69 F.3d 192 (7th Cir. 1995), 94-3094, United States v. Pulido

Docket Nº:94-3094.
Citation:69 F.3d 192
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ruben PULIDO, Defendant-Appellant.
Case Date:November 02, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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69 F.3d 192 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ruben PULIDO, Defendant-Appellant.

No. 94-3094.

United States Court of Appeals, Seventh Circuit

November 2, 1995

Argued April 17, 1995.

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Brenda Atkinson, Asst. U.S. Atty., Duane J. Deskins (argued), Office of United States Attorney, Criminal Division, Chicago, IL, Barry Rand Elden, Chief of Appeals, Office of United States Attorney, Criminal Appellate Division, Chicago, IL, for U.S.

Robert A. Novelle, Joel A. Whitehouse (argued), Serpico, Novelle & Navigato, Chicago, IL, for Ruben Pulido.

Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

The appellant, Ruben Pulido, was arrested in Chicago, Illinois on November 17, 1993 after attempting to acquire cocaine from Mario Lopez, an associate who, unbeknownst to Pulido, was cooperating with the government. On March 16, 1994, a federal grand jury returned a two-count indictment against Pulido. Count I of the indictment charged him with conspiracy to distribute cocaine during the period from December 1992 to July 12, 1993, in violation of 21 U.S.C. Secs. 846 and 841(a)(1). Count II, stemming from the November 17, 1993 transaction that led to Pulido's arrest, charged Pulido with an attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846. At his arraignment on March 23, 1994, Pulido entered a plea of not guilty to these charges.

Following a two-day trial May 16-17, 1994, a jury convicted Pulido on both counts of the indictment. On August 25, 1994, the district court sentenced Pulido on each of the counts to 151 months imprisonment, to be followed by five years of supervised release. The terms of imprisonment and the periods of supervised release were to run concurrently. The court also imposed a fine of $4,000 and a special assessment of $100. Pulido appeals his conviction, challenging the evidentiary rulings of the district court, the court's refusal to sever Counts I and II, the sufficiency of the evidence, and the constitutionality of the cocaine conspiracy statute. We AFFIRM.

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I. BACKGROUND

At the time of his arrest in 1993, Ruben Pulido was three days short of his fifty-fifth birthday and had lived his entire adult life in Chicago, Illinois. The father of three grown children, he was a self-employed candlemaker who conducted a modest business under the name Frontier Candles. The evidence at Pulido's trial, including testimony from Mario Lopez (the associate whose cooperation with the government led to Pulido's arrest), established that Pulido had been part of an extensive drug distribution network during the six months prior to his arrest.

  1. Conspiracy to Distribute Cocaine: December 1992-July 1993

    The conspiracy in which Pulido took part involved numerous individuals and lasted from December 1992 until the middle of July 1993. The ringleader of this conspiracy was Esteban Zapata. After coming to Chicago, Illinois in the fall of 1992 as a fugitive on a drug-trafficking charge, 1 Zapata moved into an apartment with his cousin, Jose ("Tito") Santamaria, and Mario Lopez on South Drake Avenue ("the Drake Avenue apartment"). Zapata and Santamaria, who had previously joined and participated in drug dealings, resumed their illegal activity. Zapata was able to obtain significant amounts of cocaine from another cousin, Marco Zapata, who lived in Texas and had connections with a Mexican source named Marco Rodriguez. According to the testimony of Lopez, regular shipments of cocaine were delivered to members of the conspiracy in the Chicago, Illinois area beginning in late November of 1992.

    Mario Lopez testified that he helped Zapata pick up and distribute cocaine, in return for a percentage of Zapata's profits from the sale of that cocaine. Zapata, who had no driver's license, would typically send Lopez to pick up the cocaine at locations northwest of Chicago near Elgin, Illinois. Santamaria sometimes accompanied Lopez on these missions. Originally, Lopez received cocaine from a person named Melvin, but later dealt exclusively with "Cuco." Cocaine changed hands at these meetings, but cash did not. Payment was not expected for a period of between several days and two weeks. After picking up the cocaine, Lopez would return to his girlfriend's apartment in Chicago, where he would place a call to Zapata or Santamaria at the "Siboney Lounge" or at the Drake Avenue apartment. Zapata would then give instructions regarding the quantity of cocaine to be delivered to him personally as well as to his various distributors, including Pulido.

    Santamaria was in charge of delivering Pulido's portion of these cocaine shipments. The procedure was for Pulido to drive his van in front of the building where Lopez' girlfriend resided, and for Santamaria to transfer the drugs into the van as quickly as possible. Again, the cocaine was supplied on credit. Pulido would usually meet Santamaria several days later to make payment. The cash received by Santamaria would then be counted by Zapata and his cohorts, who now included Santamaria, Mario Lopez, and an individual named Rolando Lopez. 2

    Mario Lopez did not deal directly with Pulido during the period from December 1992 to March 1993. Nevertheless, Lopez testified that he was familiar with Pulido's role as a distributor for several reasons: Santamaria told him about his dealings with Pulido, Lopez helped to count the money collected from distributors (including the cash collected from Pulido), and Lopez could observe Pulido's pick-ups first-hand because they took place in front of his girlfriend's residence. Lopez stored the cocaine at this location and handed it to Santamaria for delivery to Pulido. Lopez could see Pulido's van as it pulled up in front of the building for drug pick-ups.

    When Zapata had collected payment from his distributors, including Pulido, he would

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    contact his suppliers in Texas and their intermediary, Cuco. Mario Lopez and Santamaria would then be dispatched to deliver the money to Cuco at the same locations used for delivery of the cocaine. On these occasions, Cuco would often tell Lopez and Santamaria when the next shipment was due (usually within several days).

    According to Mario Lopez, Zapata received deliveries of cocaine about once every two weeks during the period between December 1992 and March 1993. Zapata supplied Pulido with cocaine on eight to ten separate occasions using the modus operandi described above, with Pulido receiving at least five kilograms from each shipment.

    This cycle of delivery, distribution, and payment was broken in March of 1993 when Zapata's suppliers cut him off, claiming that they had been "shorted" in the amount of $300,000. Zapata disputed this claim and tried to persuade his suppliers to resume shipments. Marco Rodriguez, one of Zapata's suppliers, came to Chicago in late April 1993 to try to ascertain who was actually responsible for the allegedly missing money. Meanwhile, Pulido and the other distributors were anxious to do business and checked in periodically with Zapata, Santamaria, Rolando Lopez, and Mario Lopez at the Drake Avenue apartment. Thus, according to the government, the conspiracy continued even after the drug supply dried up in March of 1993.

    A court-approved wiretap 3 of Zapata's telephone commenced on April 22, 1993, after deliveries of cocaine had ceased on account of the dispute between Zapata and his suppliers. Using this court-approved wiretap, the government intercepted conversations between Zapata and Pulido, Santamaria and Pulido, Mario Lopez and Pulido, Zapata and other distributors, and Zapata and his suppliers. Many of these conversations had to be translated from Spanish into English and then transcribed before they could be presented to the jury at Pulido's trial. Monica Alvarez, the FBI translator who worked on these translations, testified that she was able to identify most of the speakers (a) by using the logbook kept by FBI agents while monitoring the calls, (b) by relying on a speaker's self-identification (e.g., "It's Ruben"), or (c) by comparing "unidentified" voices with previously identified voices. Nevertheless, Alvarez admitted under cross-examination that she was unable to identify all of the instances in which Pulido spoke until Lopez assisted with the process of voice identification. Lopez testified that he listened to the tape recordings and that he could identify who was speaking on them because he had been familiar with the speakers. Lopez also testified that he reviewed the transcripts prepared by Ms. Alvarez and the FBI and that the final voice identifications on those transcripts were accurate.

    In these recorded conversations, the speakers use terms such as "family," "donkey," and "work," all of which, according to Lopez, were coded references to cocaine. The following exchange, by way of illustration, occurred during the period after Zapata's suppliers cut him off, when Pulido and others were checking with Zapata regularly to see if or when shipments might resume:

    May 3, 1993 Pulido called Zapata and asked "what does the family say?" Zapata responded, "the family ... told me they are just barely going to get a ticket.... A little while ago they told me.... [m]aybe by Wednesday or so." Pulido replied "Okay. Call me as soon as the family arrives to go see them, to visit them."

    May 5, 1993 Pulido called and told Zapata that "Mother's Day is coming.... [a]nd it turns out that ... this woman isn't coming." Zapata replied: "No ... she doesn't come." Zapata elaborated that "she" was supposed to arrive but had not yet arrived. Pulido then asked: "it'll come at--at any time, then?" Zapata responded...

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