866 F.2d 908 (7th Cir. 1989), 86-2837, United States v. Grier

Docket Nº:86-2837, 86-2838.
Citation:866 F.2d 908
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles H. GRIER and Isaac Harper, Defendants-Appellants.
Case Date:January 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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866 F.2d 908 (7th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles H. GRIER and Isaac Harper, Defendants-Appellants.

Nos. 86-2837, 86-2838.

United States Court of Appeals, Seventh Circuit

January 11, 1989

Argued Feb. 17, 1988.

Rehearing and Rehearing En Banc Denied Feb. 8, 1989.

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[Copyrighted Material Omitted]

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Thomas Nelson, Milwaukee, Wis., Robert Handelsman, Chicago, Ill., for defendants-appellants.

Francis D. Schmitz, Asst. U.S. Atty., John E. Fryatt, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, and WOOD and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Charles H. Grier and Isaac Harper were convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, and of utilization of a communication facility in furtherance of the conspiracy in violation of 21 U.S.C. Sec. 843(b). Although Grier and Harper were also indicted for possession of cocaine with intent to distribute in violation

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of 21 U.S.C. Sec. 841(a)(1), the jury returned convictions for a lesser included offense of possessing cocaine. Grier and Harper appeal their convictions. We affirm.

I. FACTUAL BACKGROUND AND DISTRICT COURT PROCEEDINGS

Charles H. Grier and Isaac Harper were among twelve defendants charged with drug violations in a 37-count indictment and tried before a jury with three other co-defendants. The indictments resulted from an extensive drug-trafficking investigation of another co-conspirator, Anthony F. Pipito (Pipito). The Federal Bureau of Investigation, in coordination with other law enforcement agencies, conducted the investigation. As part of the investigation, a court-authorized wire tap monitored conversations on Pipito's telephone at his Jackson Street apartment and on an extension of that telephone at Pipito's Prospect Avenue condominium from October 25, 1984, to November 30, 1984. Both residences were located in Milwaukee, Wisconsin. A pen register device recorded the telephone number called as well as the time of outgoing numbers called. The pen register also recorded the telephone numbers of the outgoing calls. The pen register malfunctioned and failed to record the telephone numbers of the outgoing calls from October 25, 1984, through October 29, 1984. In addition, a "trap and trace" mechanism recorded the originating numbers of incoming calls. Surveillance was also conducted with hidden microphones. 1

The wire tap and electronic surveillance disclosed that Pipito left Milwaukee for Florida on November 16, 1984, and returned on November 23, 1984. His co-conspirator Joseph Basile returned by car the following morning with a load of cocaine, which he delivered to Pipito. Pipito packaged the cocaine immediately.

Pursuant to a search warrant, Pipito's Prospect Avenue condominium was searched by law enforcement authorities a week later during the evening of November 30, 1984. Approximately five and three-quarter pounds (2,636.81 grams) of cocaine was found in his condominium's basement storage locker. The cocaine was packaged in separate bags and varied in purity from 72 percent to 90 percent. Substances used to dilute ("cut") the drugs were also found in a storage locker.

At trial Pipito's 23-year-old son, Anthony M. Pipito ("Anthony Jr." or "Pipito Jr."), testified concerning his father's cocaine business. 2 Prior to his testimony at this trial, Anthony Jr. pled guilty to participating in Pipito's drug conspiracy, was convicted, and was serving a two-year sentence. Anthony Jr. stated that he moved into Pipito's Jackson Street apartment with his father and his father's girlfriend (co-conspirator Gail Shill) on April 17, 1984, after his release from a halfway house for a prior non-drug conviction. Anthony Jr. moved to a condominium on Prospect Avenue on or about September 4, 1984, his father joined him in October 1984, and both continued to reside at this address through November 1984.

Anthony Jr. also testified about the organization, nature and scope of his father's drug conspiracy. He stated that he received and handled telephone orders for cocaine for his father, counted money, assisted in testing the drug's purity and conveyed money from time to time to a safety deposit box. Pipito's cocaine sources were two Colombians living in Florida. During the period between April and November 1984, Pipito took frequent trips to Florida to obtain drugs. Anthony Jr. testified that in April 1984 Pipito and Gail Schill were selling about five kilos (approximately 20 pounds) of cocaine per month. He also testified that as of November 1984, Pipito's total cocaine sales increased to three to four kilos a week, with individual sales ranging from one-eighth of an ounce to one-quarter of a pound. The thriving nature of Pipito's drug conspiracy in November 1984 was also reflected in a November

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4, 1984, recorded telephone conversation between Grier and Pipito in which Pipito stated that he had a beeper, a statement from which the jury could infer that the magnitude of his drug business had increased to such a degree that he now needed a beeper to serve his cocaine business.

With respect to Grier's involvement in the conspiracy, the government introduced recordings of 12 intercepted telephone conversations between Grier and/or his wife (Beverly) and Pipito. Nine of these phone calls were identified through the trap and trace procedure as originating from Beverly Grier's phone or through the pen register as outgoing calls from the Pipito condominium to Grier's phone. The intercepted telephone calls included a series of three calls made on October 29, 1984, with Grier asking Pipito if he could bring him "a couple of beers," and Pipito agreeing to make the delivery. During these three calls Pipito referred to Grier as "Chuck," and in one of the telephone conversations Pipito confirmed Grier's address with "Bev" (Grier's wife). At trial the manager of Grier's apartment complex identified Grier and testified that Grier had lived at the address recited in the telephone conversation with his wife, Beverly. During a November 2, 1984, phone call, Pipito asked Grier whether he wanted "a deuce." Grier again responded "Yea, a couple of beers." And later that same day Pipito called Charles Grier and referred to him as "Charles," Grier's true name. In recorded telephone conversations between Grier and Pipito on November 4, November 8, and November 12, 1984, arrangements were made for Grier to stop by "for a couple of beers."

Based upon the context of the time and other recorded conversations, it is clear that Grier used the term "beers" as a code word for drugs. As we recently noted in United States v. Vega, 860 F.2d 779, 795 (7th Cir.1988): "[C]ode words [are] always used by drug conspirators when they realize, as they do in today's drug culture, that their telephone conversations are frequently intercepted." Similarly, in United States v. Alvarez, 860 F.2d 801, 813-15 (7th Cir.1988), we addressed the question of code language for drugs in rejecting a contention that the evidence was insufficient to convict because the defendant's telephone conversations made no reference to narcotics. We relied on testimony from an experienced DEA undercover detective concerning the use of code words:

"Agent Arroyo testified that narcotics conspirators used code words as a matter of course in transacting their illicit business. For example, the words 'girl, white, shirt--those are about the most common ones that are used [to mean cocaine].' Agent Arroyo then went on to testify that '[y]ou can tell [that a word is a drug reference] by putting the word that they are talking about into the context of the whole telephone call conversation.' As he further testified:

'[I]f it is a person with a business, let's just say a grocery store owner, if I was talking to him on the telephone and I wanted to order some cocaine, he might say, "Do you want to buy one onion," referring to onion being white and that being cocaine.

If I wanted to buy some, let's say, heroin, he would say, "Do you want to buy one avocado," being dark, being the heroin.'

Thus, where an Italian-cuisine restauranteur was conducting a narcotics transaction on the telephone with one of the appellants, the restauranteur testified that his use of the words 'food' and 'spaghetti' were code words for cocaine."

Alvarez, 860 F.2d at 813-14 (citations omitted). We then went on to apply this analysis to specific conversations of the involved defendant, Gustavo Holguin, including these two:

"Concerning evidence offered directly against Mr. Holguin, the government introduced a transcript of a conversation between Mr. Holguin and Rudy in which Mr. Holguin informed Rudy that '[t]oday I couldn't get but two boxes of filters, you know?' The government contends that the reasonable inference of the code words 'boxes' and 'filters' is cocaine. Support for the government's position is found in the same conversation. For instance, Mr. Holguin told Rudy that a

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future shipment of 'boxes' will cost 'around eight and a half.' At trial, Agent Arroyo testified that if the price of cocaine was $38,000, the seller 'could either say to me, "It's 38." He could say to me, "It's 800." He could say to me, "It's 8," and I would understand that that one kilo is going to cost me $38,000.'

In another conversation between Mr. Holguin and Rudy, Mr. Holguin said, 'I'll make a special flight and bring you a sample so you can see it, analyze it.' Rudy responded, '[g]o on then, but send me something to mix with this, so that together they come out.' We think that a reasonable jury could easily have inferred from this conversation that Rudy was disappointed with the quality of cocaine that previously had been supplied by Mr. Holguin. Accordingly...

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