541 F.3d 735 (7th Cir. 2008), 07-1561, United States v. Campos

Docket Nº:07-1561.
Citation:541 F.3d 735
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gustavo CAMPOS, Defendant-Appellant.
Case Date:September 03, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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541 F.3d 735 (7th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gustavo CAMPOS, Defendant-Appellant.

No. 07-1561.

United States Court of Appeals, Seventh Circuit.

September 3, 2008

         Argued Feb. 14, 2008.

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          Stuart D. Fullerton, Faris Hussein (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

         Nishay K. Sanan (argued), Chicago, IL, for Defendant-Appellant.

         Before RIPPLE, SYKES, and TINDER, Circuit Judges.

         TINDER, Circuit Judge.

         Gustavo Campos was charged with nine other defendants in a multi-count indictment with a drug conspiracy and other drug-related crimes. A jury convicted him as charged, and the district judge sentenced him to a term of life imprisonment. Campos contends on appeal that there was a fatal variance between the conspiracy charged in the indictment and the government's proof at trial. He also contends that the district court erred in declining to give his proposed multiple conspiracies jury instruction and in denying his motion to suppress wiretap evidence. He challenges the reasonableness of his sentence as well. We affirm.

         I. Background

          This case involves the large-scale drug-trafficking of hundreds of kilograms of cocaine and thousands of pounds of marijuana from Texas to Chicago from 2001 into the early part of 2004. The trafficking had three phases, but it involved a constant

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and common goal-the transportation of large quantities of cocaine and marijuana from Texas to Chicago for re-sale there. Another constant factor in this situation was the guiding hand of Gustavo Campos at the center of every aspect of the trafficking, from top to bottom. In the first phase of operation, from the summer of 2001 to March 2002, several trips were made to transport large quantities of cocaine and marijuana from Texas to Chicago using semi-trailers which were towed by semi-tractors. The drugs were hidden in false compartments located in the semi-trailers. In March 2002, Drug Enforcement Agency (“DEA" ) agents seized one of these semi-trailers while en route from Texas to Chicago with 250 kilograms of cocaine. After this seizure, a second phase began, lasting from about April 2002 to June 2003, in which passenger vehicles including rental cars were used to transport drugs and money. This phase ended in June 2003, when the DEA seized a rental car after it had been loaded with cash for a trip from Chicago to Texas; the ensuing search led to the discovery of over $135,000 in hidden cash. At that point, a third, but familiar, phase of operation began in which the use of semi-tractors/ trailers resumed as the mode of drug transportation. This third and final phase spanned from July 2003 to February 2004. On February 10, 2004, DEA agents seized approximately 325 kilograms of cocaine from a Chicago warehouse, bringing the operating aspects of this trafficking to a close, and shifting the governmental scrutiny of it from investigation to prosecution.

         The evidence at trial demonstrated that the three phases of trafficking described above constituted a conspiracy. Campos led the conspiracy, running all aspects-financing, recruiting, and operations-from Chicago. Felix Herrera was the head of the conspiracy's Texas operations. He coordinated the loading of drugs into semi-trailers and passenger vehicles. Martin Vasquez supervised the semi-tractor/trailer transportation and, in many cases, drove the passenger cars between Chicago and Texas. Campos, Herrera, and Vasquez participated in the conspiracy throughout all three phases.

         In 2001 Campos was looking for drivers to transport drugs from Texas to Chicago. So he asked Vasquez, a former trailer salesman, if he knew of a truck driver eligible to drive in all 48 contiguous states. Vasquez introduced Campos to Jerry Maj, the owner of Jerry's Advanced Trucking located in Summit, Illinois. Campos and Vasquez met with Maj, and Campos offered Maj $25,000 to drive a semi-tractor/trailer round trip from Chicago to Texas, returning with drugs, specifically marijuana. Maj accepted the offer. At about the same time, Jacek (or Jack) Zelek was working as a commercial truck driver for Maj. Zelek's semi-tractor needed repairs, so he asked Maj for a loan of $20,000. Maj agreed to loan Zelek the money, if Zelek would transport drugs from Texas to Chicago. Zelek agreed.

          In or around August 2001, Campos arranged to have the inside of the semi-trailer outfitted with a false front wall for purposes of concealing large quantities of drugs and cash for transportation between Texas and Chicago. Campos offered Vasquez $5,000 to travel to Texas with Zelek, meet with Campos's Texas contacts, including Herrera, and deliver money to be hidden in the trailer. Vasquez accepted. As a result, once the customization of the semi-trailer was finished, Campos conducted a final inspection and placed $1,475,000 in cash behind the false wall. The next day Zelek and Vasquez made the trip from Chicago to Texas. Upon their arrival, Vasquez called Campos who said that he and Zelek would be met by a group of men whom they should follow to another location.

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A short while later, Vasquez and Zelek were approached by some men, just as Campos had indicated. Vasquez and Zelek followed the group to a residential area where they parked the semi-tractor/trailer. Zelek remained in the semi-tractor while Vasquez removed the false front wall from the semi-trailer and the cash was removed. Campos repeatedly called Vasquez to check on the status of the operation. Once their mission was accomplished, Vasquez and Zelek returned to Chicago.

         Zelek made six more round trips between Chicago and McAllen or Roma, Texas, for the conspiracy from August to December 2001. On all but two, he returned with a semi-tractor/trailer carrying drugs. Zelek was directed to leave the semi-tractor/trailer at a particular location, wait while the drugs and, typically vegetables, which were used to hide the drugs, were loaded onto the trailer, and then drive the semi-tractor/trailer back to Chicago. Campos paid Maj $25,000 for Zelek's first trip. But after that, Maj demanded more money, so Campos agreed to pay him $50,000 for each trip Zelek made for the organization.

         On December 4, 2001, DEA agents stopped Zelek's semi-tractor/trailer in Texas to conduct a routine inspection. They discovered 1,754 pounds of marijuana hidden in the semi-trailer and placed Zelek under arrest. Shortly after Zelek's arrest, Campos began searching for a replacement driver. His brother, Maximino Campos, recommended a commercial truck driver, Rogelio (or Roger) Perez.1

         On December 19, 2001, Maximino, acting at Campos's direction, offered to pay Perez to make round trips between Chicago and Texas. Perez was interested, so he was told to meet with Campos the next day. Perez met with Campos who told Perez that if he were a loyal member of the conspiracy, he would make a lot of money. At the end of the meeting, Campos offered Perez a position with the conspiracy, which Perez accepted. Campos told Perez that he would be in charge of transporting empty semi-trailers from Chicago to Texas and returning them to Chicago loaded with drugs. After the meeting with Campos, Perez met with Vasquez.

         A while later, Perez picked up an empty semi-trailer to haul to Roma, Texas. Vasquez gave Perez detailed driving directions from Chicago to Texas and a phone number with which to contact him when Perez reached Texas. Perez drove the semi-trailer to Texas. When he arrived, he was unable to reach Vasquez, so he called Maximino who told him that Herrera would meet him. Perez met with Herrera, dropped off the empty semi-trailer, and then returned to Chicago.

          In early February 2002, Campos met with Perez to ask him to make another round trip from Chicago to Texas. Unlike the first trip, this trip would involve transporting drugs hidden in a semi-trailer from Texas to Chicago. Campos offered to buy Perez a semi-tractor so he could make multiple round trips to and from Texas. Campos told Perez that he had a five-year contract which required him to transport six tons of cocaine from Texas to Chicago. Campos did not follow-up on his offer to buy Perez a semi-tractor, so Perez attempted to borrow one from a friend. But the friend was aware of the nature of the trip and refused to lend his semi-tractor. Campos told Perez to offer the friend more money ($40,000), but the friend still refused. A few days later, Campos summoned Perez to a meeting at which he expressed frustration with Perez's inability

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to obtain a semi-tractor. Campos told Perez that people in Texas were waiting for him. Perez responded that he would make one more attempt to obtain a semi-tractor. He contacted law enforcement instead.

         In late February 2002, Perez, by then working with the DEA, told Campos that he found a semi-tractor and that his friend Willie Chester, a/k/a “Rock," was willing to make the round trip between Chicago and Texas, bringing back drugs. Campos met with Rock to confirm that he could obtain the semi-tractor and make the trip. Satisfied with Rock, Campos paid him $9,000 in cash. Unbeknownst to Campos, however, Rock, like Perez, had begun working with the DEA. Rock made the round trip between Chicago and Texas. During the trip he stayed in constant contact with Perez who stayed in constant contact with Campos.

         On March 1, 2002, Rock, escorted by the DEA, returned to Chicago with the semi-tractor/trailer loaded with 250 kilograms of cocaine. The DEA seized the semi-trailer, searched it, and discovered the cocaine. When Campos learned of the this, he called Perez to a meeting at Maximino's...

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