30 F.3d 788 (7th Cir. 1994), 91-1003, United States v. Nava-Salazar

Docket Nº:91-1003, 91-1041, 91-1042, 91-1052 and 91-1200.
Citation:30 F.3d 788
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ricardo NAVA-SALAZAR, also known as
Case Date:July 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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30 F.3d 788 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ricardo NAVA-SALAZAR, also known as "Jose", Guillermo Casas,

Darley Usma, also known as "Charlie", Ramon B.

Vasquez, Juan Rodriguez-Garcia,

Defendants-Appellants.

Nos. 91-1003, 91-1041, 91-1042, 91-1052 and 91-1200.

United States Court of Appeals, Seventh Circuit

July 13, 1994

Argued Dec. 10, 1993.

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Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Joseph D. Heyd (argued), Office of U.S. Atty., Chicago, IL, for U.S.

Marvin J. Leavitt, Leavitt & Schneider, Chicago, IL (argued), for Ricardo Nava-Salazar.

Gary Senner, Sanford M. Pastroff (argued), Karen Joan Dilibert, Emily Nozick, Jonathan Piper, Sonnenschein, Nath & Rosenthal, Chicago, IL, for Guillermo Casas.

Allan A. Ackerman, Chicago, IL (argued), for Darley Usma and Ramon B. Vasquez.

Before CUMMINGS, FRIEDMAN, [*] and CUDAHY, Circuit Judges.

FRIEDMAN, Circuit Judge.

In these consolidated appeals the five appellants challenge their jury convictions in the United States District Court for the Northern District of Illinois of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846. Three of the appellants challenge their convictions of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. One appellant also challenges his sentence. The criminal prosecution stemmed from an attempt to import and distribute a large quantity of cocaine, in which undercover agents of the Drug Enforcement Administration (DEA) played a significant role.

The appellants raise a number of issues. We reject all of their contentions and affirm the convictions and sentence.

I.

A. The jury could have found the following facts and drawn the following inferences from the evidence:

1. DEA agents in South Florida learned from confidential informants that the appellant Usma and others wanted to import large quantities of cocaine from Colombia to the United States. The DEA agents represented themselves to be drug traffickers with access to aircraft and facilities to pick up cocaine in Colombia, transport it into the United States, and deliver it for subsequent distribution.

On May 19, 1989, DEA agent Crawford met with Usma and Maya (a DEA contract pilot) in Florida. Usma introduced Crawford to Francis, an indicted conspirator who is a fugitive. Maya agreed with Francis and Usma to go to Colombia and make arrangements to use a clandestine airstrip to pick up the cocaine. Usma met Maya a few days later at the Miami International Airport, where Maya boarded a plane for Colombia. While in Colombia, Maya met Diego, who would supply the cocaine. Maya learned the location of the airstrip from Diego and received a radio frequency for reaching Diego.

On June 2, 1989, agent Crawford took Usma and Francis to inspect an undercover airplane hangar and an office, which he proposed they use. DEA agent Calderolli, posing as Crawford's partner, met the group at this undercover location. The group discussed the transportation of the first shipment of cocaine. Usma used a navigation chart to pinpoint the location of the airstrip in Colombia that Diego had disclosed to Maya. Usma and Francis discussed when the flight would be made, and Usma assured the agents that before the flight he would send them money to cover their expenses. Usma later paid Luis Salazar (a DEA informant)

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$95,000 for expenses on the first shipment.

While they inspected the planes, Francis and Usma discussed whether to deliver the first shipment to Chicago or New York, and Usma ultimately decided on New York. Francis also discussed the number of bales of cocaine in each shipment.

On June 16, Usma met with Crawford, and told him the contact in Chicago would be "Jose" (the appellant Nava) and confirmed a pager number at which Jose could be reached.

2. The next day Maya flew a DEA plane to the designated airstrip in Colombia, picked up 500 kilograms of cocaine and returned to Florida. DEA agents met the plane in Tampa and obtained the cocaine.

Crawford flew to Chicago that same day and called the appellant Nava at the pager number Usma had provided.

After discussions and meetings at which they discussed the transportation of the cocaine to Chicago and the arrangements for turning it over, Nava gave Crawford papers and keys to a red van that had been rented under a false name and which Crawford would use to deliver the cocaine. Nava stated that he had to deliver 300 kilograms immediately to "Guillermo" (the appellant Casas) and that he would sell the rest.

The DEA flew the 500 kilograms of cocaine to Chicago on June 18. Usma was delayed in reaching Chicago, so the DEA stored the cocaine and postponed delivery until the following day.

The next day, after the appellant Casas returned a page from Nava's telephone, Casas joined Usma, Luis, Salazar and Nava at the Holiday Inn parking lot. Casas and Nava carried a box into the hotel; Casas later admitted that he had delivered $45,000 in expense money for the 500 kilogram cocaine shipment.

Crawford then drove a red van into the parking lot. Usma and Crawford removed the van seats to make room for the cocaine. In response to Crawford's anger over Usma's delay, Usma assured Crawford that "next time is for ready." At Nava's direction, Crawford, Usma and Nava retrieved some signs to put on the van. Crawford, Nava and Usma drove to their rendezvous point, a truckstop, in three separate vehicles.

Crawford continued to the airport, met the DEA agents with the cocaine, and drove back with the cocaine in the van to the truckstop, where the undercover DEA agents met with Nava and Usma. Nava was noticeably nervous. Usma asked about the cocaine, and then told Nava, "You know what to do." Nava got the keys to the red van from Crawford, gave a beeper to Usma, and everyone agreed to meet later at the Holiday Inn. After the cocaine was loaded in the van and Nava checked to make sure that the bales were not visible from the windows, Nava drove away.

The Illinois State Police stopped Nava for speeding. Nava consented to a search of the van. Upon discovering the cocaine, the police arrested Nava and seized the van. When arrested, Nava had a mobile phone and Casas' business card. After Usma saw the van being stopped, he checked out of his hotel and called Casas from a new hotel.

3. DEA agents later renewed contact with the smugglers and offered to provide transportation for additional shipments of cocaine, as Francis and Usma had discussed. On July 27, 1989, a little more than a month after Nava's arrest, DEA agent Reina called Diego in Colombia, and they discussed what went wrong with the 500 kilogram shipment. Diego told Reina he had been receiving information from Usma and Francis about what happened. Reina offered his services for future shipments of cocaine to the United States and Diego said he was interested.

Reina called Diego several more times. They discussed the amount still owed to Crawford's people for their work on the first shipment. Diego agreed with Reina's suggestion that Francis and Usma should not participate in future shipments and that Reina should deal directly with Diego or his brother who, Diego stated, knew Casas. Diego indicated he would send his right-hand man to inspect the Florida facilities.

In August 1989, Reina learned that Diego had been murdered in Colombia. Reina then

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returned a call from Diego's brother Pinguino, also known as Fanor Arizabaleta. Pinguino asked about the persons involved in the first shipment of cocaine, and mentioned that Usma worked for him long ago. Pinguino wanted to continue the business arrangement with Reina that Diego had begun. Reina and Pinguino spoke several times.

Pinguino agreed to pay Reina the same fee for the next shipment, and $200,000 up front as a deposit. Pinguino told Reina he would send "Jorge" (the appellant Vasquez) to meet him. Pinguino told Reina that Vasquez had worked for him for eleven years. Pinguino asked if Reina could transport future cocaine shipments through Mexico into the western United States, and Reina said that was possible.

On August 22, 1989, while talking with Reina, Pinguino mentioned that Usma was in Colombia. Pinguino knew that Usma was aware of Diego's deals, including the seized 500 kilogram shipment. Pinguino reassured Reina that Vasquez would arrange a meeting and mentioned that Vasquez was in Colombia delivering money for him.

Soon after, Reina received a call from the appellant Rodriguez, who arranged to meet Reina to inspect Reina's transportation facilities for future shipments of cocaine. Reina and Crawford picked up Rodriguez, who told them his job was to inspect the planes and facilities and report back to Pinguino and Vasquez. The next day Pinguino told Reina that he had already spoken with Rodriguez, who reported that the facilities were all right, and with Vasquez, who was evaluating what Rodriguez told him. Pinguino discussed sending future shipments via Mexico and wanted Vasquez to be informed about this. Pinguino also indicated there would be a delay in the next shipment because the airstrip Maya had used in their prior deal with Diego was not available. Pinguino said he would have Vasquez call Reina.

After that telephone conversation with Pinguino, Reina received a call from Vasquez, who had returned from Colombia, where he was working with Pinguino. Vasquez discussed with Reina the negotiations for the next shipment and indicated that he wanted to meet...

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