U.S. v. Romo, s. 89-3012

• Citation: 914 F.2d 889
• Decision Date: 27 September 1990
• Docket Number: 89-3049,Nos. 89-3012,s. 89-3012
• Parties: 31 Fed. R. Evid. Serv. 481 UNITED STATES of America, Plaintiff-Appellee, v. David ROMO, Jr., Ann Romo, Juanita Romo, Defendants-Appellants. , and 89-3156.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 889

914 F.2d 889

31 Fed. R. Evid. Serv. 481

UNITED STATES of America, Plaintiff-Appellee, v. David ROMO, Jr., Ann Romo, Juanita Romo, Defendants-Appellants.

Nos. 89-3012, 89-3049, and 89-3156.

United States Court of Appeals, Seventh Circuit.

Argued May 8, 1990.

Decided Sept. 27, 1990.

R. Jeffrey Wagner, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

William S. Mautner, Atinsky, Kahn, Sicula & Teper, Milwaukee, Wis., for David Romo, Jr.

Mark A. Pumpian, Styles & Pumpian, Milwaukee, Wis., for Ann Romo.

Thomas Nelson, Milwaukee, Wis., for Juanita Romo.

Before BAUER, Chief Judge, MANION, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

MANION, Circuit Judge.

Defendants-appellants David Romo, Jr., Ann Romo, and Juanita Romo were convicted of conspiracy to possess cocaine with intent to distribute, and Ann and Juanita were convicted of various substantive offenses of cocaine distribution. ¹ David, Jr. and Ann were sentenced to 120 months imprisonment and five years of supervised release, and Juanita to 121 months imprisonment and five years supervised release. Defendants challenge their convictions on appeal; additionally, David, Jr. and Ann challenge their sentences. For the reasons set forth below, we affirm the convictions and sentences.

I.

In early 1988, Milwaukee police officers executed a search warrant at a tavern and the apartment above the tavern, in which David, Jr. lived. David Jr. was apparently in the process of purchasing the tavern from his father, David Romo, Sr. As a result of the search, they found a small amount of cocaine (.7 grams) in the apartment, and nine small packages of cocaine (totalling 7.1 grams) in the tavern. On July 8, 1988, a West Allis, Wisconsin Police Department undercover officer purchased three ounces of cocaine from Ricardo Reyes. ² The testimony at trial revealed that Reyes had purchased cocaine from Juanita Romo approximately 30 times during 1988; during several of these transactions, Reyes and Juanita would travel to David Romo, Sr.'s residence to pick up the cocaine. During the July 8 transaction, the officer met Reyes at Reyes' home, along with Juanita, Manuel Alarcon, and another woman. Juanita then left to pick up the cocaine, and was followed by another officer to Ann's residence. Juanita returned to Reyes' apartment and sold the officer three ounces of cocaine.

Testimony at trial also revealed that during this summer two people parked in front of the tavern and waited half an hour for David, Jr., who eventually came out and gave one of them a baggie with about one ounce of "white powder," stating that his father had told him to give it to them. A woman who stored cocaine for David, Sr. testified that on two occasions she delivered one ounce of cocaine to David, Jr., and on three occasions delivered cocaine to Juanita. She also testified that David, Sr. told her that whenever he was out of town she was to "take orders from David, Jr." for the cocaine business. Reynaldo Rosalez, who was storing and distributing cocaine for David, Sr., testified that he delivered cocaine to Juanita approximately six times, and to David, Jr. one time.

After being arrested in the fall of 1988, Ricardo Reyes decided to cooperate with the police. He arranged for an undercover officer to purchase an ounce of cocaine from Juanita, and to make two two-ounce and one three-ounce purchases from Ann. Reyes also testified that on one occasion Juanita gave him 1/16 of an ounce of cocaine to deliver, and that David, Jr. went with him, although they were unable to locate the buyer. After the arrest and cooperation of Angelo Rosalez, who was also involved in these drug transactions, the police conducted a search of Ann's apartment and found a loaded handgun and a triple-beam scale. Officers soon after searched Juanita's apartment and found numerous drug notes and needles.

II. Jury Instructions

A. Conspiracy instruction

All three defendants challenge the conspiracy instruction given by the district court. The instruction given by Judge Warren deleted the following paragraph from the Seventh Circuit Model Federal Jury Instructions:

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

Defendants claim that failure to give this part of the instruction constitutes reversible error because it not only allowed the jury to determine whether a conspiracy existed, but also whether a defendant was a member. Very recently this court considered this precise question and rejected a similar claim. In United States v. de Ortiz, 907 F.2d 629 (7th Cir.1990) (en banc ), we held that the Seventh Circuit Instruction is inconsistent with Fed.R.Evid. 104 and Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). "[T]he admission of declarations does not violate the Confrontation Clause even if hearsay supplies part of the foundation for the conclusion that the accused belonged to the conspiracy...." de Ortiz, 907 F.2d at 634. Given the decision in de Ortiz, the failure to give the instruction here was not error.

B. Missing witness instruction

Juanita challenges the district court's refusal to give a missing witness instruction regarding the government's failure to call as a witness her former boyfriend-turned-government-informant, Manuel Alarcon. To be entitled to such an instruction, a defendant must show two things. First, the absent witness must be peculiarly within the power of the government to produce. U.S. v. Rollins, 862 F.2d 1282, 1297 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2084, 104 L.Ed.2d 648 (1989); U.S. v. Mahone, 537 F.2d 922, 926 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976). Second, the missing witness' testimony must be such that it would "elucidate issues in the case" and not be irrelevant or merely cumulative. Rollins, 862 F.2d at 1298.

Even assuming Alarcon's testimony would have elucidated issues in the case, Juanita was not entitled to the instruction because she has failed to meet the first requirement. A defendant can show that the witness is peculiarly within the power of the government "by showing that the witness is only physically available to the" government or "that because of the witness' relationship with the [government], his ... testimony is, in pragmatic terms, only available to the other side." Rollins, 862 F.2d at 1297. Juanita does not dispute that Alarcon was "physically" available to both sides here. However, she incorrectly concludes that the fact that Alarcon had acted as a government informant meant that it was not within her control to obtain him as a witness. We have held that a witness' status as a government informant does not necessarily "establish that he was pragmatically available to testify only on behalf of the prosecution." Id. at 1298. Where defense counsel chooses not to call a witness, the district court's refusal to give the missing witness instruction is not error. Id. Juanita's counsel failed to subpoena Alarcon, to attempt to interview him, or to request that the government produce him as a witness or help in doing so. In fact, Juanita states in her brief that the government offered "to arrange" to produce Alarcon as a defense witness. Juanita therefore was not entitled to the missing witness instruction. This lack of unusual government control over Alarcon also justified the court's refusal to allow Juanita's counsel to comment upon Alarcon's absence from the trial. U.S. v. Keplinger, 776 F.2d 678, 702-03 (7th Cir.1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986) ("where the witness appears to be equally available or unavailable to both sides, we think it is well within the district court's discretion to refuse to allow such argument.") Id. at 703; see also U.S. v. Carroll, 871 F.2d 689, 692 (7th Cir.1989).

C. Entrapment instruction

Juanita claims the court erred in failing to give the jury an entrapment instruction as a theory of her defense. A defendant is entitled to a theory-of-defense instruction if (1) the instruction correctly states the law, (2) the theory is supported by the evidence, (3) the defense is not part of the charge, and (4) the failure to include the instruction would result in an unfair trial. United States v. Marren, 890 F.2d 924, 929 (7th Cir.1989); United States v. Douglas, 818 F.2d 1317, 1320-21 (7th Cir.1987). The evidence presented by the defendant "must demonstrate that there was sufficient evidence for a reasonable jury to find that the government induced her to commit the crime and that she was not predisposed to engage in the criminal conduct." United States v. Molinaro, 877 F.2d 1341, 1349 (7th Cir.1989). We make a de novo determination as to whether the defendant presented sufficient evidence for a reasonable jury to find a lack of predisposition and government inducement. Marren, 890 F.2d at 930. A defendant can claim entitlement to an entrapment defense while denying commission of the crime. Mathews v. U.S., 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988) ("even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.").

The government argues that the entrapment defense was not supported by the evidence. We agree. Juanita clearly failed to present sufficient evidence of lack of predisposition on her part to engage in cocaine transactions. Although she had no prior convictions, the government presented evidence that she had sold cocaine to Ricardo Reyes on approximately 30 prior occasions, ranging from 1/4 of a gram to 1/4 of a pound. A search of Juanita's residence had revealed numerous drug notes and needles. Angelo Rosalez testified that the name "Juane" in his drug notes referred to Juanita, and that he delivered cocaine to Juanita on three occasions....