U.S. v. Garcia

• Citation: 439 F.3d 363
• Decision Date: 28 February 2006
• Docket Number: No. 04-3159.,04-3159.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fidel GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

439 F.3d 363

UNITED STATES of America, Plaintiff-Appellee, v. Fidel GARCIA, Defendant-Appellant.

No. 04-3159.

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2005.

Decided February 28, 2006.

Andrew Porter (argued), Margaret Hickey, Chicago, IL, for Plaintiff-Appellee.

Richard M. Goldwasser (argued), Chicago, IL, for Defendant-Appellant.

Before COFFEY, EASTERBROOK, and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge.

A jury found Fidel Garcia guilty of one count of conspiracy to distribute, 21 U.S.C. § 846, and one count of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). The district court sentenced him to two concurrent terms of 126 months' imprisonment and two concurrent terms of 5 years' supervised release. Garcia now contends that his conviction is illegal because the district court "deprived [him] of the presumption of innocence" by allowing an expert to testify that innocent parties do not attend drug deals. Garcia also argues, and the government concedes, that his sentence is erroneous under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm the conviction, but vacate the sentence and remand the case for resentencing under United States v. Schlifer, 403 F.3d 849 (7th Cir.2005).

I. BACKGROUND

Garcia was arrested on April 19, 2003, during a DEA sting operation and subsequently indicted with two others caught in the sting: Juan Angulo-Hernandez, who worked at the construction company where Garcia was union steward, and Mario Jara, Garcia's brother-in-law. The indictment charged each of them with one count of conspiring to distribute cocaine and one count of possession of cocaine with intent to distribute.

At trial, the government presented evidence that on April 19, 2003, Angulo-Hernandez phoned Garcia, asking him for "six burritos, meaning six kilos of cocaine," for sale to DEA informant, Roger Woods. Garcia met with Angulo-Hernandez; later they were joined by Jara, who did not know Angulo-Hernandez. Garcia, Jara, and Angulo-Hernandez then went together to the meeting with Woods. Angulo-Hernandez drove Garcia's Ford Expedition, and Garcia accompanied him as passenger. Garcia directed Jara to follow them in a Nissan carrying six kilograms of cocaine.

Angulo-Hernandez met Woods as arranged, and then, at Woods's request, drove with Garcia to Woods's house, followed by Jara. Angulo-Hernandez and Jara entered the house with Woods while Garcia remained in the Ford Expedition. Some time later, Woods told Angulo-Hernandez and Jara that he wanted to see the cocaine. Jara went outside to speak with Garcia. When he came back, Jara took Woods to the Nissan and showed him the cocaine.

Next, Woods told Angulo-Hernandez and Jara that they needed to go to the home of one of his friends to complete the transaction. Woods drove his own car, followed by Angulo-Hernandez and Garcia in the Ford Expedition and Jara in the Nissan. A short time later, the DEA and local law enforcement agents arrested Garcia, Jara and Angulo-Hernandez, and took them into custody.

In addition to direct testimony about the events preceding the arrest from Woods, his DEA handler, and Angulo-Hernandez (who provided evidence that Garcia was his drug source), the government submitted cell phone records that reflected calls between Angulo-Hernandez and Garcia, and between Garcia and Jara (but none between Angulo-Hernandez and Jara), as well as vehicle registration documents connecting Garcia (and no one else) with both the Ford Expedition and the Nissan.

The government also called Sergeant Robert Coleman who qualified as an expert in narcotics trafficking to testify to common practices in structuring drug deals. Over Garcia's objections, the court permitted Coleman to testify that none of the more than one hundred drug transactions he had personally observed had involved an innocent adult present at the scene. Furthermore, he explained that drug dealers typically do not allow people not involved in the transaction to be present because of the risk that they might leak the information to law enforcement authorities. In its closing arguments, the government emphasized this testimony, stating twice: "[y]ou heard ... innocent third parties don't go to drug deals."

Garcia decided not to present any evidence in his defense and simply argued that the government's evidence was insufficient, relying on the presumption of innocence and on the fact that there was no evidence that he participated in negotiations with Woods. Among other things, he asked the jury to use "common sense" to reject Coleman's expert testimony, and warned them that they could not convict him because of his mere presence during the transaction. The district court issued instructions concerning the government's burden of proof, the presumption of innocence, and the insufficiency of mere presence and guilt by association as a basis for conviction.

The jury found Garcia guilty on both counts set forth in the indictment. The presentence report ("PSR") recommended a base offense level of 32 for an offense involving at least 5 but less than 15 kilograms of cocaine, U.S.S.G. § 2D1.1(a)(3), (c)(4), and a two-level upward adjustment for a managerial or supervisory role in the offense, U.S.S.G. § 3B1.1(c). The PSR also recommended a criminal history category of II. These factors considered in combination with each other produced a guideline range of 168 to 210 months. Garcia, however, persuaded the trial judge that his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), would be violated by application of the adjustment for his role in the offense and the second criminal history point that raised him to a criminal history category of II. The district court calculated the guideline range minus any adjustment for Garcia's role in the offense and using a Criminal History category of I. This resulted in a range of 121 to 151 months (just above the statutory minimum of 120 months, see 21 U.S.C. § 841(b)(1)(A)). Treating the guidelines as mandatory, the district court thought neither the high nor the low end of the range appropriate and imposed a sentence of 126 months.

II. ANALYSIS

In framing his argument, Garcia suggests that he was deprived of his "presumption of innocence": by the admission of Coleman's expert testimony, and by the government's use of the testimony to argue in closing that he was involved in the drug deal. We treat the claims as one. Because the government's arguments did no more than summarize Coleman's testimony, any error with regard to them is adequately treated in addressing whether the admission of the expert testimony was error.

Initially we note that we have previously approved the admissibility of what Garcia himself admits is "substantially similar" testimony under the Federal Rules of Evidence. In United States v. Love, 336 F.3d 643, 645 (7th Cir.2003), we considered expert testimony that it was "[un]common for persons involved in a drug conspiracy" to allow other people to be present who are not involved in the particular transaction. Because the expert did not refer to the intent of the defendant or to his mental state, we rejected the defendant's claim that the testimony violated Federal Rule of Evidence 704(b) (forbidding testimony from expert witnesses as to "whether the defendant did or did not have the mental state or condition constituting an element of the crime charged"). Id. at 647. Moreover, we have relied upon and repeatedly upheld the admission of testimony of the same general nature concerning "common practices of drug dealers and how typical drug sales occur." Id.; see, e.g., United States v. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir.2000). We suggested at oral argument that such testimony might be impeached as inadequately scientific under Federal Rule of Evidence 702 (requiring expert testimony to be "based upon sufficient facts or data" and to be "the product of reliable principles and methods"), but this possibility cannot help Garcia because he did not raise a proper Rule 702 objection in the district court. The admissibility of Coleman's testimony thus is a high hurdle to overcome.

Garcia argues that the challenge he now brings is a different sort of challenge, but even if it is, it must fail because he has failed to demonstrate that Coleman's testimony did impact the presumption of innocence. The Supreme Court defined the presumption in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), as having two functions. It is first "a way of describing the prosecution's duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt," id. at 483, n. 12, 98 S.Ct. 1930; it also has the special function of "`caution[ing] the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced,'" id. at 484-85, 98 S.Ct. 1930 (quoting 9 J. Wigmore, Evidence § 2511, at 407 (3d ed.1940)). Thus, the presumption is violated when presentation of evidence at trial affects the quantum of proof required for conviction or when the jury is encouraged (or allowed) to consider facts which have not been received in evidence. Garcia has failed to demonstrate either sort of violation.

We understand him to be invoking the first function of the presumption of innocence when he implies that asking the jury to draw any inference that he knew of the drug transaction altered the quantum of proof required of the government. But his reasoning is flawed. Although some inferences may do so, the one at issue in this case does not because it was a rational inference of guilt and not a mandatory one. Non-mandatory inferences do not affect the application of the reasonable doubt standard unless "under the facts of the case, there is no rational way the trier of fact could make...