U.S. v. Adames

• Decision Date: 07 February 1996
• Docket Number: Nos. 94-1095,94-1102 and 94-1186,s. 94-1095
• Citation: 56 F.3d 737
• Parties: 41 Fed. R. Evid. Serv. 946 UNITED STATES of America, Plaintiff-Appellee, v. Ramiro ADAMES, Robert Lynn Jones, and Dennis Finch, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 737

56 F.3d 737

41 Fed. R. Evid. Serv. 946

UNITED STATES of America, Plaintiff-Appellee, v. Ramiro ADAMES, Robert Lynn Jones, and Dennis Finch Defendants-Appellants.

Nos. 94-1095, 94-1102 and 94-1186.

United States Court of Appeals Seventh Circuit.

Argued Oct. 4, 1994.

Decided May 17, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 7, 1996.

K. Tate Chambers, Asst. U.S. Atty., Office of U.S. Atty., Peoria, IL, Patricia A. Tomaw (argued), Office of U.S. Atty., Springfield, IL, for plaintiff-appellee U.S.

Nancy Barohn (argued), San Antonio, TX, for defendant-appellant Ramiro Adames.

Ronald P. Guyer (argued), San Antonio, TX, for defendant-appellant Robert Lynn Jones.

Richard H. Parsons (argued), Peoria, IL, for defendant-appellant Dennis Finch.

Before FLAUM and CUDAHY, Circuit Judges, and ROSZKOWSKI, District Judge. ^*

ROSZKOWSKI, District Judge.

This is the consolidated appeal of the convictions of Ramiro Adames, Robert Lynn Jones, and Dennis Finch for conspiracy to distribute marijuana, Jones' conviction for distribution of cocaine, and the sentences of Jones and Adames. For the reasons that follow, the convictions and sentences are affirmed.

Background

In the spring of 1986, Randy Mustread and Robert Lynn Jones became partners in a marijuana distribution scheme, buying and selling small amounts of the drug. Their business grew, and in early 1987, they traveled to Dallas, Texas, where they met Dwight Bookout. Bookout introduced them to Ramiro Adames as a source for marijuana. Thereafter, they traveled to Texas periodically to purchase marijuana from Adames. They would transport the marijuana back to Illinois and store it on a farm owned by Travis Hammond. After several trips, they hired Dennis Finch to drive the van to and from Texas.

The amounts of marijuana purchased from Adames soon increased, and Adames began delivering the marijuana by semi-tractor trailer to Bookout's warehouse in Dallas. These loads were as large as 1,000 pounds, and Jones, Mustread and Finch received between 150 and 373 pounds each time.

In November 1987, Jones and Mustread traveled to Texas hoping to purchase 700 to 800 pounds of marijuana from Adames. Adames could not supply it as promised because he had been arrested while trying to purchase 1,500 pounds of marijuana from undercover narcotics agents. After his arrest, Adames introduced Jones and Mustread to his brothers, Danny and Santos, who then sold marijuana to them. During this same period, Jones and Mustread also purchased cocaine from another source. On the evening of December 23, 1987, Jones and Mustread purchased a kilogram of cocaine from two men at the Ramada Inn in Wentzville, Missouri.

Defendant-Appellants Adames, Jones and Finch, along with Bookout and Hammond, were indicted in the Central District of Illinois for conspiracy to distribute marijuana. Jones was also charged with distribution of marijuana, conspiracy to distribute cocaine, distribution of cocaine, and using drug proceeds to conduct a financial transaction. Bookout pled guilty, and the charges against Hammond were dismissed. The conspiracy to distribute cocaine and distribution of cocaine counts were severed, and after a separate trial, Jones was convicted on both counts. Defendants Jones, Adames and Finch were convicted by a jury of all remaining charges in the indictment. Adames was sentenced to 240 months imprisonment, to run concurrent with a Texas state sentence that he was serving, and 10 years supervised release. Jones was sentenced to 240 months imprisonment, 10 years supervised release, and fined $25,000. Finch was sentenced to 78 months imprisonment and four years supervised release.

The three defendants filed timely notices of appeal, asserting several errors in the trial proceedings. Defendants Adames and Jones also appeal the sentences that were imposed under the United States Sentencing Guidelines. We will address each of the issues in turn.

The Texas Sting

In November of 1987, Adames was arrested in Texas along with five other persons unconnected to this case while attempting to purchase 1,500 pounds of marijuana from two undercover narcotics agents. This is known as the Texas sting. At trial, the district court admitted evidence of the Texas sting on the grounds that it was directly related to the marijuana distribution conspiracy charged in the indictment.

The defendants contend that the district court erred in admitting evidence of the sting. First, they argue that the Texas sting was a separate, extraneous conspiracy, and Mustread's testimony was insufficient to tie it to the marijuana distribution conspiracy charged in the indictment. They contend that the sting was introduced simply to demonstrate Adames' character as a drug dealer, evidence that is expressly prohibited by Rule 404(b). Second, they argue that even if such evidence was admissible without regard to Rule 404(b), the prejudicial effect outweighed the probative value, and, therefore, it should have been excluded pursuant to Rule 403.

Federal Rule of Evidence 404(b) allows the admission of evidence of other crimes, wrongs, or acts as "proof of motive, opportunity, intent," or other related purpose, but not to prove the character of a person in order to show an action in conformity therewith. However, Rule 404(b) does not apply when the other acts are directly related to the charged offense. United States v. Sophie, 900 F.2d 1064, 1076 (7th Cir.1990), cert. denied, 498 U.S. 843, 111 S.Ct. 124, 112 L.Ed.2d 92 (1990). Other crimes or acts done to further the goals of the conspiracy are not subject to Rule 404(b) analysis. United States v. Diaz, 994 F.2d 393, 395 (7th Cir.1993). A district court's decision to admit "other acts" evidence as furthering the conspiracy is reviewable under an abuse of discretion standard. United States v. Soria, 965 F.2d 436, 440, 442 (7th Cir.1992). Of course, Rule 403 protects a defendant against the admission of evidence that is unduly prejudicial, with or without reference to Rule 404(b), and that decision is also reviewed for abuse of discretion. Diaz, 994 F.2d at 395.

The Government linked the Texas sting to the distribution conspiracy through the testimony of Mustread and Sergeant De La Garza, the undercover agent involved in the sting. Mustread testified that in early November 1987, he and Jones met Adames at Bookout's warehouse, expecting to receive 700 to 800 pounds of marijuana from him. Adames told them he was unable to deliver the marijuana as promised because he had been arrested in the sting. De La Garza testified that he was negotiating to sell 1,500 pounds of marijuana to Adames and two other individuals, namely Duke and Hale. Duke and Hale had enough money to purchase about 500 pounds. That left 1000 pounds for Adames, approximately the amount promised for sale to Jones and Mustread. The date of the sting and Jones and Mustread's trip to Texas also correspond.

Mustread also described the sting's effect on the distribution conspiracy with respect to the quantities and delivery of marijuana. He testified that after the sting, Adames reduced the amount of marijuana supplied to Jones and Mustread and changed the method of delivery. He introduced Jones and Mustread to his brothers, Santos and Danny. Santos then delivered marijuana to Illinois, and Jones and Mustread bought marijuana from Danny in Texas. Because Adames had money problems after his arrest, Jones and Mustread purchased a car for him in which to deliver marijuana to Illinois. Also apparently because of the arrest, Jones and Mustread helped Adames move 2,000 pounds of marijuana out of the Adames Auto Service Center for storage elsewhere.

Mustread's testimony was sufficient to link the Texas sting to the marijuana distribution conspiracy. The district court heard Mustread's testimony, observed his demeanor and determined that he was a credible witness. Credibility determinations are given the utmost deference on appeal, and we find no clear error in that determination. United States v. Hatchett, 31 F.3d 1411, 1418 (7th Cir.1994); United States v. Zarnes, 33 F.3d 1454, 1474 (7th Cir.1994). Therefore, the district court did not abuse its discretion by ruling that the Texas sting was direct evidence of the charged conspiracy and not character evidence prohibited by Rule 404(b).

Nor do we find that evidence of the sting was unduly prejudicial. As this Court has noted before, all probative evidence is prejudicial to the party against whom it is introduced. Sophie, 900 F.2d at 1076. But in this case, the prejudice was not unfair. The details of the Texas sting were not shocking or repulsive, such as to elicit an emotional response from the jury. United States v. Peters, 791 F.2d 1270, 1294 (7th Cir.1986) (evidence is unfairly prejudicial if it arouses a sense of horror or otherwise produces an emotional response that would cause the jury to base its decision on something other than the evidence), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986). Hence, the district court did not abuse its discretion by allowing testimony regarding the Texas sting.

Material Variance Between Indictment and Proof

The defendants also argue that the admission of testimony regarding the Texas sting created a fatal variance between the proof at trial and the conspiracy charged in the second superseding indictment. Relying on Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), they contend that where the Government alleges the existence of a single conspiracy in the indictment but presents evidence at trial proving the existence of more than one conspiracy, the variance between the indictment and proof is reversible error.

The defendants' argument is flawed whether or not the Texas sting was related to the conspiracy charged. If the transaction resulting in the sting was carried out in furtherance of the distribution conspiracy, it would be part of that...