U.S. v. Diaz, s. 88-1772

• Decision Date: 09 June 1989
• Docket Number: Nos. 88-1772,88-1807 and 88-2286,s. 88-1772
• Citation: 876 F.2d 1344
• Parties: 28 Fed. R. Evid. Serv. 286 UNITED STATES of America, Plaintiff-Appellee, v. Heriberto DIAZ, Yvette Huertas and Wilfredo Mojica, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1344

876 F.2d 1344

28 Fed. R. Evid. Serv. 286

UNITED STATES of America, Plaintiff-Appellee, v. Heriberto DIAZ, Yvette Huertas and Wilfredo Mojica Defendants-Appellants.

Nos. 88-1772, 88-1807 and 88-2286.

United States Court of Appeals Seventh Circuit.

Argued Dec. 6, 1988.

Decided June 9, 1989.

Gary Ravitz, Bradley Harris, Ari M. Trubitt, Mitchell D. Kreiter & Associates, Chicago, Ill., for defendants-appellants.

Anton Valukas, U.S. Atty., Chicago, Ill., David J. Stetler, Chief, Victoria J. Peters, Deputy Chief, Andrea L. Davis, Zaldwaynaka L. Scott, Asst. U.S. Attys., Criminal Receiving and Appellate Div., for plaintiff-appellee.

Before COFFEY, MANION and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Heriberto Diaz, Yvette Huertas and Wilfredo Mojica appeal their convictions on charges of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. Sec. 846, and of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). We affirm.

I FACTS

Heriberto Diaz, Yvette Huertas and Wilfredo Mojica were subjects of a three count indictment charging each of them with one count of conspiracy to possess with intent to distribute and distribute cocaine, as well as another count of possession of cocaine with intent to distribute. These indictments stemmed from drug arrests that took place on September 11, 1987, in Chicago, Illinois. ¹

The events began with an August 27, 1987, drug transaction between co-conspirator William Contreres and Drug Enforcement Administration (DEA) Agent Randy Clifton. ² On that date, Agent Clifton, who was acting in an undercover capacity, was seated in a vehicle outside the Los Sombreros Lounge at 3934 West Division Street in Chicago, Illinois. Accompanying Agent Clifton in the automobile was a DEA confidential informant, Angel Ortega. While Clifton and Ortega were seated in the automobile, co-conspirator William Contreres and one Jorge Cerrano approached the driver's side window. Contreres advised Agent Clifton that the cocaine would arrive shortly. Clifton gave Contreres the number for the pager which he carried and instructed Contreres to contact him when the cocaine was delivered. Special Agent Clifton and Ortega departed the area. Approximately 20 minutes later, Contreres and Cerrano paged Agent Clifton, and Clifton and Ortega returned to the Los Sombreros Lounge.

Upon the arrival of Clifton and Ortega, Contreres and Cerrano again approached Clifton's automobile. Contreres told Clifton that the cocaine had arrived and instructed Clifton to drive one block west to the parking lot of an Amoco gas station where the narcotics transaction would be The cocaine transaction that resulted in the appellants' arrests and prosecutions occurred less than two weeks later. On or about September 9, 1987, Confidential Informant Ortega received a telephone call from Contreres, in which Contreres told Ortega that he had a kilogram of cocaine ready for delivery to Agent Clifton. A purchase price between $21,000 and $23,000 was discussed.

completed. After arriving at the parking lot, Contreres entered the back seat of Clifton's car, while Cerrano remained outside. Contreres reached inside his coat pocket and handed Clifton a plastic sandwich bag containing approximately one ounce of cocaine. Clifton gave Contreres $1,300 in United States currency. Prior to leaving Clifton's automobile, Contreres told Clifton that he could supply Clifton with larger quantities of cocaine. Clifton asked Contreres if he could supply "kilogram quantities," to which Contreres replied, "No problem."

Two days later, during the late morning hours of September 11, 1987, Ortega received another telephone call from Contreres. Contreres again stated that he was ready to deliver one kilogram of cocaine, and inquired concerning the delay in the transaction. Ortega gave Contreres a DEA telephone number, and Contreres agreed to call Ortega at that number later on the same day.

Subsequently, Contreres made two telephone calls to Ortega at the DEA office. In the first call, Contreres told Ortega that the kilo of cocaine was ready and that Ortega should meet him at 1:00 p.m. that afternoon at the corner of Pulaski and Armitage in Chicago, Illinois to execute the drug transaction. In the second phone call, Ortega told Contreres that they would arrive a little later than planned, but that they would be there.

Clifton and Ortega then drove to the designated location, followed by DEA agents who established surveillance in the vicinity. When Clifton and Ortega arrived at the corner of Pulaski and Armitage, they were met by Contreres and an unidentified male. Contreres approached the window of Clifton's vehicle and instructed Clifton to drive one block south on Pulaski where they would meet in a parking lot located across the street from a fire station.

Contreres and the unidentified male then got on a red motorcycle, and drove to the parking lot followed by Clifton and Ortega. Upon arriving at the parking lot, Contreres again approached Clifton's car. Contreres informed Clifton that Clifton had missed the cocaine delivery because he was late, that a telephone call would need to be made to arrange for redelivery of the cocaine, and estimated that it would take approximately one-half hour for the cocaine to arrive.

Confidential Informant Ortega then left the vehicle, while Agent Clifton remained inside. Ortega, Contreres and the unidentified male entered a house located at 1739 North Pulaski, which was directly across the street from the parking lot where Agent Clifton was parked. The house was later identified as the residence of defendant Wilfredo Mojica. Upon arriving at Mojica's residence, Contreres advised Mojica, who was in the bathroom, that the person with the money for the cocaine was now present. Contreres introduced Mojica to Ortega when Mojica left the bathroom. Mojica told Ortega that he would call the individual who could deliver the cocaine on that person's paging device, and proceeded to dial a telephone number.

The unidentified male who had accompanied Contreres on the red motorcycle left the residence and approached Clifton's car. He told Clifton to be patient, since the cocaine would arrive in about fifteen minutes. The male boarded the red motorcycle and proceeded north on Pulaski. Surveillance agents were unable to follow him. The unidentified male returned shortly thereafter, approached Agent Clifton's vehicle, handed Clifton a soda, and then left the area.

Subsequently, a red car arrived in front of Mojica's house. There is a conflict in testimony as to what transpired next. Agent Clifton, together with DEA Agent Oswaldo Amaro, who was conducting surveillance, testified that two individuals, later A short time later, Diaz, this time undisputedly accompanied by Huertas, returned to Mojica's residence in his red car. Instead of parking his automobile in front of Mojica's house, Diaz turned the vehicle into an alley which ran between the dwelling and the fire station directly north of the residence and parked his car behind the house. Diaz and Huertas left the car and entered the garage. The overhead doors of the garage which faced the alley were open, enabling surveillance agents to observe that Huertas was carrying a black purse or bag. Huertas testified that Diaz had told her to carry the bag, that she had not seen the bag previously, that she was unaware of the bag's contents and had never before been to Mojica's residence.

                identified as defendants Heriberto Diaz and Yvette Huertas, exited the car and approached the residence. 3   In contrast, Huertas testified that she was not present on this occasion.  Huertas' position was consistent with the testimony of Confidential Informant Ortega, who was in the house at the time, and who testified that he observed Mojica speaking only with Diaz.  In that conversation Mojica informed Diaz of the presence of the person who had the money to purchase the cocaine and instructed Diaz to get the cocaine and return to the house.  Diaz or both Diaz and Huertas (depending upon which version of the facts that is accepted) then left the residence.  Upon leaving the area, Diaz pulled his vehicle into the parking lot where Special Agent Clifton was seated.  Diaz then proceeded south on Pulaski, followed by surveillance agents who lost Diaz' vehicle in traffic
                

Confidential Informant Ortega testified that Diaz and Huertas then entered Mojica's house through the rear door. Ortega further testified that Huertas was carrying the black bag as she entered the residence. In contrast, Huertas testified that she gave the bag to Diaz while both were on the back porch of Mojica's dwelling, never entered the house and remained on the back porch. After Diaz and Huertas arrived, Contreres called to Ortega from the kitchen, telling Ortega to come to that room. Ortega testified that when he arrived in the kitchen, Diaz, Huertas, Mojica and Contreres were all standing around the kitchen table. Ortega walked over to the kitchen table. At that time, a package was removed from the black bag which Huertas had been observed carrying into the residence. The package was cut open and Ortega stated he observed what he believed to be cocaine. Ortega told the group that the cocaine looked satisfactory, that they should take the cocaine out to the car where Clifton was seated, and that Clifton would give them the money for the cocaine at the car. At least one of the defendants informed Ortega that the money was to be brought into the house. ⁴ Ortega and Contreres then left the house through the front door. Ortega remained on the sidewalk while Contreres approached Agent Clifton's car, advised Clifton that the cocaine had arrived and requested that Clifton bring the money for the cocaine into the residence. Ortega then displayed a pre-arranged arrest signal which informed surveillance agents that the cocaine was present in...