907 F.2d 629 (7th Cir. 1989), 88-1760, United States v. Martinez de Ortiz

Docket Nº:88-1760.
Citation:907 F.2d 629
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Margarita MARTINEZ DE ORTIZ, Defendant-Appellant.
Case Date:August 16, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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907 F.2d 629 (7th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Margarita MARTINEZ DE ORTIZ, Defendant-Appellant.

No. 88-1760.

United States Court of Appeals, Seventh Circuit

August 16, 1989

Argued April 17, 1989.

Reargued In Banc May 30, 1990.

Decided July 16, 1990.

Page 630

Eric J. Klumb, R. Jeffrey Wagner, Asst. U.S. Attys., John E. Fryatt, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

John Landa, Kenosha, Wis., Andrew Mishlove, Milwaukee, Wis., for defendant-appellant.

David R. Freeman, Federal Public Defender, St. Louis, Mo., Terence MacCarthy, Federal Public Defender, Carol A. Brook, Office of the Federal Public Defender, Chicago, Ill., for Federal Defenders of the Northern, Cent. and Southern Districts of Illinois, amicus curiae.

Before BAUER, Chief Judge, and CUMMINGS, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges. [*]

EASTERBROOK, Circuit Judge.

We granted rehearing in banc to decide whether a portion of Sec. 5.11 of this circuit's pattern jury instructions, Federal Criminal Jury Instructions of the Seventh Circuit Sec. 5.11 (1980), is consistent with Fed.R.Evid. 104 and Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). We conclude that it is not.

I

Kathleen Jaeger set up a purchase of cocaine in order to earn favorable treatment on criminal charges. Jaeger called Linda Cabeza, who had supplied Jaeger's boyfriend with cocaine in the past, and asked to buy more. Cabeza named three

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possible suppliers, including "Margarita". (The Jaeger-Cabeza phone conversations were taped.) In later conversations Cabeza reported that although other leads had fallen through, "Margarita" would supply enough cocaine. Linda Cabeza arranged for the shipment of eight kilograms to Chicago. Linda and "the person I told you I was gonna talk to" would fly from Miami to Chicago as the "guarantee for everything"; Alberto Cabeza, Linda's husband, would follow by car with the cocaine, which was to be transferred to Wisconsin, where Jaeger lived.

Jaeger picked up Linda Cabeza and Margarita Martinez de Ortiz at the airport in Chicago. Conversation was difficult. Martinez speaks no English, Jaeger no Spanish. Cabeza translated. According to Jaeger, the original deal was to "front" five kilograms to Jaeger--that is, supply them against promise of payment from the proceeds of resale--and to sell the other three kilograms in Chicago. Cabeza told Jaeger that she and Martinez were tired and wanted to go to a hotel, where they could rest and arrange for the delivery of another five to ten kilograms of cocaine. At the hotel the three conversed about why Linda Cabeza had turned to Martinez for cocaine. Jaeger testified about Cabeza's translations of Martinez's words and also said that she heard Martinez mention "kilo" and "Lydia" (one of the persons from whom Cabeza had been unable to obtain cocaine). Later that day Jaeger asked Martinez (through Cabeza) whether she could have all eight kilograms. Martinez replied (according to Jaeger's recollection of Cabeza's translation) that she thought Jaeger was nice and could have the entire shipment.

Alberto Cabeza arrived in Chicago late that night. He left three kilograms of cocaine in the hotel safe. Linda, Jaeger, and Martinez drove to Kenosha in one car, Alberto in another. Jaeger alone met Alberto in a parking lot and received five kilograms of cocaine. She was to resell them immediately and receive the remaining three after payment. Neither sale nor payment occurred. Federal agents arrested Alberto and seized the cocaine. Later they arrested Linda and Martinez and retrieved the other three kilograms from the safe in Chicago. The Cabezas pleaded guilty; Martinez went to trial and was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846. She was fined $5,000 and sentenced to ten years' imprisonment. Martinez was acquitted of possessing cocaine with intent to distribute it.

Martinez concedes that a conspiracy to sell cocaine existed; she denies being a member. The evidence does not show that Martinez saw or touched the cocaine in Chicago or Kenosha. Evidence against her consisted of Jaeger's testimony about Linda Cabeza's translations of her words, the snatches of Martinez's own speech (such as "kilo") Jaeger remembers, Linda Cabeza's statements on the phone that she would obtain cocaine from "Margarita", who would come to Chicago, and Martinez's presence during the movements associated with the transfer of drugs. Although the combination of Martinez's presence plus the words Jaeger remembers Martinez uttering might be sufficient to support a conviction, the case is much stronger when combined with the two kinds of hearsay: Linda's words on the phone, and Linda's translations of conversations that discuss drugs.

II

Declarations during the course and in furtherance of a conspiracy may be used as evidence. Fed.R.Evid. 801(d)(2)(E); United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); United States v. Van Daal Wyk, 840 F.2d 494, 496 (7th Cir.1988). The prosecutor asked the district judge to admit the tapes, plus Jaeger's reports of Linda Cabeza's words, under this co-conspirator exception to the hearsay rule. The district judge concluded that the prosecutor had established the necessary facts by a preponderance of the evidence. See Fed.R.Evid. 104(a); Bourjaily, 483 U.S. at 175-76, 107 S.Ct. at 2778-79; United States v. Santiago, 582 F.2d 1128 (7th Cir.1978). Rule 104(a) provides:

Preliminary questions concerning ... the admissibility of evidence shall be determined

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by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Rule 104(b) says in turn that whether evidence is relevant sometimes depends on a jury's resolution of factual disputes. Co-conspirator declarations are admissible if the judge concludes by a preponderance of the evidence that the defendant was a member of a conspiracy, and that the words were uttered during the course and in furtherance of the objectives of the conspiracy. Under Bourjaily and Rule 104(a) admissibility is a question for the judge. Whether statements are relevant to particular issues is a distinct question. Rule 104(b) reads:

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

The Advisory Committee's notes make clear that making the "finding" about the condition is the responsibility of the trier of fact--in this case, the jury. See also, e.g., Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure Sec. 5054 (1977). If evidence is both admissible and relevant, there is of course a third question: whether it is sufficient to support a verdict. Nothing we say in this opinion addresses the question whether hearsay alone is sufficient to support a verdict of guilt. We are concerned with the second step, relevance. And relevance must be decomposed into two components: absolute relevance, governed by Fed.R.Evid. 401, and conditional relevance, governed by Rule 104(b).

When the evidence is a co-conspirator's declaration, it is difficult to distinguish the admissibility decision from the relevance decision. Both depend on a finding that the accused was a member of the conspiracy. We know from Bourjaily and Rule 104(a) that the judge may consider hearsay when deciding whether the accused belonged to a conspiracy, and whether the declarations meet the other conditions for admission. The question before us is when, and for what purposes, the jury may consider the declarations so admitted.

On this question, the district judge gave confusing advice. The judge told the jury:

In determining whether the alleged conspiracy existed, and whether a particular defendant became a member of the conspiracy, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants.

. . . . .

.. In determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.

The first of these paragraphs says that when deciding whether a conspiracy existed and Martinez joined it, the jury may consider all of the evidence the judge admitted--including evidence that would be inadmissible hearsay but for the judge's decision under Rule 104(a). The second paragraph, limiting consideration to the "acts and statements of that particular defendant", may be understood as contradicting the first, as meaning that only direct evidence of Martinez's acts or out of Martinez's mouth may be used to decide whether Martinez joined the conspiracy. This is the traditional understanding of this excerpt from pattern jury instruction Sec. 5.11, and the most natural one for a jury. So read, the instructions conflict. If the second paragraph is required by Rule 104(b) or 401, or the substantive law of conspiracy, the verdict is in jeopardy because the force of this instruction was sapped by the first paragraph.

Neither the rules nor Bourjaily specify the use the jury may make of the evidence. What Rule 104(a) and Bourjaily do establish is that the jury does not decide the hearsay question. The question for the jury is one of the substantive law of conspiracy. Conspirators, like partners, are mutual agents. Declarations by others count against the accused only if the accused has joined the conspiracy personally.

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Linda Cabeza could not draft Martinez into a conspiracy; Martinez had to enlist. Unless her words and deeds place her among the conspirators, other persons' statements are...

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