U.S. v. Meza-Urtado, 02-3132.

• Citation: 351 F.3d 301
• Decision Date: 08 December 2003
• Docket Number: No. 02-3320.,No. 02-3643.,No. 02-3132.,02-3132.,02-3320.,02-3643.
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Secondino MEZA-URTADO, Defendant-Appellant, Cross-Appellee. United States of America, Plaintiff-Appellant, v. Juan Farias-Meraz, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 301

351 F.3d 301

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Secondino MEZA-URTADO, Defendant-Appellant, Cross-Appellee.

United States of America, Plaintiff-Appellant, v. Juan Farias-Meraz, Defendant-Appellee.

No. 02-3132.

No. 02-3320.

No. 02-3643.

United States Court of Appeals, Seventh Circuit.

Argued October 31, 2003.

Decided December 8, 2003.

John H. Newman, Barry Rand Elden (argued), Chief of Appeals, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Joshua G. Vincent, Reginald Parks, (argued), Hinshaw & Culbertson, Chicago, IL, Heather L. Winslow (argued), Office of Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

After Secondino Meza-Urtado filed an appeal from his conviction on drug charges, the government answered and filed a cross-appeal challenging a downward departure Meza received at sentencing. The government also tacked on an appeal of a similar downward departure granted to one of Meza's codefendants, Juan Farias-Meraz. Meza's appeal turned out to be especially bad news for Farias, as the government attorney told us at oral argument that an appeal of the downward departures may not have been undertaken had no direct appeal in the first instance been filed. This situation prompts us to recall the wisdom of our earlier advice that "defendants, who benefit from favorable calls under the federal sentencing guidelines, should think more than twice about appealing their cases when their appeals have little likelihood of success ... because a defendant's appeal may draw a guidelines cross-appeal when the government would [probably] not ... appeal on its own in the first instance." United States v. Bradley, 165 F.3d 594, 595 (7th Cir.1999). See also United States v. Martinson, 37 F.3d 353 (7th Cir.1994) (affirming conviction but finding clear error in reduction of offense level for acceptance of responsibility).

The facts of this case, very briefly, are that Meza had recorded telephone conversations regarding the sale of 3 kilos of cocaine at $23,000 per kilo. Meza and others, including Farias, arrived to sell the coke at a Kmart parking lot in Chicago. Farias was in the party "for protection." The deal went south because the purchasers turned out to be drug agents. Three kilos of cocaine were seized from a van involved in the aborted transaction.

Meza claims the evidence the jury heard was insufficient to convict him. He also raises related issues regarding what he sees as improper "leading questions" asked of Farias, who pled guilty to being involved in the drug deal and agreed to cooperate with the government by testifying against Meza and a codefendant. Finally, Meza questions the government's use during his trial of the colloquy that took place in court when Farias entered his guilty plea.

It's very difficult for a defendant to convince an appellate court that the evidence presented to a jury was insufficient to support a conviction. For one thing, we view all evidence in the light most favorable to the government and uphold verdicts if any rational trier of fact could have found that the elements of a crime were established. See United States v. Albarran, 233 F.3d 972 (7th Cir.2000). Stated another way, we will set aside a conviction only if "the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Laurenzana, 113 F.3d 689, 693 (7th Cir.1997). The short answer to the first issue in this case is that there is no basis for disturbing the verdict on sufficiency of the evidence grounds. Meza's own words, most of which were recorded, his actions on the day of the aborted drug deal, and some post-arrest statements were more than sufficient for the jury to have concluded that he was guilty of the charged crimes.

The "leading questions" issue is similarly without merit. Meza contends that the government's use of leading questions during its direct examination of Farias and another witness, Ortega (a "confidential source" working with the government to get the goods on everyone involved in the drug deal), was "so suggestive and excessive" that it deprived him of his Sixth Amendment right of confrontation. We disagree. As for Ortega, only four instances of allegedly improper "leading questions" are noted. The challenged questions, we think, were not improper. All simply directed Ortega to explain the meaning and context of transcripts of taped conversations that were admitted into evidence.

Six allegedly "leading questions" were asked of Farias, and three drew no objection. None, we think, were improper and all were necessary as Farias obviously became conveniently "forgetful" despite his agreement to help the government. In this situation, had the government asked, he could have been treated as a hostile witness and asked leading questions until the cows came home. See Fed.R.Evid. 611(c).

Although the questions asked of Ortega and Farias were not improperly leading, Meza would lose his appeal on this point even if they were because no objection to them was lodged, and thus our review would only be for plain error. United States v. Bonner, 302 F.3d 776 (7th Cir.2002). He would lose because an objection to a question as "leading" is only an objection to the "form" of the question. If an objection is offered and sustained, the examiner simply rephrases the question and draws the desired information from the witness. Any reasonably good lawyer worth his salt can accomplish this little trick. Without a sustained objection, an examiner would never have a chance to rephrase his question. For this reason, we think error, plain or otherwise, could never be identified in a case where only the form of a question to which no objection is made is challenged on appeal.

In his related claim, Meza argues that it was error to admit Farias's plea colloquy into evidence. During the trial, Farias turned out to be a slippery witness. He testified, for example, that on the day of the drug transaction he and others, including defendant Meza, were only going to the Kmart lot to help a friend. He testified he was offered $200 for going and for providing protection during the errand. These statements were contrary to sworn statements he made when he pled guilty. At the district court's suggestion, rather than read his plea colloquy to the jury, the government first attempted to refresh Farias's recollection with his statements. It was the government's position that Farias's prior sworn statements, which were inconsistent with his trial testimony, could be used for more than just refreshing his recollection, since they were admissible under Fed.R.Evid. 801(d)(1)(A). Outside the presence of the jury, Farias was read the testimony he gave when he entered his guilty plea. He then said his recollection was refreshed. But in front of the jury, he again testified inconsistent with his plea statements. For one thing, he did not acknowledge that the drug transaction was discussed on the way to the Kmart lot. Consequently, pursuant to Rule 801(d)(1)(A), the district court permitted the government to read the plea colloquy to the jury. In it, Farias admitted that a drug deal was to take place and that he was paid $200 for providing "protection." Because these sworn statements were clearly inconsistent with his trial testimony, they were properly received as substantive evidence. And because Farias could have been cross-examined at length about...