest of Luis and David Carrera

On July 27, 1999, Francisco "Cisco" Soto made arrangements through drug broker Caesar Salazar to sell five kilograms of cocaine for $19,500 per kilogram to one of Salazar's customers. Unbeknownst to Soto, Salazar had become a confidential informant, and his "customer" was actually Investigator Calderon, an undercover agent. Because Soto was unavailable to deliver the cocaine that night, the parties agreed that Luis would make the delivery, and that they would share the responsibility for his fee. Through a series of recorded telephone conversations, Salazar and Luis agreed to meet at the Holiday Inn in Hillside, Illinois at 9:00 p.m. to complete the sale.

About 8:00 p.m. on July 27, Luis and his brother David1 were on their way to buy a garage door opener for a garage door they had purchased earlier in the day when Luis informed David that he needed to meet a friend before they ran their errand. David, a construction worker by trade, knew that his brother was involved in dealing drugs and did not ask any questions. At approximately 9 p.m., David and Luis pulled into the parking lot of the Holiday Inn in a pick-up truck. Luis instructed David to tell Salazar and Calderon, who were waiting in the parking lot, to come over to the truck. David then exited the truck and walked towards the two men. After speaking briefly with Calderon and Salazar, David proceeded about thirty feet from the truck to the front of the hotel and sat on a brick ledge.

Upon reaching the truck, the undercover agent and the informant had a conversation with Luis, which was recorded by the agent's body microphone. Luis opened his backpack and displayed five bricks of cocaine. Calderon opened one of the packages and determined that the substance was, in fact, cocaine. He then suggested that Luis's "friend" count the money. Luis agreed that David would count the money, and the men decided that they would exchange the cocaine for the money inside the buyer's hotel room. Luis, carrying the backpack containing the cocaine, exited his truck and began walking toward the hotel with Salazar and Calderon. As they approached the entrance, Luis instructed his brother to join them. David got up and followed the three men into the

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hotel. After the men entered the hotel elevator, agents arrested Luis and David and pretended to arrest Salazar. The agents also recovered the backpack, which was later found to contain 4,975 grams of cocaine.

B. The Post-Arrest Statements of David and Luis Carrera

After their arrests, Luis and David Carrera were transported to the Hillside Police Department and placed in a cell together. Subsequently, Luis was taken to a conference room and interviewed by Investigator Calderon, Investigator Woytko, and Special Agent Ohlin. Luis admitted that he had obtained the cocaine the week before by traveling to Mexico and arranging for five kilograms to be delivered to him in Laredo, Texas. He explained that he had purchased the cocaine for $10,000 per kilogram and that he expected to personally make a $35,000 profit on the deal. According to Luis, the rest of the money was to go to others involved in the deal, but not to his brother David. He admitted that David knew that he sold drugs, but he maintained that David had only come with him as a favor to help him count the money. After Luis gave his statement, one of the agents prepared a typewritten statement for Luis to sign. According to the agents, Luis admitted that the statement was true but refused to sign it until David saw it.

David was then brought into the room. Before the agents had a chance to say anything, David allegedly blurted out, "what my brother told you guys is true." The agents proceeded to tell David what Luis had said, and they gave him the typewritten statement to read. David agreed that the typewritten statement was true, and the agents repeated their request for Luis to sign it. Luis again replied that the statement was true, but he still refused to sign it. The agents then removed Luis from the room and proceeded to interview David alone. During this interview, David admitted that he knew that his brother sold cocaine, and that he assumed that Luis was going to do a drug deal that night. According to the agents, he also stated that he had accompanied Luis to the hotel to help him "take care of business."

C. Proceedings Against Luis and David Carrera

On September 22, 1999, David and Luis Carrera were each charged with one count of conspiring to possess with intent to distribute at least five kilograms of mixtures containing cocaine in violation of 21 U.S.C. sec. 846 and 18 U.S.C. sec. 2, and one count of possession with intent to distribute approximately five kilograms in violation of 21 U.S.C. sec. 846 and 18 U.S.C. sec. 2.

On October 26, 1999, one week before defendants' joint trial was scheduled to begin, Luis's court appointed attorneys, John A. Meyer and Timothy O'Connor,2 filed an emergency motion to withdraw as counsel for Luis. The motion offered two reasons necessitating withdrawal: Luis Carrera's family had retained private counsel, and the rules of professional responsibility required withdrawal as a result of "matters that arose for the first time on October 25, 1999."

The court considered the motion the next day during a pretrial hearing. Luis's proposed new counsel was not present. Meyer explained to the court that Luis had informed him the previous day that his family had retained a new attorney, and that he no longer wished to have Meyer

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and O'Connor represent him. Meyer stated that he had contacted Luis's family and was told that the new counsel would be in court for the start of trial on November 1. He told the court that he had advised Luis and Luis's family that this was unacceptable, and that the new attorney needed to be in court that day to ask the court's permission to substitute. Meyer did not know the name of Luis's new attorney, and neither he nor the government had been contacted by anyone claiming to be Luis's new attorney.

After listening to this explanation, the district judge stated, "[a]ll right, then, I'm going to have to deny your motion." Meyer then reminded the court that the motion to withdraw was based not only on Luis's desire for new counsel but also on professional responsibility considerations. At that point, the following colloquy took place:

The Court: Well, that presents a problem. I'll think about that problem. But has Mr. Carrera disclosed to you who this attorney is?

Mr. Meyer: No he hasn't Judge. And perhaps he could, if he knows the name.

Luis Carrera: Your Honor, I spoke to my attorney and stuff and, ah, things aren't--things aren't working the way, you know that I--you know that I assume they would have been and I'm just not happy with the stuff that is going on. So I requested, you know, to get some other attorneys.

The Court: Well,--

Luis Carrera: And my family is looking into it. I just-- I just told him yesterday that I didn't want them to represent me.

The Court: Well they are appointed by the court to represent you. And they weren't just appointed yesterday, they were appointed quite some time ago. And Mr. Meyer has done quite a bit of trial preparation, we had a pretrial conference, we're ready to try the case on Monday. And absent some kind of compelling good reason for a substitute of counsel, I cannot authorize them to withdraw at this point. If you had counsel here ready to go to trial, or would be ready to go to trial by next week, and somebody who's admitted to the bar, qualified to do so, of course I would grant the motion. But that's not the case. So the motion is denied.

Luis Carrera: Well, your honor, like I said, I just advised them yesterday that I was going to have an attorney come to speak to me today. But, you know, I was rushed over here. I was barely arraigned less than a month ago, I don't know if you can take that into consideration.

The Court: ... The motion is denied.

Tr. of Emergency Mot. Hr'g. at 5-6.

The joint trial of Luis and David began six days later, on November 2, 1999, with Meyer and O'Connor serving as counsel for Luis. On the morning of the first day of trial, Victor Ciardelli, the attorney retained by Luis's family, attempted to file some sort of emergency motion to postpone the trial. The exact sequence of events is a...

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